Hon. Azubogu Chris Emeka Ifeanyi V. Federal Republic Of Nigeria (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMIRU SANUSI, OFR, J.C.A. (Delivering the Leading Judgment)

The appellant and another person who are Hon. Members of the House of Representatives of Nigeria were initially arraigned before the High Court of the Federal Capital Territory presided over by Umar J as second accused person, in charge No: FCT/CR/77/12 containing two counts.

The appellant and his colleague Hon. Iorwse Herman Hembe were jointly arraigned and charged though differently. The charge which the present appellant faced trial on at the FCT High Court (hereafter referred to as “the lower court”) as the second accused read as below:

COUNT TWO

That you, HON. AZUBOGU CHRIS EMEKA IFEANYI, sometime in October 2011 in Abuja within the Judicial Division of the High Court of the Federal Capital High Territorial dishonestly converted to your own use, the sum of $4,095 (Four Thousand and Ninety Five Dollars), being money given to you by the Securities and Exchange Commission as your travelling allowance to PUNCTACANA, in Dominion Republic, to attend a conference which you did not attend and thereby committed an offence contrary to Section 308 of the Penal Code Act, Laws of the Federation of Nigeria (Abuja) 1990 and punishable under Section 309 of the same code.

It is apt to repeat here that initially the appellant and the 1st accused were arraigned before Umar J of the same lower court, who commenced the trial and after taking the plea of both the appellant and the 1st accused. The prosecution (now respondent) called five witnesses to testify before Umar J and tendered some exhibits. However before the prosecution closed its case for undisclosed reason, the matter was transferred to Hon. Justice Kekemeke who started to hear the case de novo.

At the commencement of their joint trial before Kekemeke J on the same two counts, the appellant and the 1st accused pleaded not guilty to the charges. Trial then commenced in earnest and the prosecution/respondent called four witnesses to testify in proof of their case and also tendered some exhibits.

The facts of the case as could be gleaned from the record, is that the appellant as second accused and the 1st accused being Chairman and, Deputy Chairman of the House of Representatives Committee on Capital Market, were billed to attend a conference at Dominican Republic which was scheduled to hold from 17/10/2011 to 19/10/2011. The appellant was issued with ticket for the trip and his estacode on the night of 19/10/2011 after the conference would have concluded. This therefore according to him foisted on him the impossibility to, travelling with the organizers of the conference.

Then after the prosecution/respondent closed its case the learned defence counsel for the appellant and the 1st accused made a joint “Submission of No-Case to Answer” and the trial court later adjourned for Ruling in the “No Case Submission” on 26th June 2013, the learned trial judge delivered his Ruling on the ‘No case submission’ and overruled the same and held that prima facie case of criminal misappropriation was made against the appellant which would require him to explain or to enter his defence.

Aggrieved by the said Ruling, the Appellant appealed to this court vide a Notice of Appeal filed on the 4th of July, 2013, containing five grounds.

Parties thereupon filed and exchanged briefs of argument. From the totality of the grounds of appeal, a brief of argument was filed on behalf of the Appellant, wherein two issues were raised for determination by this Court, namely:

1. Did the Prosecution establish the essential elements of dishonest conversion to justify the Appellant being called upon to enter a defence?
2. Was the Respondent’s case not manifestly unreliable so as to negate a finding that the Respondent established a prima facie case?

For the Respondent, a sole issue was formulated from the grounds of appeal for determination of the appeal which read as below:

“Whether the trial court was right when it held that a prima facie case of criminal misappropriation has been made out against the Appellant requiring some form of explanation from him”

When the appeal came up for hearing on the 29th of January, 2014, Learned Senior Counsel for the Appellant, Dr. Onyechi Ikpeazu, SAN, adopted and relied on the Appellant’s brief of argument dated and filed on the 2nd of October, 2013, but deemed properly filed and served on the 24th of October, 2013, as well as the Appellant’s Reply Brief of Respondent’s brief filed on the 8th of November, 2013 and urged this Court to allow the appeal.