Court can’t discountenance preponderance of evidence – Goodluck

The defence counsel has raised a no case submission in respect of Charge No. CR/137/2013 against the Accused person.In opposition to the no case submission, the prosecution filed a written address dated the 27th November, 2013, wherein the defence counsel’s submission was vehemently challenged.The charge upon which the accused was arraigned is as follows: That […]

The defence counsel has raised a no case submission in respect of Charge No. CR/137/2013 against the Accused person.
In opposition to the no case submission, the prosecution filed a written address dated the 27th November, 2013, wherein the defence counsel’s submission was vehemently challenged.
The charge upon which the accused was arraigned is as follows:
That you Dr. Stephen Abah on the 13th November, 2008 at Abuja within Abuja Judicial Division was entrusted with the sum of N200,018 (two hundred thousand and eighteen naira) by one Udeh Orokpo Godwin to register with Olukola Liquefied Natural Gas and Brass (LNG) for training and consultancy services, and you dishonestly converted the said sum to your personal use and thereby committed an offence contrary to Section 311 of the Penal Code and punishable under Section 312 of the same code.
Count 2
That you, Dr. Stephen Abah between August 2008 and March 2009, at Abuja within Abuja Judicial Division was entrusted with a total sum of $48,500 by one Udeh Orokpo Godwin to establish eatery business with 50 percent equal partnership, and you dishonestly misappropriated the said sum to your own personal use and thereby committed an offence contrary to Section 311 of the Penal Code and punishable under Section 312 of the same code.
The defence counsel, A. C. Ozioko Esq. recounted that on the 31st day of October, 2013, the prosecution closed its case after calling 3 witnesses. Aside from their testimony, several exhibits were tendered.
The defence counsel raised a lone issue for determination in furtherance of his application, that is; “Whether by the totality of the evidence adduced so far in this case, if not rebutted would ground a conviction”
A.C. Ozioko Esq. has submitted that where there is no evidence elicited by the prosecution at the close of the prosecution’s case for trial, there would be no need for calling on the accused to give any evidence, accordingly the accused ought to be discharged. He then commended this court to the decision in ABRU v. STATE (2011) 17 N.W.L.R. (PART 1275). There, the following principles were enunciated.
1. That no legally admissible evidence has been established by the prosecution which linked the accused person in any material way with the commission of the alleged offence and thereby necessitating the accused person being called upon for his defence. In this regard, that an essential ingredient or element of the offence charged remain unestablished against the accused person at the point in time.
2. That whatever evidence if any, which might have linked the accused person with the offence in question has been so discredited under cross examination that no reasonable tribunal or court can be invited to act on it, in order to establish criminal guilt in the accused person and safely convict him thereon.
In applying the foregoing considerations to the facts of this case, particularly the evidence ventilated so far, it is needful to reproduce Section 311 and Section 312 of the Penal Code which prescribes the punishment for the violation of Section 311 of the Penal Code. The offence in this case is for criminal breach of trust “whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract expressed or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust.”
Learned counsel has rightly identified the ingredients constituting the offence in Section 311 of the Penal Code as three folds, they are:
1.That the accused was entrusted with property.
2. That acting dishonestly he misappropriated it or converted it to his own use, or disposed it.
3. That he did so in violation of a legal contract or direction of law prescribing how the trust would be discharged or intentionally allowed another person to do so.
This Court will take the first consideration to start with that is, that the accused was entrusted with money. P.W.1, the complainant led evidence to the effect that he paid the total sum of $48,500 and an additional sum of N200,018 as his contribution towards an eatery/recreational business in conjunction with the accused. P.W.1 said that the accused sent him the business plan in the name of Exar Nigeria Limited in March 2009 which did not include his name Exhibit P.W.3E1-39 hence he said, that is P.W.1, will withdraw from the business. Then in April 2009 upon filing CAC Forms, a company De Kechop was registered, a certified true copy of the search on De Kechop Foods was admitted in evidence. An examination of Exhibit P.W.1F1-7 reflects that De Kechop Foods is owned by the complainant, Udeh Okpotpo Godwin, Abah Stephen Abekpa and Evangelical Olohi Abah. P.W.1 also said that he objected to the ownership structure of their business as the wife of the accused has 20% shares. He said that in August 2009 he agreed with the accused to contribute further funds into the business provided the company finance is audited.
P.W.1 said that he then transferred $6500 USD which was for the completion of the furnishing and fitting based on their joint estimate. He went on to disclose that the accused recruited ”manager after manager” and still refused to execute a Memorandum of Understanding notwithstanding his demands P.W.1 maintained that his demands for the statement of the amount and auditing of the company’s account was met with a stone wall. P.W.1 said he was eventually told in January 2011 that the business had collapsed.
The income and expenditure records of the company prepared by P.W.1, was admitted as Exhibit P.W.1G1-6. The document reflects the activities of De Kechop from April 2006 to May 2009.
P.W.2, Godwin Eche Adoke the complainant’s counsel also testified.
He said he inspected the business premises in the company of the EFCC officials. He said the premises was an “abandoned property” He recounted that there were chairs, cooling utensil, and an abandoned refrigerator at the site.
P.W.3, an operative of the EFCC assigned to investigate the complainant’s transaction testified. He tendered the inventory of what was found at the business premises of the De Kechop. P.W.3 further disclosed that a physical verification and evaluation of De Kechop was carried out in the presence of the accused person, Godwin Adoke, P.W.2 as well as a quantity surveyor, Anfowoshe. The report dated the 12th November 2012 was admitted in evidence.
P.W.3 also said that what was found on the premises was not commensurate with the sum of $48,500  and N218,000. He however said that the accused did not remit money into Kechop Foods account Exhibit P.W.3D1-7.
This court has taken an exhaustive examination of the valuation report on the construction works executed by Stephen Abah, the accused.

To be continued.