‘Court can’t discountenance preponderance of evidence’

The next consideration is to determine whether the accused acted dishonestly or converted the funds to his own use or disposed of it. A thorough examination of the evidence adduced so far is that the accused applied the funds given to him by P.W.1 toward the establishment of the business,  that is De Kechop Foods […]

The next consideration is to determine whether the accused acted dishonestly or converted the funds to his own use or disposed of it. A thorough examination of the evidence adduced so far is that the accused applied the funds given to him by P.W.1 toward the establishment of the business,  that is De Kechop Foods Nigeria
 Limited. The grouse amongst others of P.W.1 was the inclusion of the accused’s wife as a co investor in the business by allotting her 20% of the shares. It is not the case of P.W.1 that the accused converted the funds of P.W.1 and ascribed it as the accused’s wife contribution.
 P.W.1 by his own showing continued to do business with the accused person and subsequently paid the sum of $6,500 USD to the accused for furnishing and fitting. Besides, P.W.1 picked holes with the accused for the non-presentation of the company’s audited account.
 These acts as this Court sees it will not suffice as ingredients for the establishment of are appropriation or conversion of the funds entrusted to the accused. The Court cannot discountenance the preponderance of evidence regarding the use to which the funds were applied Exhibit P.W.3.G1 – 13 titled Valuation Report on construction works executed by Dr. Stephen Abah (Re: De Kechop Foods And Events Plaza Projects at 53, Okporo Road, Off Artillery Junction Obio/Akpo L.G.A. Port Harcourt, Rivers State) ascribes a value of N10,175,370.00.
Exhibit P.W.1G1-6 is Dekechop’s income and Expenditure Record from April 06, 2008 to May 31, 2009 it is signed by Udeh Godwin, P.W.1. it shows the operational activities of Kechop within the period under review by P.W.1. Exhibit P.W.3F1-6 is an inventory of the items belonging to De Kechop Foods. Though the P.W.2 and P.W.3 contend that what was found on the site is not commensurate with what was paid to the accused, the professional valuation vide Exhibit P.W.3G1-13 is to the contrary.
 More importantly there is no evidence before this Court of misappropriation of the funds remitted to the Accused Person by P.W.1.
 There is no evidence before this Court of conversion of the funds remitted to the accused person by the complainant or conversion of the transferred funds to the use and benefit of the Accused person. What can be garnered from the evidence before this Court is a story of a business gone bad, using the words of P.W.1, the business “collapsed”
It is not as if the business contemplated by P.W.1 and the Accused Person never took place arising from the misappropriation of the funds sent by P.W.1 nor is it in evidence that the Accused put the funds to use for purposes other than that which they had mutually contemplated by them. This Court holds that the second element of misappropriation has not been established by the prosecution.
Bandawa Esq. has rightly submitted that a no case submission is upheld where the following circumstances can be established;
a) When there has been no evidence to prove an essential element in the alleged offence either directly, circumstantially or inferentially;
b) When the evidence adduced by the Prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable Court could safely convict on it.
Prosecution Counsel has commended this Court to the decision in UGWU v. THE STATE (2013) ALL F.W.L.R. (PART 669) page 1177.
These authorities as this Court sees it are not helpful to the case of the prosecution in that the prosecution has failed to establish the essential element in the alleged offence, directly, circumstantially or inferentially. The deduction as this Court sees it from the evidence before this Court is that the business took off, however, it was not a success story, which failure is substantially connected with maladministration. Putting it another way, the failure has not been shown to be associated with misappropriation, dishonestly, conversion e.t.c. flowing from the evidence ventilated before this Court.
Bandawa Esq. has raised the poser on whether it is pertinent at this point to hold that a prima facie case has been established by the prosecution to warrant the accused to proceed to his defence.
The prosecution has affirmatively argued this point by contending that this Court should proceed to hear the defence proceedings. He has submitted that a prima facie evidence has been established against the accused.
 He contends that the evidence elicited so far is sufficient to prove the case against the accused. He relied on the decision in AGBO v. THE STATE (2013) ALL F.W.L.R. (PART 689), 1094, AJIDAGBA v. I.G.P. (1958) S.C.N.L.R. 60 and ors.
However, this Court is unable to endorse the submissions of the
Prosecuting Counsel, in the light of the tenuous evidence or lack of evidence in support of the essential ingredient of misappropriation, conversion and or dishonesty against the accused. In sum, this court holds that a prima facie case against the charges proffered against the accused has not been made out by the prosecution.
 This Court will draw strength from the decision in ABRU v. THE STATE supra at page 23. There, the Court of Appeal held thus:
“As for the purport of prima facie case, it connotes the existence of evidence which is sufficient enough to support the allegations made and would be regarded as having been made in the absence of further evidence in rebuttal of the same. See UBANATU v. C.O.P. (2000) 1 S.C.N.J. 50 (2000) 2 N.W.L.R. (PART 643) page 115 when a prima facie case has not been established against an accused person, it does not mean that the availing presumption of innocence is still invocable in favour of such an accused person. In such an instance, the submission must be upheld and the accused person will be entitled to be discharged” I am of the view and will so hold that the case before the accused person lacks the essential ingredients required for the prosecution of Sections 311 of the Penal Code. Consequently, this Court upholds the no case submission raised by the Defence Counsel.
The accused is accordingly discharged. This case is struck out.

O. O. Goodluck Hon Judge APPEARANCE S. A. Bandawa Esq.: For the Prosecution.
The Defence Counsel is absent.