IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT APO- ABUJA ON TUESDAY 19 TH DAY OF MARCH, 2013

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1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT APO- ABUJA ON TUESDAY 19 TH DAY OF MARCH, 2013 BEFORE THEIR LORDSHIPS: HON. JUSTICE U.P KEKEMEKE (PRESIDING JUDGE) HON. JUSTICE V.V. M. VENDA (HON. JUDGE) CHARGE NO: CR/172/05 APPEAL NO: FCT/HC/CRA/09 BETWEEN: STANLEY CHIDOZIE APPELLANT AND COMMISSIONER OF POLICE RESPONDENT JUDGMENT Two accused persons were arraigned before the senior Magistrate Court of the second grade sitting at Wuse Zone II Abuja on an F.I.R, accusing them of the affences of Joint Act, Criminal breach of Trust and cheating contrary to sections 79, 312 and 322 of the Penal Code Act respectively. The 1 st Accused was Bello Abdulkareem while the 2 nd Accused was Stanley Chidozie. The 2 nd Accused is the Appellant in this case. The facts of the case are as follows:- The 1 st Accused, Bello, is a staff of WEMA Securities and Finance Plc, Abuja. He was appointed by his office to disburse loan facilities of N1. 5M and N , awarded for the execution of the project of construction of a Dam at Kilankwa 1, Kawli, Abuja. The 2 nd Accused was the site Engeer for this project. It is alleged that the 1 st and 2 nd Accused jointly and criminally formed a common intention with each other converted the sum of one million four hundred thousand naira (N1.4m) 1

2 out of the two million three hundred thousand naira (N2.3m) meant for the completion of the said project. They were therefore brought on an FIR of Joint Act under section 79 of the Penal Code, Criminal Breach of Trust under section 312 and cheating under section 322 of the same Penal Code. To prove its case prosecution called three witnesses. PW2 never completed his testimony before he went on a special assignment outside the country. He was also never cross-examined. The evidence of PW1 from where the crux of the matter could be derived is lengthy and windy. The magistrate himself could not quite summaries it, and is to the following effect:- Sometime in May 2005, precisely on the 12 th May 2005, an agency of the United Nations Nigeria Special Programme for food security awarded a contract to Dominion Integrated Technical Service West African Ltd, to construct a micro earth dam at Kilankwa 1, in Kwali, Abuja FCT. The company belongs to PW1. He mobilized the services of Mr. Godwin Ofor as construction engineer together with Store Pitchen, and engaged the services of Clement Iguku as site messenger and 2 nd Accused person, Stanley Chidozie as site Engineer. Work commenced on 16/05/05. On 27/05/05 the FAO NSPFS field engineers, who were supervisors to the contract, came and inspected the work. They drastically changed the scope of the work and the bill of quantity went up. Consequent upon the increase in the bill of quantity, PW1 went to WEMA Securities Ltd on the 3 rd June 2005 to request for a loan facility to enable him complete the work. His company was awarded three different loan facilities by WEMA Securities as follows:- 1. Two Million, Seven Hundred Thousand Naira (N2,700,000.00) 2. Eight Hundred Thousand Naira (N800,000.00) 3. One Million, Five Hundred Thousand Naira (N1.500,000.00) The first loan of N2, 700, was utilized and when the work was not completed as a result of damage caused to some parts of the work by rainstorm, PW1 requested for and obtained another loan of N800,000.00, but this time, WEMA Securities appointed Mr. Bello Abdulkarim (1 st Accused) as disbursement officer for the purpose of disbursing the said 2

3 N800, After disbursing this funds, Mr. Bello told PW1 that the money (800,000.00) was finished. It is PW1 s testimony that he raised an alarm at this point, saying that the money couldn t have been exhausted. PW1 said further that he approached the Bank for another loan which was granted. The work still could not be completed. Mr. Bello Abdulkarim did the disbursement. When he got to know that the work was still not completed, he wrote a query against the 1 st and 2 nd Accused persons for misappropriating the said funds. Thereafter the 2 nd Accused petitioned him to Zone 7 Police Headquarters for defamation of character, whereupon he was arrested and questioned by the police, after which the police found the 1 st and 2 nd Accused persons to be the actual Accused persons, and PW1 turned out to be the complainant and the police charged the matter to court. PW1 gave further evidence that, because 1 st Accused insisted that as the site was difficult to access and in order to relieve him of the need to be going up and down, PW1 should fill and sign a number of disbursement forms so that whenever they needed money it would be easy for them to raise a cheque. The manager of WEMA Securities agreed to that procedure. PW1 was then given about 18 disbursement forms, which he filled and signed. The dates and amounts requested were however left blank so that whenever they need money, he will just call them and they will pick one of the forms and fill-in the amount and date. A cheque will then be raised which will be cashed after a confirmation from the 1 st Accused that the request is valid. Some disbursement forms were tendered as exhibits D1 D13 but PW1 said they were not the forms he filled and signed. Moreover, according to PW1, one of the forms with the date of 5 th August cannot be one of the ones he filled because, as at that date WEMA Securities had declared every facility finished. When there was a heavy rainfall which caused damage on the site, PW1 together with the 1 st Accused assessed the damage at N1.2m. curiously, 14 Accused advice PW to get another loan. PW1, on the advice of the 1 st 3

4 Accused, applied for N1.m (One Million Naira) and only N800, was approved by WEMA Securities. A new procedure of going about the business was adopted whereby money withdrawn or disbursed would still be in the custody of the 1 st Accused. He would accompany PW1 to wherever he, PW1, went to do business. After the transaction, the 1 st Accused would pay the person and a receipt would be issued which would be kept by the same said1 st Accused. It is in evidence that on the 11 th of an unnamed month and year, on the request of PW1, N100, (one hundred thousand naira) was released to the 1 st Accused. This was to bring to a total sum of N760, in possession of the 1 st Accused. However the purpose for which this money was released to the 1 st Accused was not achieved as they could not get the chain excavator they obtained the money for, because the said excavator had been rented out to someone else. On 14 th July PW1 went back to 1 st Accused and requested that he should follow him to Mabushi for the excavator, whereupon, 1 st Accused said all the money is finished. PW1 raised another alarm but that 1 st Accused advised him to apply for yet additional N1.5 Million and to indicate that all previous money had been utilized which PW1 did, though he vehemently objected to the assertion of 1 st Accused that the money had been exhausted. 1 st Accused told PW1 to come and see the manager. When they got to the manager s office, both manager and 1 st Accused became violent against PW1 and threw him out of the manager s office using the office security men. PW1 says, he told the manager that he (PW1) and his company will not be liable for a loan that was granted by them and disbursed by them until a proper, correct and cohesive account of the disbursement is given. At a point, 1 st Accused went to the head of FAO, one Mr. Angels to demand for more payment of money. At this point Mr. Angel called PW1 for discussion where he (PW1) explained all that had been happening, reporting that the 1 st Accused s explanation is that it was not a matter of 4

5 missing money, but that they only want to reconcile their account. These accounts were never reconciled. At the hearing of this case PW1 recounted all that happened and prosecution, through him, tendered several exhibits. Prosecution called as PW2, one of the investigation police officers who testified but was not cross-examined while PW3, another investigating police officer testified and was cross-examined. In his testimony PW3 said he could not remember when he visited the dam but later said it was around September He said he booked in the station diary before going. He also said he went in company of CPI Ogar. My emphasis here is on the words he could not remember, which I will refer to, late. PW3 said he requested for the original disbursement forms used for withdrawals but that he was denied them, but only photocopies were given to him. On further cross-examination PW3 said some of the signatures on the receipts used in purchasing the equipments and renting were forged. Asked why he did not charge the Accused persons for the offence of forgery, PW3 said he was under instruction (from his former o/c legal). What we have tried to do is to highlight some of the evidence of the prosecution, based on which the learned trial court gave its ruling that there is a prima facie case of criminal misappropriation against the 2 nd Accused/Appellant. In his ruling, after reviewing the evidence before him, the learn trial Magistrate summarized as follows:- (1) He finds that there is a prima facie evidence of entrustment of money to the 1 st Accused. (2) That there was a procedure within which the 1 st Accused was expected to work, for the disbursement of the funds (see pg 185 of records). (3) That there is a prima facie evidence of an implied contract between the 1 st Accused and WEMA Securities and by extension the PW1, stating how the 1 st Accused should deal with any money handed to him, also the cashing of the cheque in respect of the facilities. 5

6 (4) That PW1 said he did not authorize such payment to 2 nd Accused and the money was not used for the project. (5) Exhibit J is a letter from PW1 contesting and challenging some expenses which the 1 st Accused alleged were incurred on the project. He said in conclusion that in view of all of the above there is a prima facie evidence of misappropriation against the 1 st Accused and that this amounts to a prima facie case of Criminal Breach of Trust against the said 1 st Accused. On the offence of cheating the court said there is no evidence of deceit against the 1 st and 2 nd Accused persons which is the primary element of cheating. Both 1 st and 2 nd Accused persons were, therefore, discharged on the allegation of cheating. The 2 nd Accused was discharged also on the offence of Criminal Breach of Trust. The court did not make any findings on the offence of Joint Act having declared it non existent. Based on the finding that the 2 nd Accused was collecting money from the 1 st Accused without authority in circumstance of this case, coupled with the evidence of PW1 that this unauthorized money was collected by the 2 nd Accused using Rockview Hotel memo pad; (moreover based on the fact that the expenses portrayed by some documents were also unauthorized expenses and were never used for the project) the court found that there is a prima facie case of criminal misappropriation against the 2 nd Accused. PW1 emphasized that he was always on site and never authorized the 2 nd Accused to hire any equipment or purchase materials except on one occasion. Learned trial Magistrate concluded that though not charged with criminal misappropriation on the FIR, he is of the view that by virtue of section 160 (1) of the Criminal Procedure Code, the court can charge the 2 nd Accused with the offence which is disclosed by the evidence before the court. He went ahead to charge the 2 nd Accused with the offence of criminal misapproiation, based on the evidence of PW1 stated above and corroborated by the evidence of PW3. Having found thus the court went on to conclude that subject to the finding of the court on Criminal Breach of Trust and cheating against the Accused persons the No case submission fails. 6

7 This is the conclusion appealed against. There are six grounds of appeal in this case. Ground one is that: The learned trial Magistrate erred in law when he failed to discharge the Appellants of the offences charged. Ground two: The learned trial Magistrate erred in law when he held that let me observe here that although the FIR stated Joint Act as one of the offence, with which the Accused are accused, there is no any offence known as Joint Act in the Penal Code. Ground three: The learned trial Magistrate erred in law when he held that there is however, in my view prima facie case of criminal misappropriation against the 2 nd Accused having earlier held in the ruling that a prima facie case has not been established against the Accused in respect of the offence of Criminal Breach of Trust. Ground four: The learned trial Magistrate erred in law when he held that in my view the foregoing is a prima facie evidence of criminal misappropriation against the 2 nd Accused though not charged with criminal misappropriation in the FIR. Ground five: The learned trial Magistrate erred in law when he held that in my view the foregoing is a prima facie evidence of criminal conspiracy between the 1 st and the 2 nd Accused. I therefore hold that a prima facie case has been established against both Accused in respect of the offence of criminal conspiracy. Ground six: The learned trial Magistrate erred in law when he framed the charges of criminal conspiracy against the Accused persons and the charge of 7

8 criminal misappropriation against the Appellant and taker (sic) their pleas and referred the case to other grades of Magistrate Court other than himself. Appellant counsel raised three issues for determination: 1. Whether the prosecution has made out a prima facie case against the Appellant to warrant his being called upon to enter his defence. 2. Whether Joint act is an offence under the Penal Code. 3. Whether there is a prima facie evidence of criminal conspiracy between the 1 st and 2 nd Accused having discharged the 2 nd Accused of the offence of criminal breach of trust and cheating. The 2 nd Accused was brought to court on an FIR of Criminal Breach of Trust, cheating and Joint Act. The offence of Joint Act was declared none existent. The 2 nd Accused was discharged of the offences of Criminal Breach of Trust and cheating. Up to this point there is no more offence against him. The No case submission therefore stood right at that stage, and can be said to have succeeded. However the law allows a Magistrate to frame a charge if after taking evidence, the evidence discloses an offence. It is based on his powers under Section 160 (1) of the Criminal Procedure Code to this regard that the Trial Magistrate went ahead to frame the charges of criminal conspiracy and criminal misappropriation against the 2 nd Accused appellant. Obviously the 2 nd Accused had been discharged on the original allegations, but there is a new charge. Whether the charge is good or bad in law is another thing altogether. A charge can however be amended. Section 322 provides for the offence of Criminal Breach of Trust. It is true that criminal misappropriation is an element in Criminal Breach of Trust. But Criminal misappropriation is also another offence of its own under Section 308 and 309 of the Penal Code. Their respective ingredients are not the same. It is therefore proper to charge the Accused with the offense of criminal misappropriation if the evidence discloses that offence even as held by the trial court, and contrary to the argument of counsel that one cannot be charged for criminal misappropriation discharged of criminal breach of trust. 8

9 We will start with ground (2), which deals with the offence of Joint Act declared non-existent by the Trial Magistrate. Section 79 of the Penal Code reads: When a Criminal Act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. This section comes under the heading Joint Act in the Penal Code and specifies that a charge under this section should run thus:- That you.on or about the.day of at had formed a common intention with B, C and D to commit an offence namely..in furtherance of which you did the following criminal act an offence punishable under section of the Penal Code and I therefore hereby charge you of the said offence under section.read with section 79 of the Penal Code. The learned trial Magistrate had held that there is no offence known as Joint Act in the Penal Code. This is an error of law as rightly submitted by the learned counsel for the Accused appellant. Joint Act is an offence in the Penal Code. The offence of Joint Act is not confined to section 79. It stretches through sections 80, 81 and 82 of the same Penal Code. A charge under Joint Act must be read along with the Section under which the dual offence is committed and can conveniently be substituted if the ingredients for conspiracy cannot be proved. For the Magistrate to say that there is no offence known as Joint Act under the Penal Code, is an error of law as Joint Act is an offence under the Penal Code, and we so hold. On issue three, counsel argued that since the appellant had been discharged of Criminal Breach of Trust and cheating it would be wrong to charge him on criminal conspiracy. It is the argument of counsel that since the court in its wisdom held that no prime facie case has been made against the Appellant on the alleged offences of Criminal Breach of Trust and cheating, the question of conspiracy cannot arise. Learned Trial Magistrate said on page 186 again as follows:- 9

10 In the case of the 2 nd Accused, I agree with the submission of the counsel to the 2 nd Accused that there is no evidence of entrustment of any kind of any money to the 2 nd Accused. I therefore hold that a prima facie case has not been established against him in respect of the offence of criminal breach of trust. He is accordingly discharged for the offence. On page 4 of the Appellant s brief of argument to this appeal, Appellant s counsel stated thus: Criminal Breach of Trust. Ingredients-There must be entrustment of property to the Appellant by the complainant, the Accused/Appellant dishonestly misappropriates or converts same o his use or disposes of that property contrary to prescribed rules or laws. The prosecution failed to establish any of the ingredients of the offence against the Appellant. There was no evidence of entrustment of property to the Appellant. In our view, this submission by counsel is accepted by the learned trial magistrate, hence his holding above stated. Apart from the ingredient of entrustment, there should also exist the ingredient of misappropriation. That is to say, the property entrusted to the Accused ought to be proved to have been misappropriated for the offence of criminal breach of trust to have been established or proved. To our minds these elements must coexist. In the present case there was no evidence of entrustment of money to the 2 nd Accused, therefore even if there was misappropriation the offence of criminal breach of trust would not have been proved. The section for Criminal Breach of Trust is Section 311 of the Penal Code and its punishment is Section 312. To prove the offence prosecution must prove (a) That the Accused was entrusted with property or with dominion over it. 10

11 (b) That he: (i) misappropriated it or (ii) Converted it to his own use (iii) Used it: or (iv) disposed of it (c) That he did so in violation of:- (i) Any direction of law prescribing the mode in which such trust was to be discharged; or (ii) Any legal contract expressed or implied which he had made concerning the trust; (iii) That he intentionally allowed some other persons to do as above. (d) That he acted as in (b) dishonestly. The learned trail magistrate found on page 185 of the records toward the last 7 lines thus: Also allegation of some moneys been received by the 2 nd Accused from the 1 st Accused was made and the PW1 said he did not authorize such payment to 2 nd Accused and the moneys were not used on the projects. If the 2 nd Accused collected money from the 1 st Accused without authorization, what did he collect it for, and did he use it for that purpose? Was the purpose in pursuance to completing the kilankwa 1 dam project? It would appear that whatever money 2 nd Accused collected from 1 st Accused was not for the purpose for which the loan facility was obtain. Could this not be said to amount to misapplication?, for, at the time the little amount was given to him by 1 st Accused, he, 2 nd Accused had dominion over that bit which was not faithfully used. Nevertheless the trial court has found and held that the 2 nd Accused has no case to answer under criminal breach of trust, whereof he was discharged of that offence. Also in respect of the offence of cheating the trial court said 11

12 In respect of the offence of cheating, I agree with the submission of both counsels to the 1 st Accused and counsel to the 2 nd Accused that a prima facie case has not been established against the both Accused for the offence of cheating. In other words, there is no evidence of deceit from either Accused, to PW1. They are accordingly both discharged in respect of the offence of cheating. There is however in my view, prima facie case of criminal misappropriation against the 2 nd Accused.. The PW1 said the Accused collected some moneys from the 1 st Accused without his authorization using Rock View Hotel memo pad and also on exhibit M where he (PW1) acknowledged the receipt of N30, from the 1 st Accused. He also said the expenses portrayed by those documents were not authorized by him and were not in respect of the project in question. He emphasized that he was always on site and had never authorized he 2 nd Accused to hire any equipment or purchase materials except on one occasion. In my view the forgoing is a prima facie evidence of criminal misappropriation against the 2 nd Accused. The criminal misappropriation referred to above is not the same as the one referred to in Section 311 and 312. This is criminal misappropriation under Section 308 where the law says Whoever dishonestly misappropriates or converts to his own use any movable property, commits criminal misappropriation. This is the kind of misappropriation the lower court was referring to, whereupon the court went on to find thus:.pw1 said the 1 st Accused has not been authorized by him to make any payment to 2 nd Accused nor is the 2 nd Accused authorized to demand any payment from 1 st Accused.. In my view the foregoing is a prima facie evidence of criminal conspiracy between the 1 st and 2 nd Accused. I therefore hold that a primacy case has been established against both Accused in respect of the offence of criminal conspiracy. In section 96 of the Penal Code, criminal conspiracy is defined thus: When two or more persons agree to do or cause to be done:- (a) An illegal act or 12

13 (b) An act which is not illegal, by illegal means such an agreement is called criminal conspiracy. The learned Magistrate said on page 186 of the records that though not charged with the criminal misappropriation in the FIR I am of the view that by virtue of the provision of section 160 (1) of the Criminal Procedure Code this court can charge the 2 nd Accused with the offence, which is disclosed by the evidence before the court. This was said after finding that in his view the foregoing is a prima facie evidence of criminal misappropriation against the 2 nd Accused, hence the charge. In our opinion, from the above holding, the charge of conspiracy against the 1 st and 2 nd Accused persons is in respect of the offence of dishonest misappropriation. The charge reads: I Dogo Abdu, senior Magistrate II sitting at Wuse Zone II, Abuja do hereby charge you Bello Abdulkreem and Stanley Chidozie as follows:- First- that you, between the 11 th day of July, to the 5 th day of August, 2005 agreed to do illegal act, to wit dishonestly misappropriate part of the loan facilities granted to Dominion Integrated Technical Service W.A Ltd by WEMASEC in respect of a project at Kilankwa 1, Kwali Abuja and thereby committed an offence punishable under Section 97 of the Penal Code and triable by Magistrate of the first grade. Secondly- that you Bello Abdulkareem between the 11 th day of July to 5 th day of August 2005 at Abuja having been entrusted the disbursement and monitoring of the application of the loan facilities of N8000, and N1.5M respectively granted to Dominion Integrated Technical Service W.A Limited by WEMASEC in respect of a project at Kilankwa 1Kwali, Abuja, committed criminal breach of trust by dishonestly misappropriating part of the said loan facilities and thereby committed an offence punishable under section 312 of the Penal Code and triable by the Magistrate of the third grade. Thirdly- That you Stanley Chidozie between the 11 th day of July, to 5 th day of August, at Abuja dishonestly misappropriated part of the loan facilities grant to Dominion Integrated Technical Service W.A. Limited by WEMASEC in respect of a project at Kilankwa 1, Kwali Abuja and 13

14 thereby committed an offence punishable under section 309 of the Penal Code and triable by the Magistrate of the third grade. I hereby direct that you be tried by such court on the said charges. The first Accused is charged with the offence of Criminal Breach of Trust by dishonestly misappropriating part of the loan facilities. The 2 nd Accused also is charged with the offence of dishonestly misappropriating part of the same said loan facility punishable under section 312 and 309 respectively. To our minds again, the trial Magistrate rightly used his powers under Section 160 (1) of the Criminal Procedure Code which allows him to charge the Accused where the evidence reveals an offence under the Penal Code. He accordingly charged the Accused persons under the relevant sections of the Penal Code. A charge for the offence of Joint Act, or criminal conspiracy or abetment, in the circumstance of this case can conveniently substitute one for the other, depending on the ingredients established before the court. In view of the charge under section 312 and 309, both of which have dishonest misappropriation as ingredients of proof the court charged both 1 st and 2 nd Accused for conspiring to dishonestly misappropriate the various sums of money in their possession. We therefore do not agree that the Accused appellant could not have been charged for the offence of criminal conspiracy as submitted. He was therefore rightly charged for conspiracy. We now go to consider issue 1 which is as follows:- Whether the prosecution has made out a prima facie case against the Appellant to warrant his being called to enter his defence. The Appellant s opening paragraph in his written address on this issue is that The Appellant and another, were arraigned for the offence of Joint Act, Criminal Breach of Trust and cheating contrary to Sections 79, 312 and 322 of the Penal Code Act respectively. Appellant s counsel went ahead to spell out the ingredients of the offences of Criminal Breach of Trust and cheating and submitted that the ingredients of those offences were not proved. 14

15 From the Appellant s written brief the 2 nd Accused was discharged of the offence of Criminal Breach of Trust. Also in respect of the offence of cheating the court said a prima facie case had not been established against the 2 nd Appellant on that offence and he was also accordingly discharged. The court went ahead to say:- there is however a prima facie case of criminal misappropriation against the 2 nd Accused. Criminal misappropriation is an offence under Section 308 of the Penal Code punishable under Section 309 of the same Penal Code. Section 308 has been reproduced above, and section 309 states Whoever commits criminal misappropriation shall be punished with imprisonment for a term which may extend o two years or with fine or with both. The ingredients for criminal misappropriation are:- (a) That the properly in question is movable property. (b) That the Accused misappropriated it or conversted it to his own use. (c) That he did his honestly. It is sufficient, in a charge of criminal misappropriation, for the prosecution to establish that some of the property mentioned in the charge has been misappropriated by the Accused even though it may be uncertain what is the exact amount so misappropriated. There is not evidence that the 2 nd Accused had reasonable belief that the money he was receiving from 1 st Accused was meant, either for him or, for use in some other purpose other than the completion of Kilankwa 1Dam project at Kwali, Abuja. The 2 nd Accused did not have authority to receive money from the 1 st Accused neither did the 1 st Accused have authority to release to the 2 nd Accused any money. We are of the view that though there is no prima facie case against the 2 nd Accused for the offences with which an FIR was preferred against him but the learned trial court found that there is a prima facie case against him under some other section of the law and his findings, we cannot disturb. 15

16 In Isibor Vs State (2002) FWLR 843 the Supreme Court held: When a trial court has performed its primary duty of assessing and evaluating the evidence before it and has made finding of fact which the evidence justifies, an appeal court is not entitled to make contrary findings, particularly when such findings depend largely on the credibility accorded to the witnesses by the trial court. It is normally within the province of the trial court, which has the advantage of hearing and watching witnesses testify to assess their credibility. See also Sugh Vs State (1988) 2 NWLR (pt 77) 475. When you say there is a prima facie case against an Accused person, it does not mean that there is proof against that Accused that he has committed the offence. It simply means that there are reasonable grounds for calling on an Accused to explain why things are the way they are alleged to be. He may satisfactorily explain to the court that the prosecution is inordinately raising false alarm and urge the court to discountenance the prosecution case and discharge him. In the case of Ajibode Vs The State (1998) 1 ACLR 355, Supreme Court referring to an Indian case of Sher Singh Vs Jitendranathsen (1931) LR 59 CAL 275 had this to say:- What is meant by prima facie (case)? It only means that there is a ground for proceeding.but a prima facie case is not the same thing as proof which comes later when the court has to find whether the Accused is guilty or not guilty (Per Grose J). And the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the Accused. We cannot therefore disturb the finding of the trial court when he said the 2 nd Accused has a case of criminal conspiracy and criminal misappropriation to answer. There is a difference, (though both have the element of misappropriation) between Criminal Breach of Trust and criminal misappropriation simplicita. His findings were based on the evidence before him, who saw the demeanour and heard the witnesses testify. This evidence, as disclosed in the records is not contradicted and is believed. 16

17 It is trite that where the prosecution adduces evidence in support of its case which is not contradicted and is believed, the court has no option but act on it. See the case of Having said thus we wish to note that the investigation into this case leaves much to be desired. Sections 148 and 149 of the Criminal Procedure Code allow for further investigation into cases where investigation has been found to be as porous as in this case. The absence of PW2, being one of the IPOs, may have explained the apparent porosity in the investigation, and poor presentation of this case. It is not surprising that PW3 could not remember so many things in answer to question put to him. Investigation into criminal cases is not normally done by one person except in very minor offences. Investigators are usually in a team. It is injustice on the part of the Accused not to cross-examine PW2 and on the prosecution for incomplete evidence. It is often said that two useful heads are better than one. Whatever one investigator cannot properly remember, the other(s) might. We therefore order that the case be further investigated in the following areas:- (1) WEMASEC and its manager. They are to show the disbursement formular and who authorized the release of funds per time and who signed and collected same. (2) The person in whose custody the Bank disbursement cheques were kept and his in the transaction. (3) The person in whose custody the pre-filled disbursement forms were kept and how he released them for cashing of money. (4) The records of disbursement, and how the disbursed funds were utilized. (5) Who was raising the cheques, whenever the need for money arose? How many cheques did he raise? (6) How many cheques did 1 st Accused confirm? (7) The reconciled account showing the actual amount misappropriated, even as PW1 had requested for a proper, correct and cohesive account of disbursement but was denied. 17

18 (8) Any negligent conducted in the transactions on the part of those involved. (9) The issue of the forged receipts mentioned by PW1 contained on page of the records. (10) Any abetment by any of the Bank officials (ie WEMASEC) Whoever is found suspect should be tried as well as the 1 st Accused persons. and 2 nd As we said earlier, the No case submission of the 2 nd Appellant on the offences of Criminal Breach of Trust and cheating succeeded. 2 nd Accused is discharged of those offences but he is to stand trial based on the new charges. He cannot therefore be discharged and acquitted altogether as prayed by learned counsel. Counsel did not proffer arguments on the other grounds of appeal. The three issues formulated were tied to grounds and 5. We consider ground 6 abandoned. It is however held that a Court of Appeal is of the view that a consideration of one issue is enough to dispose of the appeal it is not under any obligation to consider all the other issues posed. See 7 up Bottling Co. Ltd Vs Abiola & Sons Co. Ltd (2006) 1 NCPR 1. See also Anyaduba Vs Nigerian Renowned Trading Co. Ltd (1992) 5 NWLR (pt 243) 535. In view of all we have said, we hold that this appeal only succeds in part i.e the no case submission made by counsel to the 2 nd Accused/Appellant on the charge of criminal breach of trust and cheating. But the charge of criminal conspiracy under section 97 of the Penal Code is right in law and the Accused cannot be discharged and acquitted as prayed by counsel to the 2 nd Accused/Appellant. Appeal succeeds in part. Hon. Justice Kekemeke Hon. Justice V.V.M. Venda (Presiding Judge) (Judge) 19/03/13 (Read the leading Judgment 19/03/13 18