Effect Of Failure To Prove An Essential Ingredient Of An Offence

Effect Of Failure To Prove An Essential Ingredient Of An Offence

Spread the love

In the Supreme Court of Nigeria Holden at Abuja On Friday, the
19th day of February, 2021

image image

Before Their Lordships
Nwali Sylvester Ngwuta
John Inyang Okoro
Ibrahim Mohammed Musa Saulawa
Adamu Jauro
Emmanuel Akomaje Agim
Justices, Supreme Court
SC.896/2016

image

Between

ENGR. MICHAEL OKIGBO EMEKA APPELLANT
And

INSPECTOR GENERAL OF POLICE RESPONDENT

(Lead Judgement delivered by Honourable Ibrahim Mohammed Musa
Saulawa, JSC)

Facts

The Appellant and four others at large, were arraigned before
the High Court of the Federal Capital Territory on a nine-count
charge of criminal conspiracy, criminal trespass, mischief, house
breaking, forgery, impersonation and false information, contrary to
Sections 97, 342, 327, 364, 366, 179 and 140 respectively. It was
the case of the Respondent, that the Appellant had forged certain
documents and falsely represented himself to the Respondent as the
Managing Director of a certain Zuma Steel West Africa Limited, and
based on this false information, the Respondent had been misled to
approve and provide security details to the Appellant.

The Appellant pleaded not guilty, to all the nine counts. The
Respondent called four witnesses and at the conclusion of trial,
the trial court discharged and acquitted the Appellant of all the
nine counts. Dissatisfied with the decision of the trial court, the
Respondent appealed to the Court of Appeal. After hearing the
appeal, the Court of Appeal concluded that the Respondent’s appeal
was meritorious in part. The Court of Appeal consequently affirmed
the discharge and acquittal of the Appellant on counts 1 to 7 of
the charges against him, and found him guilty of the offence of
impersonation in count 8 and giving false information in count 9.
The Appellant was therefore, sentenced to twelve months
imprisonment on each of the two counts or payment of a fine of
N100,000.00 (One Hundred Thousand Naira) on each of counts 8 and 9
of the Charge. Aggrieved, the Appellant appealed to the Supreme
Court.

Issue for Determination

In its resolution of the appeal, the Supreme Court considered
the following sole issue submitted for determination by the
Appellant:
Whether having regard to the evidence adduced at the trial court,
the Court of Appeal was correct to have partially set aside the
judgement of the trial court by convicting the Appellant of counts
8 and 9 of the charges against him.

Arguments

Counsel for the Appellant argued that there was no evidence
beyond reasonable doubt in support of counts 8 and 9 of the charge
against the Appellant, contrary to Section 179 of the Penal Code.
He argued further that, none of the testimonies of the four
witnesses called by the Respondent at trial established the guilt
of the Appellant and supported his conviction on the two counts.
Counsel submitted that the exhibits relied upon by the Court of
Appeal, did not support its conclusion on the culpability of the
Appellant on the counts. He relied on the decisions in GWANGAWAN v
THE STATE (1998) 4 NWLR (PT. 547) 576 and ISIBOR v STATE (2002) 6
SCJN.

Arguing in opposition, counsel for the Respondent submitted that
the Court of Appeal critically evaluated the exhibits and was
therefore, not in error in its conclusion based on the same.
Counsel urged the Apex Court to affirm the decision of the Court of
Appeal.

Court’s Judgement and Rationale

Deciding the sole issue, the court held that the Prosecution, in
proving an allegation of false personation under Section 179 of the
Penal Code, has the uphill task of proving beyond reasonable doubt
that (i.) The accused falsely personated another; (ii.) That he
made an admission, while in the character and name of that person;
and (iii.) That the admission was made in a civil or criminal
proceeding. The court held further that with regard to count 9 of
the Charge of false information with intent to mislead a public
servant contrary to Section 170 of the Penal Code, the Prosecution
has the burden to prove that (i) The accused gave information with
intent to mislead a public servant; (ii) He knew or had reason to
believe that the information was false when giving same; and (iii)
The accused intended to cause, or knew that the information was
likely to cause the public servant to act on the false
information.

Relying on Section 135(2) & (5) of the Evidence Act and its
decisions in ILORI v THE STATE (1980) 8-11 SC 18, EMEKA v THE STATE
(2011) 14 NWLR (Pt. 734) 668, the Apex Court held the Prosecution
ought to prove each of the 9 counts of the charge against the
Appellant beyond reasonable doubt in any of the following manners:
(i.) By the confessional statement of the accused person; (ii.) By
direct evidence of an eye witness who must have witnessed the
commission of the offence; or (iii) By circumstantial evidence
thereby linking the accused person, and no other person, with the
commission of the said offence.

The court held that the Court of Appeal failed to accord due
regard to the Exhibit B1 and Exhibit B2/G, the special board
resolution appointing the Appellant as Managing Director of the
said Zuma Steel Africa Ltd and the letter of appointment shown by
the Appellant as evidence of his appointment, and the fact that the
Respondent failed to discharge the burden of proof on it to
establish that the said documents were forged and were not genuine.
The court referred to the finding of the trial court, to the effect
that throughout the evidence of the Respondent’s witnesses, no
mention was made that the said documents were forged, and in the
absence of evidence that the two documents, which were the main
plank of the case were forged, all the allegations against the
Appellant, including the allegation of impersonation and false
information in counts 8 and 9 could not be sustained.

Their Lordships held that the finding of the trial court was
credible, unassailable and duly supported by evidence on record; as
such, there could not be any justification for the Court of Appeal
to come to an entirely different conclusion. The Court of Appeal
failed to properly evaluate Exhibit D1, the Appellant’s letter to
the Respondent requesting for security details, and if it had, it
would have appreciated that even though the letter was dated
30/10/2007, before the Appellant assumed office as the Managing
Director, it was delivered to the Respondent and received on
02/11/2007 which was clearly a couple of days after the issuance of
Exhibits B1 and B2/G which empowered the Appellant to validly
assume the position of the Managing Director of Zuma Steel West
Africa Limited.

The court concluded, on the authority of its decision in FRANCIS
OMOSEYE v THE STATE (2014) LPELR 22059 (SC), that if on the whole
evidence at the conclusion of trial, the court is left in a state
of doubt, the Prosecution would have failed to discharge the onus
of proof which the law lays upon it, and the Accused shall be
entitled to an acquittal. On this basis, the court held that the
Appellant ought to be entitled to an acquittal, given the wanton
failure of the Respondent to prove that he indeed, committed the
offence which he was charged with under counts 8 and 9 of the
Charge.

Appeal Allowed. Judgement of the trial court discharging and
acquitting the Appellants of all counts restored

Representation

Mohammed Ndayako, Esq. for the Appellant.

Simon Lough Esq. for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the
Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin &
Co.)

In the Supreme Court of Nigeria Holden at Abuja On Friday, the
19th day of February, 2021

image image

Before Their Lordships
Nwali Sylvester Ngwuta
John Inyang Okoro
Ibrahim Mohammed Musa Saulawa
Adamu Jauro
Emmanuel Akomaje Agim
Justices, Supreme Court
SC.896/2016

image

Between

ENGR. MICHAEL OKIGBO EMEKA APPELLANT
And

INSPECTOR GENERAL OF POLICE RESPONDENT

(Lead Judgement delivered by Honourable Ibrahim Mohammed Musa
Saulawa, JSC)

Facts

The Appellant and four others at large, were arraigned before
the High Court of the Federal Capital Territory on a nine-count
charge of criminal conspiracy, criminal trespass, mischief, house
breaking, forgery, impersonation and false information, contrary to
Sections 97, 342, 327, 364, 366, 179 and 140 respectively. It was
the case of the Respondent, that the Appellant had forged certain
documents and falsely represented himself to the Respondent as the
Managing Director of a certain Zuma Steel West Africa Limited, and
based on this false information, the Respondent had been misled to
approve and provide security details to the Appellant.

The Appellant pleaded not guilty, to all the nine counts. The
Respondent called four witnesses and at the conclusion of trial,
the trial court discharged and acquitted the Appellant of all the
nine counts. Dissatisfied with the decision of the trial court, the
Respondent appealed to the Court of Appeal. After hearing the
appeal, the Court of Appeal concluded that the Respondent’s appeal
was meritorious in part. The Court of Appeal consequently affirmed
the discharge and acquittal of the Appellant on counts 1 to 7 of
the charges against him, and found him guilty of the offence of
impersonation in count 8 and giving false information in count 9.
The Appellant was therefore, sentenced to twelve months
imprisonment on each of the two counts or payment of a fine of
N100,000.00 (One Hundred Thousand Naira) on each of counts 8 and 9
of the Charge. Aggrieved, the Appellant appealed to the Supreme
Court.

Issue for Determination

In its resolution of the appeal, the Supreme Court considered
the following sole issue submitted for determination by the
Appellant:
Whether having regard to the evidence adduced at the trial court,
the Court of Appeal was correct to have partially set aside the
judgement of the trial court by convicting the Appellant of counts
8 and 9 of the charges against him.

Arguments

Counsel for the Appellant argued that there was no evidence
beyond reasonable doubt in support of counts 8 and 9 of the charge
against the Appellant, contrary to Section 179 of the Penal Code.
He argued further that, none of the testimonies of the four
witnesses called by the Respondent at trial established the guilt
of the Appellant and supported his conviction on the two counts.
Counsel submitted that the exhibits relied upon by the Court of
Appeal, did not support its conclusion on the culpability of the
Appellant on the counts. He relied on the decisions in GWANGAWAN v
THE STATE (1998) 4 NWLR (PT. 547) 576 and ISIBOR v STATE (2002) 6
SCJN.

Arguing in opposition, counsel for the Respondent submitted that
the Court of Appeal critically evaluated the exhibits and was
therefore, not in error in its conclusion based on the same.
Counsel urged the Apex Court to affirm the decision of the Court of
Appeal.

Court’s Judgement and Rationale

Deciding the sole issue, the court held that the Prosecution, in
proving an allegation of false personation under Section 179 of the
Penal Code, has the uphill task of proving beyond reasonable doubt
that (i.) The accused falsely personated another; (ii.) That he
made an admission, while in the character and name of that person;
and (iii.) That the admission was made in a civil or criminal
proceeding. The court held further that with regard to count 9 of
the Charge of false information with intent to mislead a public
servant contrary to Section 170 of the Penal Code, the Prosecution
has the burden to prove that (i) The accused gave information with
intent to mislead a public servant; (ii) He knew or had reason to
believe that the information was false when giving same; and (iii)
The accused intended to cause, or knew that the information was
likely to cause the public servant to act on the false
information.

Relying on Section 135(2) & (5) of the Evidence Act and its
decisions in ILORI v THE STATE (1980) 8-11 SC 18, EMEKA v THE STATE
(2011) 14 NWLR (Pt. 734) 668, the Apex Court held the Prosecution
ought to prove each of the 9 counts of the charge against the
Appellant beyond reasonable doubt in any of the following manners:
(i.) By the confessional statement of the accused person; (ii.) By
direct evidence of an eye witness who must have witnessed the
commission of the offence; or (iii) By circumstantial evidence
thereby linking the accused person, and no other person, with the
commission of the said offence.

The court held that the Court of Appeal failed to accord due
regard to the Exhibit B1 and Exhibit B2/G, the special board
resolution appointing the Appellant as Managing Director of the
said Zuma Steel Africa Ltd and the letter of appointment shown by
the Appellant as evidence of his appointment, and the fact that the
Respondent failed to discharge the burden of proof on it to
establish that the said documents were forged and were not genuine.
The court referred to the finding of the trial court, to the effect
that throughout the evidence of the Respondent’s witnesses, no
mention was made that the said documents were forged, and in the
absence of evidence that the two documents, which were the main
plank of the case were forged, all the allegations against the
Appellant, including the allegation of impersonation and false
information in counts 8 and 9 could not be sustained.

Their Lordships held that the finding of the trial court was
credible, unassailable and duly supported by evidence on record; as
such, there could not be any justification for the Court of Appeal
to come to an entirely different conclusion. The Court of Appeal
failed to properly evaluate Exhibit D1, the Appellant’s letter to
the Respondent requesting for security details, and if it had, it
would have appreciated that even though the letter was dated
30/10/2007, before the Appellant assumed office as the Managing
Director, it was delivered to the Respondent and received on
02/11/2007 which was clearly a couple of days after the issuance of
Exhibits B1 and B2/G which empowered the Appellant to validly
assume the position of the Managing Director of Zuma Steel West
Africa Limited.

The court concluded, on the authority of its decision in FRANCIS
OMOSEYE v THE STATE (2014) LPELR 22059 (SC), that if on the whole
evidence at the conclusion of trial, the court is left in a state
of doubt, the Prosecution would have failed to discharge the onus
of proof which the law lays upon it, and the Accused shall be
entitled to an acquittal. On this basis, the court held that the
Appellant ought to be entitled to an acquittal, given the wanton
failure of the Respondent to prove that he indeed, committed the
offence which he was charged with under counts 8 and 9 of the
Charge.

Appeal Allowed. Judgement of the trial court discharging and
acquitting the Appellants of all counts restored

Representation

Mohammed Ndayako, Esq. for the Appellant.

Simon Lough Esq. for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the
Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin &
Co.)

Read more

Facebook Comments Box

Leave a Reply

Your email address will not be published. Required fields are marked *