GREGORY GODWIN DABOH & ANOR (APPELLANT)
v.
THE STATE (RESPONDENT)
(1977) All N.L.R. 146
Division: Supreme Court of Nigeria
Date of Judgment: 27th May, 1977
Case Number: SC.402/1975
Before: (Udoma, Bello, Obaseki: JJ.S.C)
This appeal is against the conviction of the two appellants by the High Court of Lagos State holden in Lagos on two counts in which they were charged, firstly that they had both conspired together on 14th July 1970 in Lagos to commit felony, that is to say, to induce by false pretences the Registrar of insurance in the Federal Ministry of Trade, to deliver the certificate of Registration as an Insurer to the Nigerian States Assurance Corporation Limited and thereby committed an offence contrary to section 516 of the Criminal Code, and secondly on the same day with intent to defraud, induced the Registrar of Insurance, Insurance Division, Federal Ministry of Trade, Lagos to deliver the certificate of registration as an insurer to the Nigerian Assurance Corporation Limited aforesaid had a credit balance of N50,000.000 in its account with the Bank of the North Limited and thereby committed an offence contrary to section 419 of the Criminal Code.
On conviction, the appellants were each sentenced to two years imprisonment on the first count and 18 months imprisonment on the second count; and sentences were ordered to run concurrently.
The case of the prosecution in support of the charges was that on 31st January 1969 by a formal application duly completed and signed by the 1st appellant as Executive Director, the Nigerian States Assurance Corporation Limited, applied to the registrar of insurance, Federal Ministry of Trade, to be and was duly registered as an insurer after other requisite forms had also been duly completed and submitted. The Nigerian States Assurance Corporation was then called upon to deposit N50,000.00 with a bank, and after having done so, to communicate the fact to the registrar of Insurance, Federal Ministry of Trade to enable the latter to grant and deliver to the company a certificate of registration as an insurer.
Subsequently, on the 14th of July, 1970 the 1st appellant as the Executive Director of the Nigerian States Assurance Corporation Limited met the 2nd appellant who at the material time was the Manager in charge of the Bank of the North Limited Apapa branch, at his office. The 2nd appellant then introduced the 1st appellant to Kafaru Ajala (P.W.6), then Accountant of the Bank of the North Limited and told him that the 1st appellant as the Executive Director of the Nigerian States Assurance Corporation Limited would be opening two accounts for his company with the Bank of the North Apapa Limited.
The second appellant at the same time handed over to Kafaru Ajala a cheque no. 000422 bearing the date for the sum of N50,000.00 which had issued by the first appellant from a cheque book numbered from 000361-000480, Exhibit 45, supplied by the United Bank for Africa Limited Benin City Branch to the Nigerian States Assurance Corporation Limited as its customer. The cheque was for the opening of a current account with the Bank of the North Limited, Apapa branch.
On receiving the cheque, Kafaru Ajala asked the 1st appellant for the resolution of his company appointing the Apapa branch of the Bank of the North as its bankers, the Article of Association of the company, and the certificate of incorporation of the company. The 1st appellant promised to bring these items to the bank during his next visit.
The 2nd appellant then instructed Kafaru Ajala to get the cheque no. 000422 for N50,000.00 receipted for under credit advice. On the instruction of the 2nd appellant, Patrick Ikechuku Olisa typed out another credit advice instead of the 1st one that was disapproved and torn off by the 2nd appellant which now reads:-"proceeds of deposit made by you N50,000.00" which is what appears in Exhibit P.28 and was signed by both the 2nd appellant and Kafaru Ajala. The credit advice Exhibition P.28 was thereafter delivered to the 1st appellant as a receipt for the payment of the sum of N50,000.00 by the cheque no. 000422 of 14th of July 1970.
Thereafter the cheque no. 000422 for N50,000.00 was passed on to the clerk in charge of clearing cheques, Rasaq Omotayo Ashiru (P.W.4) who on receiving it, registered the same in the cheques collection register of the bank, Exhibit P.4. Then contrary to normal practice and the usual course of business, instead of the cheque being treated as for collection by the passing of entry for the same by Rasaq Omotayo Ashiru, on the instruction of the 2nd appellant, the entry in the register was cancelled by Rasaq Omotayo Ashiru and the cheque returned to Kafaru Ajala who later handed it over to the 2nd appellant. No action was ever taken to have the cheque cleared and proceeds realized. The cheque was subsequently said to be lost, apparently in the hands of the 2nd appellant.
On 27th July 1970, a letter Exhibit P.27A signed by the 2nd appellant alone was addressed to and received by the registrar of insurance, Ministry of Trade, Insurance Division, confirming the assurance already given in a letter addressed to the Registrar of Insurance by the Nigerian States Assurance Corporation Limited that the deposit of N50,000.00 with the Bank of the North, Apapa branch would never be withdrawn from the bank by the 1st appellant without the prior consent and approval of the Registrar of Insurance.
On receiving these letters (Exhibits P.27 and P. 27A) the Registrar of Insurance issued and granted to the Nigerian States Assurance Company Limited the Certificate of Registration as an insurer dated 11th August 1970 Exhibit P.42 under the Insurance Companies Act 1961 authorising the company to carry on specified classes of insurance business. The certificate of Incorporation was handed over to and received by the 1st appellant who also signed for it.
By its letter dated 6th October 1970 Exhibit P. 43, written from its head office in Kano, the Bank of the North repudiated and depreciated the information and representation which its Apapa branch had communicated to the effect that Nigerian States Assurance Corporation ever had at any time a deposit of the sum of N50,000.00 to its credit and in its favour.
The Registrar of Insurance therefore addressed to the 1st appellant a letter Exhibit 2D2 calling for the original copies of the bank statements; cash books and such other documents to establish that the company is operating within the margin of solvency as defined under section 4 of the Insurance Companies Act 1961.
When the 1st appellant failed to comply with the request within the stipulated time, the Registrar of Insurance cancelled the Certificate of Insurance granted to the Nigerian States Assurance Corporation Limited and the fact of the cancellation was published as Government Notice No. 1225.
The extra-judicial statement of the 1st appellant, Exhibits P. 15 and P. 16 which were made to the police were also tendered and admitted as forming part of the case for the prosecution.
At the close of the case for the prosecution, counsel representing the 1st appellant made a submission that the prosecution had not made out a prima-facie case against the appellant to warrant his being called upon to defend, and therefore the 1st appellant should be discharged.
The trial Judge having given consideration to the submission made to him upheld the submission in the respect of the 1st count and discharged both appellants, but overruled it in respect of the 2nd and 3rd counts, now the subject of this appeal. As a result of the ruling the 1st appellant refused to take further part in the proceedings of the trial and rested his case on the submission of "no case". The 2nd appellant gave evidence in his own defence.
HELD:
(1) The evidence in the instant case was sufficient at that stage to entitle the trial Judge not to express opinion one way or the other but to overrule any submission of no case to answer, and to rule positively that a prima-facie case had been made out by the prosecution which at the very least, called for some explanation by the first appellant. To so rule does not in any way shift the burden of proof from the prosecution into the first appellant; nor did it mean necessarily that the first appellant was guilty of the offence charged.
(2) There is no doubt whatsoever that from all the circumstances of the case on appeal, the only reasonable and irresistible inference to be drawn from the evidence must be that there was a definite agreement, a scheme-a contrivance if you like, between the 1st and 2nd appellant to induce the Registrar of Insurance to issue to the 1st appellant as Executive Director of the Nigerian States Assurance Corporation Limited a Certificate of Registration as an insurer. It was in furtherance of that agreement that the second appellant accepted the cheque no. N50,000.00 well knowing that the Nigerian States Assurance Corporation Limited did not have that much in the United Bank for Africa, Benin city branch and consequently passed it to the cheque clearance clerk.
(3) The present charges against the appellants do not fall within the catagories enumerated in the Federal Revenue Decrees. The provisions of section 7(3) relates to matter the proceedings in which are to be initiated at the instance of the Attorney-General of the Federation.
(4) We hold that unless and until the Director of Public prosecutions or for that matter the Attorney-General of the Federation has been designated under section 344 of the criminal procedure law of a state as the proper authority to file information for the prosecution of offenders to be charged with the offences of the kind under consideration in this appeal, the appropriate court seised with the jurisdiction for the trials of such must be the state High Court.
Appeal dismissed
Chief Obafemi Awolowo
(with him Mr Olaniwun Ajayi,
Mr Banjo Solaru, Mr Dele Awoniyi
Mr Tunji Omisore and Mrs Ayo
Soyode) for the 1st Appellant.
Mr George Uwuchue for the 2nd Appellant.
Mr A.O. Ejiwunmi, Acting Director of Public Prosecution
(with him Mr A. Wilson) for the respondent
Cases referred to:
(1) Adebiyi Mejekodumni v the Queen 14 WACA 64
(2) Momo Malick v R Lagos No. 119 of 1953
(3) Mulchay v R law report 3 H.L. 306
(4) Queen v Azu Owoh & ors (1962) 1 All N.L.R. 659
(5) R.V Brisac 4 East 164, 171
(6) R.V Simmons (1969) 1 Q.B. 685
(7) Rex v Plummer (1902) 2 K.B at page 348
(8) Wahabi Olusanya Mumuni v. The State (1975) 6 S.C.79
Statutes referred to:
(1) Criminal Code
(2) Federal Revenue Court No. 13 or 1973
Sir Udo Udoma, J.S.C.:-This appeal is against the conviction of the two appellants by the High Court of Lagos State in Lagos on two counts in which they were charged, firstly, that they both conspired together on 14th July, 1970 in Lagos to commit a felony, that is to say, to induce by false pretences the Registrar of Insurance in the Federal Ministry of Trade, to deliver the Certificate of Registration as an Insurer to the Nigerian States Assurance Corporation Limited and thereby committed an offence contrary to Section 516 of the Criminal Code; and secondly, that the two appellants on the same day with the intent to defraud, induce the Registrar of Insurance, Insurance Division, Federal Ministry of Trade, Lagos, to deliver the Certificate or Registration as an Insurer to the Nigerian States Assurance Corporation Limited by falsely pretending that the Nigerian States Assurance Corporation Limited aforesaid had a credit balance of N50,000.00 in its account with the Bank of the North Ltd., and thereby committed an offence contrary to Section 419 of the Criminal Code.
On conviction, the appellants were each sentenced to two years imprisonment on the first count, and 18 months imprisonment on the second count; and sentences were ordered to run concurrently.
They have both appealed to this Court against their conviction.
In view of the submissions made to us in respect of charges against the first appellant, that the learned trial Judge was wrong in law in overruling the submission of no case to answer made on behalf of the first appellant, it is necessary to examine more carefully and in greater detail the case of the prosecution.
The case of the prosecution in support of the charges against the appellants was that on 31st January, 1969, by a formal application duly completed and signed by the first appellant as Executive Director, The Nigerian States Assurance Corporation Limited, applied to the Registrar of Insurance, Federal Ministry of Trade, to be and was duly registered as an Insurer after other requisite forms has also been duly completed and submitted. The Nigerian States Assurance Corporation Limited was then called upon to deposit the sum of N50,000.00 with a bank, and after having done so, to communicate that fact to the Registrar of Insurance, Federal Ministry of Trade to enable the latter to grant and deliver to the company a Certificate of Registration as an Insurer.
Subsequently, on 14th July, 1970, the first appellant, as the Executive Director of the Nigerian States Assurance Corporation Limited met the second appellant, who at the material time, was the Manager in charge of the Bank of the North Limited, Apapa branch, at his office. The second appellant then introduced the first appellant to Kafaru Ajala (P.W.6). then Accountant of the Bank of the North Limited, Apapa branch, and told him that the first appellant, as the Executive Director of the Nigerian States Assurance Corporation Limited would be opening two accounts for his company with the Bank of the North Limited, Apapa Branch.
The second appellant, at the same time, handed over to Kafaru Ajala, a cheque No. 004422 bearing that date for the sum of N50,000.00 which had been issued by the first appellant from a cheque book numbered from 000361-000480, Exhibit 45, supplied by the United Bank for Africa Limited, Benin City branch to the Nigerian States Assurance Corporation Limited as its customer.
The cheque, which was drawn on the United Bank for Africa Limited, Benin Branch in favour and to the credit of the Nigerian States Assurance Corporation Limited was for the opening of a current account with the Bank of the North Limited, Apapa Branch.
On receiving the cheque, Kafaru Ajala spoke to the first appellant. He asked him for the resolution of his company appointing the Apapa Branch of the Bank of the North Limited as its bankers, the Articles of Association of the company, and the Certificate of Incorporation of the Company. The first appellant promised to bring these items to the bank during his next visit.
The second appellant then instructed Kafaru Ajala to get the cheque no. 000422 for N50,000.00 receipted for under Credit Advice. Kafaru Ajala thereupon gave the cheque, No. 000422, to Patrick Ikechuku Olisa (P.W.5), the shorthand typist employed by the bank and dictated to him for taking down in writing the wording of the Credit Advice in the following words:-
"Proceeds of cheque No. so and so N50,000"
or words to that effect. When as worded, the Credit Advice was passed on by Patrick Ikechuku Olisa to the second appellant, it was disapproved and torn off by the second appellant.
On the instructions of the second appellant, Patrick Ikechuku Olisa typed out another Credit Advice which reads:-"Proceeds of Deposit made up by you N50,000"
which is what appears in Exhibit P28 and was signed by both the second appellant and Kararu Ajala. The Credit Advice, Exhibit P28 was thereafter delivered to the first appellant as a receipt for the payment of the sum of N50,000.00 covered by cheque No. 000422 of 14th July, 1970.
Thereafter the cheque No. 000422 for N50,000.00 was passed on to the clerk in charge of clearing Cheques, Rasaq Omotayo Ashiru (P.W.4) who, on receiving it, registered the same in "the cheques for collection register" of the bank, Exhibit P4. Then contrary to normal practice and the usual course of business, instead of the cheque being treated as for colection by the passing of entry for the same by Rasaq Omotayo Ashiru, on the instructions of the second appellant, the entry in the register was cancelled by Rasaq Omotayo Ashiru and the cheque returned to Kafaru Ajala, who later handed it over to the second appellant. No action was ever taken to have the cheque cleared and the proceeds released. The cheque was subsequently said to be lost, apparently in the hands of the second appellant.
The first appellant, after having received the Credit Advice, requested that the bank should write a letter addressed to the Registrar of Insurance, Federal Ministry of Trade, certifying that the Nigerian States Assurance Corporation Limited had a deposit of the sum of N50,000.00 standing to its credit and in its favour.
The request by the first appellant was promptly complied with; and as a result, a letter, Exhibit P27, which was signed by both Kafaru Ajala and the second appellant was written, addressed and sent to, and later received by the Registrar of Insurance, Federal Ministry of Trade.
The second appellant then told Kafaru Ajala that the first appellant was expecting the sum of N100,000.00 to be telegraphically transferred through the United Bank for Africa Limited, Lagos, and that as soon as the money arrived, it would be split into two and paid into the Bank of the North Limited, Apapa branch, in such a way that N50,000.00 would be paid into a fixed deposit account and the balance of N50,000.00 into a current account-all to the credit and in favour of the Nigerian States Assurance Corporation Limited.
On 27th July, 1970, a letter, Exhibit P27A, signed by the second appellant alone was also addressed to, and later received by the Registrar of Insurance, Ministry of Trade, Insurance Division, confirming the assurance already given in a letter addressed to the Registrar of Insurance by the Nigerian States Assurance Corporation Limited, that the deposit of N50,000.00 with the Bank of the North Limited, Apapa Branch, would never be withdrawn from the bank by the first appellant without the prior consent and approval of the Registrar of Insurance. The duplicate of this letter was handed over to, and received by the first appellant.
On receiving the letters, Exhibits P27 and P27A, certifying that the Nigerian States Assurance Corporation Limited had a deposit of N50,000.00 with the Bank of the North Limited, and that the sum would never be withdrawn from the bank by the first appellant without the prior knowledge and consent and approval of the Registrar of Insurance, the latter issued and granted to the Nigerian States Assurance Corporation Limited the Certificate of Registration as an Insurer dated 11th August, 1970, Exhibit P42, under the Insurance Companies Act 1961, authorising the company to carry on specified classes of insurance business. The Certificate of Registration, Exhibit P42, was handed over to and received by the first appellant, who also signed for it.
By its letter dated 6th October, 1970, Exhibit P43, written from its Head Office in Kano, the Bank of the North Limited informed the Registrar of Insurance, Federal Ministry of Trade that it was not correct that the Nigerian States Assurance Corporation Limited ever had at any time a deposit of the sum of N50,000.00 to its favour with the Bank of the North Limited, and that the Bank of the North Limited had not at any time held to the credit and in favour of the Nigerian States Assurance Corporation Limited, any deposits in the sum of N50,000.00. By that letter, the Bank of the North Limited repudiated and deprecated the information and representation which its Apapa branch had communicated and held out to the Registrar of Insurance, Federal Ministry of Trade as contained in its letters, Exhibits P27 and P27A.
The Registrar of Insurance therefore addressed to the first appellant his letter dated 12th October, 1970, Exhibit 2D2, calling for the original copies of the bank statements, cash books and such other documents of the Nigerian States Assurance Corporation Limited "as would establish that the company is operating within the margin of solvency as defined under Section 4 of the Insurance Companies Act, 1961."
When the first appellant failed to comply with the request within stipulated time, the Registrar of Insurance, Federal Ministry of Trade, cancelled the Certificate of Insurance granted to the Nigerian States Assurance Corporation Limited; and the fact of the cancellation was published as Government Notice No. 1225.
The extra-judicial statements of the first appellant, Exhibits P15 and P16, which were made to the Police were also tendered and admitted as forming part of the case for the prosecution.
At the close of the case for the prosecution, learned Counsel representing the first appellant made a submission that the prosecution had not made out a prima facie case against the first appellant to warrant his being called upon for his defence and therefore that the first appellant should be discharged.
The learned trial Judge, after having given consideration to the submissions made to him, upheld the submission in respect of the first count, and discharged both appellants, but overruled it in respect of the second and third counts, now the subject of this appeal, the particulars whereof are set out in the first part of this judgment. It should be noted that the charge against the appellant originally contained three counts.
As a result of the ruling, the first appellant refused to take any further part in the proceedings of the trial and rested his case on the submission of "no case". The second appellant, unlike the first appellant, gave evidence in his defence.
Now before us, Chief Awolowo, learned Counsel for the first appellant, in a well-thought out and well reasoned argument has submitted that the learned trial Judge was wrong in law in failing to uphold the submission that no prima facie case had been made out against the first appellant to have warranted his being called upon for his defence.
Learned Counsel has contended that, in particular, the evidence of Kafaru Ajala who was the star witness for the presecution, although he would not go the length of saying that he was an accomplice in so far as the case of the first appellant was concerned, was virtually destroyed and Kafaru Ajala himself discredited, and therefore, his testimony did nothing to advance the cause of the prosecution in that he said that the cheque for N50,000.00 issued by the first appellant was certified. But that evidence was contradicted by both Rasaq Omotayo Ashiru and Nelson Bello, (P.W.8), the representative of the United Bank for Africa Limited, Benin City, both of whom denied that the cheque concerned was certified as the United Bank for Africa Limited has stopped the issue of certified cheques since 1969.
Learned Counsel then neatly pointed out that to establish the charge as laid in the second count successfully, it was the duty of the prosecution to prove that there was a positive agreement between the first and the second appellants to commit a felony, to wit, to induce the Registrar of Insurance to deliver the Certificate of Registration as an Insurer to the Nigerian States Assurance Corporation Limited of which the first appellant was Executive Director; and that such positive agreement was to do so by false pretences.
In respect of the third count, learned Counsel contended that the three essential elements which the prosecution ought to have proven were:
(i) that there was an intent to defraud;
(ii) that the first appellant actually induced the Registrar of Insurance to deliver to the Nigerian States Assurance Corporation Limited the Certificate of Registration; and
(iii) that the inducement was by false pretences;
and since the prosecution had failed to establish these elements on the evidence, submitted learned Counsel, the learned trial Judge ought to have ruled that there was no case for the appellant to answer.
On the facts, learned Counsel submitted that at the close of the case for the prosecution, the bulk of the facts established on the evidence was not in dispute, the element of controversy introduced by the evidence being when the United Bank for Africa cheque entered the scene a dispute arose as to whether or not the Nigerian States Assured Corporation Limited had at the material time a deposit of N50,000.00 with the Bank of the North Limited, Apapa branch.
On that issue, it was the submission of the learned Counsel that the statement of the first appellant made it clear that the deposit he paid on behalf of the Nigerian States Assurance Corporation Limited was in cash for N50,000.00 and not cheque, but Kafaru Ajala and Rasaq Omotayo Ashiru had said that the only payment made in that respect was by cheque for N50,000.00 which he submitted, was not even treated properly by the bank.
Learned Counsel then pointed out that on the evidence, the cheque for N50,000.00 dated 14th July, 1970, registered by Rasaq Omotayo Ashiru and the one for N50,00 only issued by the first appellant on 13th July, 1970, bear the same number 000422 and that they were both drawn on the United Bank for Africa, Benin City. Learned Counsel then submitted that there was something of a mystery around the two cheques; and that such a mystery had nothing to do with the first appellant. It was entirely a matter for the bank because the first appellant was quite positive that his cheque No. 000422 of 13th July, 1970, had nothing whatsoever to do with the sum of N50,000.00 in cash which at the instructions of the Registrar of Insurance, Federal Ministry of Trade, he had paid to the Bank of the North Limited, Apapa Branch, as deposit in favour of the Nigerian States Assurance Corporation Limited.
Finally, it was the submission of learned Counsel that the learned trial Judge ought to have discharged and acquitted the first appellant on the whole of the case because there was no iota of evidence of any agreement between the first and second appellants to commit any offence, let alone, a felony; that there was no evidence that the first appellant did anything to induce the Registrar of Insurance, Federal Ministry of Trade to deliver the
Certificate of Registration to the Nigerian States Assurance Corporation Limited. On the contrary, contended learned Counsel, on the evidence, the Registrar was induced by the letters, Exhibits P27, P27A and P28, written on behalf of, and delivered by the Bank of the North Limited, Apapa Branch, to the Registrar of Insurance, Federal Ministry of Trade.
These are important submissions. They are impressive and require careful examination and consideration.
Before, however, embarking upon such an exercise, it is perhaps expedient here to observe that it is a well-known rule of criminal practice, that in a criminal trial at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of an accused person postulates one of two things, or both of them at once.
Firstly, such a submission postulates that there has been throughout the trial no legally admissible evidence at all against the accused person on behalf of whom the submission has been made linking him in any way with the commission of the offence with which he has been charged, which would necessitate his being called upon for his defence. Secondly, as has been so eloquently submitted by Chief Awolowo, that whatever evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable court can be called upon to act on it as establishing criminal guilt in the accused person concerned; and in the case of a trial by jury, that the case ought therefore to be withdrawn from the jury and ought not to go to them for a verdict. On the other hand, it is well settled that in the case of a trial by jury, no less than in a trial without a jury, however slight the evidence linking an accused person with the commission of the offence charged might be, the case ought to be allowed to go to the jury for their findings as judges of fact and their verdict.
Therefore, when a submission of no prima facie case is made on behalf of an accused person, the trial