The State V. Chief Sebastian Ajuluchukwu & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

The two respondents in this appeal were the accused persons in charge No.HC/13C/2006 before the High Court of cross River State sitting at Calabar on a three count charge of:

1. Conspiracy contrary to Section 51g (6);
2. Stealing contrary to Section 390 (9);
3. Obtaining money by false pretences contrary to Section 419; all of the Criminal Code Cap.31 Vol. II Laws of Cross River State of Nigeria, 1983.

The particulars of offence are that between July and August 2004, the respondents conspired to steal the sum of N6.2m property of the Motor and Motorcycles Spare Parts Dealers Association of Nigeria, Calabar while the 2nd respondent with the company of the 1st respondent and with intent to defraud, obtained the sum of N6.2m from the Motor and Motorcycles Spare Parts Dealers Association of Nigeria, Calabar by falsely pretending that he (2nd respondent) had two hectares of land at Ikot Eneobong, Calabar Municipality to sell to the Association.

The Motor and Motorcycles Spare Parts Dealers association of Nigeria, Calabar will hereinafter in this judgment be referred to as the Association.

The respondents pleaded not guilty to the three counts and the prosecution called four witnesses. At the end of the evidence, the learned counsel to the respondents made a no case submission which the learned trial judge upheld and thereby discharged and acquitted the respondents.

The learned judge in his ruling dated 1sth July, 2008 found as follows:

“Based on the analysis above there is no prima facie evidence that the N6.2m was obtained by 1st accused at the time President of the Association, who merely handed over money and cheques to 2nd accused person and collected receipts therefore in the name of the Association and handed them over to the Association (Exhibits 7A-7E). The 1st accused person who received the monies and cheques and issued receipts therefore did not obtain the money and cheques by false pretences with any intention to defraud the Association having shown that indeed 2nd accused person had a land allocation from Federal Ministry of Housing (Exhibit 5) to transfer to the Association.”

See pages 60-61 of the Record of Proceedings.

Dissatisfied with the ruling and order of the lower court the appellant appealed to this court on four grounds. The learned counsel to the appellant, P. S. Bisong, Deputy Director of Public Prosecutions in the Ministry of Justice, Calabar filed a Brief of Argument in which he set the following as the issues for determination as distilled from the grounds:

1. Whether or not in view of the evidence adduced by the Appellant before the trial Court there was a prima facie case requiring some explanation from the respondents.
2. Whether the learned trial court was right in upholding the no case submission of the Respondents thus discharging and acquitting them.

The learned counsel argued that there was evidence that the 2nd respondent took the 1st respondent and members of Land Acquisition Committee of the Association to his land at Eneobong, Calabar which evidence the learned trial judge failed to consider. He submitted that the effect of the 2nd respondent dealing with the Association through 1st respondent was in law and in fact that the 2nd respondent was dealing directly with the Association and that amounted to conspiracy. He submitted that it is the subsequent conduct of the parties to a crime that will lead to the inference of conspiracy, citing Abacha vs. The State (2001) 3 NWLR (Pt. 699) 35, he submitted that conspiracy can be proved by drawing inferences from proven facts. He submitted that evidence abound in the instant case to show that the respondents acted in concert and agreed to commit the offences alleged against them. He stated that it was the 1st respondent that took the Association to 2nd respondent when there were no title documents to show for the money obtained by the respondents. He cited Patrick Ikemson vs. The State (1989) 6 SCNJ 54 at 70.

The appellant’s counsel stated that the learned trial judge failed to consider the material evidence before him especially exhibits tendered as well as the fact that the 2nd respondent represented to the Association that he had land at Eneobong, Calabar to sell to the Association which representation was false to 2nd respondent’s knowledge. He submitted that the learned trial judge failed to consider the definition of stealing in Section 383 (2) (f) of Criminal Code before concluding that there was no prima facie case. He submitted that there was sufficient, credible, admissible and admitted evidence that the two respondents had a case to answer for the sum of N6.2m, the money of the Association, part of which the 2nd respondent had paid. He argued that by the documents he presented, the 2nd respondent knew that he had no land to transfer, but took the money with criminal intent.

The learned counsel submitted that no land was allocated to the Association as what the 1st respondent told the Association was false and with intention to collect money from them fraudulently, citing Ijuaka vs. C.O.P (1976) 10 NSCC 285; Okonofua vs. The state (1981) 1 NCR 145.

He urged court to allow this appeal and set aside the ruling of the lower court.

Learned counsel to 1st respondent Essien H. Andrew Esq. in his own Brief of Argument stated the issue for determination to be: