(Vol 9 No. 28) BGKT V. LAGOS INEC

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDENAT IKEJA
BEFORE THE HONOURABLE JUSTICE A.A. PHILLIPS
THIS 9TH DAY OF APRIL 2009

SUIT No. LD/1031/2004

BETWEEN
BGKT NIGERIA LIMITED - PLAINTIFF
AND
LAGOS STATE INDEPENDENT - DEFENDANT
ELECTORAL COMMISIION

Parties absent
Mrs G. A. Okerinde for the Claimant
A. A. Adewale for the Defendant

JUDGEMENT

INTRODUCTION
This case was instituted by a Writ of Summons and a Statement of Claim both dated 10/5/04. The Defendant filed an Amended Statement of Defence and Counter claim dated 21/11/2005 and the Claimant in turn filed a Reply and Defence to counter claim dated 25/4/06 and this is the state of the pleadings in this matter.

THE CLAIMS
In paragraph 27 of the Claimant’s Statement of Claim dated 10/5/04 it claims against the Defendant as follows:-

1. The Claimant claim against the Defendant is for the total sum of N2,260,000.00(Two Million Two Hundred and Sixty Thousand Naira) only being the cost of producing an additional 750( Seven Hundred and Fifty) electoral boxes for the Defendant out of a total 3000 boxes and also the cost of providing adequate security for the said 750 boxes which the Defendant contracted the Claimant to produce before the Defendant terminated the contract retroactively after the Claimant had produced the electoral boxes and taken them to the Defendant's office for delivery

2. The Claimant also claims interest on the said at the rate 25% per annum from the 11th March, 2004 until the liquidation of the judgment debt and cost.

The Defendant counter claimed against the Claimant in paragraph 34 of the Amended Statement of Defence and Counter claim wherein it claims as follows:

1. The total sum of N1, 500,000.00(0ne Million Five Hundred Thousand Naira Only) being cost of awarding 500 aluminium boxes at the rate of N3/ 000.00 per unit which the Claimant had failed to supply in accordance with sample shown to it as specification which boxes are lying at the premises of the Defendant unused to date.

2. The Defendant/Counter-Claimant also claims interest on the said amount at the rate 25% per annum from the 30th of January 2004 until judgment is given.

THE TRIAL
The Claimant called only 1 witness in the person of MRS ADEYINKA ADEKUNBI BANASKO who testified as CWI. The Defendant called 2 witnesses to testify in respect of its defence as follows:-
1. SUNMOLA POPOOLA DW1.
2. TOKUN PEDRO DW2

The Evidence in Chief of CW1 is as is contained in her written Statement on Oath dated 25/2/05 which may be found at pages 30-34 of the court file.
When cross examined by the Defendant's counsel she admitted that she signed the letter marked Exhibit C3 and agreed that she accepted the terms of the contract between her and the Defendant. She staled that she was aware from the inception of the contract that the security of the product was a fundamental term of the contract and that the guarantee was not extraneous to the contract. She knew that the boxes were required for a specific purpose on a specific date and that the purpose of the boxes was to conduct the Local Government Elections in Lagos State on the 27/3/04.She said that she knew the contract was time bound but that she did not supply all the boxes by that date. She said that she has stated in her deposition that 1st and 2nd February 2004 were public holidays and that that was one of the reasons she could not comply with the contract but that she did not raise this issue in any of the letters to the Defendant. She said that the Defendant's cheque matured on the 30/1/04 but could not remember what day of the week that was- Neither could she remember what day of the week 1/2/ was but she remembered that that day was a public holiday. She could not remember whether she went to work on the 1/2/04 but she remembered that she could not go to the market on that day and that if it is essential she goes to the market on Sunday.

She went on to state that she was one of the four contractors employed to produce the' boxes and she recalled signing a document along with other contractors and identified the document as Exhibit C11. She agreed that this letter was written before the Defendant's cheque had cleared in her account, she recalled having a meeting with the Defendant as a result of the letter and as a result of the meeting the Defendant wrote to her that they were not prepared to vary the term of 'the contract. She stated further that upon the receipt of Exhibit C12 she wrote Exhibit C13 to the Defendant and that in that letter that there was no reference to the issue of the public holiday. She slated further that she was aware from inception that the job was suppose to be executed in batches and that it was not true that the first batch she delivered was 750 boxes.
She admitted that she did not complete the delivery as promised in Exhibit C13 and could not remember whether she delivered the 750 boxes by 4/3/04. She could not and she admitted that as at 20/2/04 that she had not delivered the boxes. She further stated that by 29/2/04 she had delivered 167 boxes instead of the number contracted to supply and denied the suggestion that they could not supply the full number" of the boxes because of their incompetence but admitted that the Defendant's officials complained about the pace of her work but not of the quality. She denied the allegation that she sent her workers to carry out repairs on the boxes within the Defendant's premises and agreed that the storekeeper had cause to make observation on her Waybill but that the comment had nothing to do with the specification of the ballot boxes, that he only made his own comments.

She said she did not confirm that the Defendant had paid in full for the first set of 750 boxes and she could not remember how many boxes she took as the last batch to the Defendant unless she sees the waybill. She stated that her claim before the court is that she took 750 boxes To the Defendant expecting them to collect them but they did not do so.- She said further that other boxes were supplied must have been after 6/3/04. She agreed that the store keeper told her the reason for not accepting the balance of the boxes but that she did not interact with the storekeeper, that it was her staff that did. She stated that she was not aware that she was supposed to supply only 750 ballot boxes on that day and denied the suggestions that she was not.

She looked at Exhibit C14 and agreed that they were expected to deliver 750 boxes not later than 4/3/04, she agreed that she signed Exhibit C11 and that the other signatories did not deliver in time that only ALUMACO did. She looks at Exhibit C9 and stated that at the time she got the contract that the Local Government Elections was fixed for 27/3/04 and that the election held as scheduled. She said that at the time she obtained Exhibit C9 the election had already held. She Looked at Exhibit C16 dated 9/3/04 and stated that by that date she had delivered a batch of 750 boxes and that Exhibit C9 had nothing to do with the batches for 750. She said she is the Managing Director of the Claimant Company and that she does not manufacture ballot boxes and this is the first time she is handling this contract for the Defendant. She said that they have not handled any ballot boxes for INEC either and denied the suggestions that the contract failed because she lacked the capacity and experience to execute the contract.

This witness was not re-examined and with the conclusion of her evidence learned counsel for the Claimant closed the case for the Claimant.
The Defence then opened its case and the evidence in chief of DW1 the Defendant's Principal Store Officer for the Defendant who is his employer may be found at pages 89-90 of the Court file.

When crossed examined by learned counsel for the Claimant he stated that a contractor cannot supply anything unless it is in a work order and that the Claimant did not supply any extra boxes outside those supplied under Exhibit (C16 -C21). He said that his duties do not include the writing of letters of contract to contractors as that it is done by the Secretary to the Commission and that the Claimant was contracted to supply 3,000 boxes provided that they were supplied by 4/3/04. He said that he knows Barrister Dokun Pedro and denied that he was not usually there when the contractors were discussing with Mr. Pedro. He agreed that he commented on Exhibits C16 -C21 that the keys were undersized. .He said that he was aware that the Claimant had discussed this with Mr. Pedro-but was not aware that Barrister Pedro gave approval that the ballot boxes be used. He was also not aware that Barrister Pedro said that his comments were non issue. He further stated that he rejected the ballot boxes because there was no work order for them and that the Claimant did not supply any extra ballot boxes outside Exhibits C16 - C21. Only 250 boxes were good the remaining 500'boxes were bad. He looked at Exhibit C8 and read paragraph 3, and stated that he had written his comments on Exhibit C16—C21 before he, along, with the Claimant went to see Mr. Pedro. He said that it is not true that as at 23/3/04 some other Contractors were still supplying ballot boxes to them and that he did not know when the letter of revocation of the contract was written. He said that he never accompanied the Defendant's officials to where they manufactured ballot boxes as that it is not part of his duties and that the comments he made on the keys were in regard to the rims of the said keys as they are not good for the security of the boxes. He stated that he wants the court to order that the Claimant should return the mobilisation fee paid for the 500 boxes that were bad and that their counter claim is not an afterthought as all the boxes the Claimant supplied were bad. He said that he did not return the bad ballot boxes to the Claimant and they are lying down unused, he stated further that they did not write to the Claimant to take them that there was no need to write. This witness was not re-examined.

The Evidence in chief of DW2 may be found at Pages 80-83 of the Court file wherein he stated that he is an Electoral Commissioner with the Defendant.
When cross examined by learned counsel for the Claimant he stated that he is a lawyer with 20 years at the bar. He looked at Exhibit C2 and stated that Exhibit C1 is one part of the contract between the parties. He stated that the Claimant introduced another term of the contract which was accepted by the Defendant and that there are other documents to substantiate this but he cannot see them in the documents shown to him- He stated that the Claimant was asked to supply 2000 boxes in this document and that the Claimant did not comply with the conditions in paragraph (S) - (ix) of Exhibit C2 before the first payment of N2.25 million v-/as made. He looks at paragraph ix of Exhibit C2 and states that there was a partial compliance and that he is not the legal adviser and that he does not award contracts. He stated that he is aware of the contract when he was on duty and that he was aware when this contract was awarded. He stated further that he was aware that the Commission inspected the Claimant's premises and that the inspection was made after the disbursement. He stated that the Commission did not comply with paragraph ix of Exhibit C2 and he stated in his evidence in chief that the boxes were to be delivered in batches. He stated further that it was contemplated in Exhibit C2 'that the boxes were to be delivered in batches though it is not expressly stated therein. He stayed that he informed the Claimant of the lapses verbally and the Commission then communicated this to her in writing. He stated further that he does not have a special relationship with the contractors and Exhibit C15 is the letter informing the Claimant of the lapses. He said that the Chairman does not bring ail letters addressed to him at a meeting of the Commissioners and that if the letter affects the commissioner he brings it to the attention of the Commissioner. He said that he has never seen Exhibit C8 before and could not say whether the Commission replied the letter. He stated that the conversation in respect of the keys was held in his office and CW1 was merely being apologetic and that she discussed with him. He said he fold her that the Commission was going to write to her and terminate the contract and that. He was aware that the storekeeper rejected certain number of boxes and she came to him to plead with him that she will change the boxes complained about. He looked at Exhibit C21 and stated that the delivery was made 10/3 and that he saw "the Statement of Claim herein. He stated further the he did not dispatch the letter to the Claimant and that he does not know who dispatched the letter and that it will surprise him to learn that the Claimant received the letter on the 26/3/04. He stated that he did not find out when it was received and that he has seen the counter claim filed by the Defendant and he remembered that they are claiming N1.5 million or a certain sum of money. He stated further that he taught Sales of Goods Law for 11 years and that he has document for the contract of the award of the 500 boxes. He stated that he will be surprised to hear that the Claimant denied that he told her that the contract will be terminated. He stated that he does not leak office secrets and when he looked at Exhibit C8 he stated that this- is a personal letter to the Chairman. He testified further that he does not have a special relationship with the Claimant and after looking at paragraph 9 of Exhibit C2 he said that he agrees that the mobilisation of N2.25 million was for the procurement of the materials for the ballot boxes. He also s fated that he communicated to the Claimant that the contract will be terminated before Exhibit C5 was delivered to her.
This witness was not re-examined and with the conclusion of his evidence learned counsel for the Defendant closed the case for the Defence.

FINAL ADDRESSES
Written final addresses were ordered and counsel complied. The Defendant's written address is dated 29/J/08 while the Claimant's written address is dated 25/2/08.

EXHIBITS
The following documents were tendered and admitted as Exhibits during the trial of this matter:-
1) Written Statement on Oath of the Claimant. Exhibit C1
2) Letter dated 8/1/04 Exhibit C2
3) Letter dated 9/1/04 Exhibit C3
4) Letter dated 10/3/04 Exhibit C4
5) Letter dated 12/3/04 Exhibit C5
6) Letter dated 7/4/04 Exhibit C6
7) Letter dated 4/2/04 Exhibit C7
8) Letter dated 23/3/04 Exhibit C8
9) Receipt dated 30/3/04 for Exhibit C9
N150/000.00 of the
10) Written Statement on Oath Claimant dated 12/5/06 Exhibit C10
11) Letter dated 28/1/04 Exhibit C 11
12) Letter dated 29/1/04 Exhibit C12
13) Letter dated 20/2/04 Exhibit C13
14) Letter dated 25/2/04 Exhibit C 14
15) Letter dated 9/3/04 Exhibit C15
16) 6 Nos Waybills Exhibits C16-C21

FACTS
From the pleadings and the oral and documentary evidence
before the court in this matter the facts are that the Claimant herein was contracted by the Defendant to supply to it 3,000 Ballot Boxes for the 2004 Local Government Elections in Lagos State for the total sum of N9/ OOO/ 000.00 (Nine Million Naira) calculated on the basis of N3,000.00 (Three Thousand Naira) per unit. She was given a mobilisation fee of N2.25Million to be utilised for the procurement of materials needed for the manufacture of the ballot boxes and delivery of the boxes was to be concluded not later than 29th February 2004. The delivery was expected to be made in batches. The Defendant later by Exhibit C14 conceded to the delivery date being not later than 4th March 2004 but the Claimant still failed to supply the said boxes within the specified time. Eventually the Defendant terminated the contract on the ground that the Claimant has failed to comply with the terms thereof and it asked the Claimant to refund the mobilisation fee advanced to the Claimant. She was aggrieved by this act of the Defendant and so "instituted this action in which the Defendant also counter claimed.

ISSUES FOR DETERMINATION
The Defendant's counsel formulated 5 issues for determination in his written address as follows:
1) Whether or not from the evidence before the court there is a breach of contract between the Claimant and the Defendant either by the Claimant or the Defendant.
2) Whether the termination of the contract between the Claimant and the Defendant is justifiable in law.
3) Whether nor there was a valid variation of the contract by the Parties.
4) Any proof of any special damages to enable (entitle) either the Claimant to judgment or the Defendant to judgement.
5) Whether the Claimant or Defendant is entitled to award of general damages.

Learned counsel for the Claimant formulated the following issues for determination in its written address:
1. Whether the Claimant has proved its case on the balance of probability to be entitled to the reliefs by it.
2. Whether the Defendant has proved its case on the 6alance of probability to be entitled to the relief claimed by it in the counter-claim.
I will adopt the issues as formulated by learned counsel for the Defendant as they seem to be appropriate in the circumstances. In doing so however I shall certainly consider the arguments advanced by learned counsel for the Claimant in his written address.

ISSUES 1,2 AND 3
1) Whether or not from the evidence before the court there is a breach of contract between the Claimant and the Defendant either by the Claimant or the Defendant.
2) Whether the termination of the contract between the Claimant and the Defendant is justifiable in law.
3) Whether nor there was a valid variation of the contract by the Parties.

Both counsel have agreed in their respective written addresses that there existed between the parties herein a valid contract and as correctly submitted by learned counsel for the Claimant it is neither the duty nor the place of a court of law to make a contract for the parties. All a court of law can do is to enforce the terms of the contract that both parties willingly entered into and it will not allow any party to read into-a contract a term which was not agreed to by both parties. See ABDULLA1 BABA VS NCATC AND ANOR 1991 5 NWLR (PT 192) 388 AT 437. Learned counsel for the
Defendant in his written address has argued that the Claimant has breached the contract between the parties in that there was a lapse of security over the ballot boxes and the said boxes were supplied within the lime stipulated by the contract. Learned counsel for the Claimant on the other hand has argued that the Defendant unilaterally varied the terms of the contract by its acceptance of 750 boxes and by changing the purpose of the mobilisation paid.
In Exhibit C2 which is the letter of offer to the Claimant which is dated 8/1/04 the Defendant offered the Claimant the contract to supply 3000 ballot boxes under the following terms, and I will reproduce part of the said Exhibit hereunder as follows:-
'Further to your quotation for the supply of aluminium ballot boxes dated 10TH March 2003,1 wish to inform you that the commission has approved your proposal for the supply of the aluminium ballot boxes at the unit price of N3,000 under the following terms:
i. Approved to supply 3000 No aluminium ballot boxes at the rate of N3, 000.00 per unit amounting to N9million.Thepayment of VAT and withholding tax are included in his award.
ii. Guarantee of adequate security during the production of the ballot boxes up to the point of their delivery to the Commission.
ix. On satisfactory fulfilment of the conditions as stated above/ the commission would pay 25% of the total sum i.e.N2.25 million to your company as mobilization tee. The fund will be utilized for the procurement of material need to the manufacture of the ballot boxes.
x. Immediate commencement of the production as the delivery of all the boxes must be concluded not later than 29th February 2004. You are also expected to deliver the boxes as they are produced to the commission.
(Underlining is mine.)
The Claimant by Exhibit C3 accepted the above terms and is therefore bound to comply with them. In Exhibit C14 however the issue of 750 boxes was raised for the first time and therein the delivery date for that amount of boxes was extended till 4/3/04. By the contents of Exhibit C21 however the fast batch of 132 ballot boxes were not delivered by the Claimant until 10/3/04 which is outside the time stipulated in Exhibit C14 I therefore fail to see the point in the argument of learned counsel for the Claimant on this issue as the contents of the above letters are very clear and none
of the parties can give evidence to vary same. So the evidence of the Claimant notwithstanding the written agreement between the parties was that the Claimant was to deliver 750 ballot boxes covered by the advance payment made to the Claimant on or before Thursday 4th March 2004 or refund the said advance payment made. The Claimant by Exhibits C20 and C21 supplied a total of 233 boxes after the said due date and the Defendants accepted them from her so it has waived its right to ask for a refund of the advance payment made to the Claimant. If was really serious in wanting its money back it would have given instructions to the Stores Officer to reject the late delivery. DW1 has testified that they did not return the bad boxes to her so they accepted them which act does not support the averment of the Defendant in paragraph 26 of the Amended Statement of Defence and Counter claim.
Where the terms and conditions of a contract have not been complied with it follows that it' can be terminated by either party that is aggrieved by this inaction that has brought about the breach. In paragraphs 24, 25 and 26 and 27 of its Amended Statement of Defence and Counter claim dated 21/11/05 the Defendant averred as follows;
24. Further to paragraph 21 above the Managing Director of the Claimant was specifically advised by the Defendant's Commissioner Pedro to see the secretary to the Commission for official notification of non compliance and revocation even after the said Mr Pedro had directly informed the Claimant's Managing Director of the Defendant's decision.
25. That between TP March 2004 and the time when the Claimant admitted it was officially informed of the revocation, it claimed it had intensified her rate of production of the boxes. The Defendant however limited itself to accepting delivery of the 750 ballot boxes covered by the amount of money advanced that is N2.25 Million.
26. The Defendant naturally rejected the additional 181 ballot boxes attempted to be foisted on it by the Claimant because they did not comply with agreed specification and were of no value to the Defendant as they were attempted to be supplied outside the agreed timeframe.
27. In the light of all the breaches of the terms of the contract by the Claimant in spite of various encouragement and concessions granted by the Defendant, the Claimant frustrated the contract and the Defendant had no choice but to formally revoke same for record purposes. The Defendant will rely on the letter dated 12th March 2004 in this regard at the trial.

The Claimant in paragraph 9 of her reply averred as follows:-
9. In answer to the averments in paragraphs 23 and 24 of the Amended Statement of Defence which are denied the Claimant avers that the only issue raised with its anaging Director was on the issue of non insertion of key rims to beautify the opening of the ballot boxes and' no other complaint. This issue was duly explained in the Claimant's letter of 23rd March 2004. Furthermore, the Defendant's Mr Pedro never informed the Managing Director of the Claimant’s Company before the receipt of the Defendant's letter that the contract would be terminated rather she was advised to see the Secretary of the Defendant Commission.”
It can be seen that the Defendant has itemised above in very clear terms the sins of the Claimant as it were vis-à-vis the contract between them. The Claimant is alleged to have (a) failed to supply the 750 boxes at the agreed lime; (b) failed to provide adequate security during the production and (c) has also failed to comply with the agreed specification. However, the only allegation proved against the Claimant from the evidence before this court is the delayed delivery of the boxes. The Defendant has not proved anything else. The evidence of DW1 is that he does not go to visit the place where the boxes are manufactured and DW2 testified that he visited the premises but appears not to have written any report of his visit as there is none before tills court. The letter of offer did not specifically mention that a certain type of key should be used for the ballot boxes neither is there any evidence before me that the premises where the Claimant was manufacturing the ballot boxes was insecure. The , defendant therefore cannot introduce terms into the contract that did not exist as at the time the offer was made. I therefore do not find the Claimant liable for those allegations.
I accordingly find that there was a valid contract between the arties which was validly varied by the Defendant. I find also that he Claimant breached the varied term of the centred by failing o supply all of the 750 ballot boxes within the specified period and o the termination was justified in law. Issues 1-3 therefore are resolved in favour of the Defendant.

ISSUES 4 AND 5
1) Any proof of any special damages to enable (entitle) either the Claimant to judgment or the Defendant to judgement.
2) Whether the Claimant or Defendant is entitled to award of general damages.
The evidence before this court does not sustain the Claimant’s claim for N2, 260, 000.00 being the cost of producing an additional 750 ballot boxes as it had already been paid mobilisation to Exhibit C14. This claim is therefore misconceived and cannot stand as the Claimant has not proved that it had supplied the total of 3000 ballot boxes before producing the 750 now claimed in this action. The Defendant on the other hand has also not proved the allegation that it had to re-award the contract for 500 ballot boxes so that claim is also misconceived. It follows therefore that neither party has proved their claims before the court in this matter so these 2 issues are resolved against both parties.

In conclusion therefore both sets of claims before me fail and are dismissed. I believe that the Justice of this case demands that each party should bear its own costs.


A.A. PHILLIP (MRS)
JUDGE
09/04/09

(04-5-09) GILL V. CANAUDMETAL

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT IKEJA
TODAY, FRIDAY, THE 20th DAYOF MARCH. 2009
BEFORE THE HON. JUSTICE L.G.A. MARSH-JUDGE

BETWEEN:- SUIT NO.ID/2012/2002

MR. TEDIUS PAUL GILL ... ... ... ... ... CLAIMANT
(Substituted by the Order of Court made on the
30th of June 2008 for himself and on behalf of
the Estate of Late Anthony Adolph Gill)
AND
CARNAUDMETAL BOX NIGERIA PLC. ... ... DEFENDANT

JUDGMENT

Claimant in the amended statement of claim wherein he seeks the following
reliefs against the defendant:

Terminal benefits and entitlement owed the Claimant
by the defendant Company - N30,574.500.00
Solicitor's fees and cost of this suit - N 7.643.625.00
TOTAL - N38.218.125.00
Interest on the terminal benefits at the rate of 30% per annum from June 30, 2002 until judgment sum is fully paid.
The Defendant by an amended statement of defence averred that the Claimant's claim is frivolous, vexatious, gold digging and an abuse of the process of Court and ought to be dismissed with cost.
The Claimant filed amended reply to the amended statement of defence. The suit proceeded to trial on 20th February 2007. Claimant adduced the evidence of two witnesses while the Defendant called only one witness and closed its case. The first Claimant hereinafter referred to as CW 1) Olusegun Otenaike, a retiree and now a consultant. His testimony is as follows:- He knows both Claimant and the Defendant. He retired from Defendant's service.
He tendered the following documents: His written statement Exhibit "A". -
He said he referred to some letters in paragraph 9 of his Exhibit "A". These letters he tendered as Exhibit "B". He tendered Exhibit "C" which he said he refereed to in the same paragraph as letter of appointment.
In paragraph 16 of Exhibit "A", he said he referred to performance review discussion. This he tendered as Exhibit "D".
In paragraph 20 and 21, he referred to a company's policy in existence signed by one Mr. Cole Exhibit "E".
He said he stated in paragraph 17 of Exhibit "A" that long service award ceremony was held in 1999 in honour of the Claimant at which he was a witness to the certificate and gift presented to him. The ceremony was held at a restaurant in Awolowo Road, Lagos. The presents given to the Claimant by one Mr. David Pullen were tendered as ID 1 and ID 2. One Raymond Weill Wrist Watch and a certificate of long service.
Cross-examined, witness admitted he was employed by the Claimant in 1970 by the Crown Cork and Seal Co. Ltd. The company had been sold and no longer in operation. Witness admitted he rose to the post of Managing Director when the company was still in operation. The Claimant was the Managing Director before he assumed that office. He could not remember when he became the Managing Director. The decision that he should assume the post of Managing Director was taken at the board meeting. He could however not say whether the minutes were taken at the meeting. He worked closely with the Claimant for many years and he's familiar with his signature. If shown a document bearing the Claimant's signature, he would identify it. He identified Exhibits "F and F1”. Witness said he was a controller of the company in 1999 while the Claimant was the Managing Director but he was not the one that made the award to himself. He said the award was presented by David Pullen but signed by Mr. GUI, the Claimant as Managing Director. David Pullen was the Overseas Director. He admitted that there was no reference to David Pullen on ID 2. After having had a look at Exhibit "F". Clause 3 and said that on the date mentioned, the Claimant resigned on medical ground. He also said he was not appointed to succeed Claimant on that day and was not sure his appointment took effect on that day. When he joined the company, witness said the Defendant was there and he employed him. Witness said he was told that the Claimant was employed in 1969 and he employed him in 1970. He was with Crown Cork in 1969.
Re-examined: Witness said the Claimant did not retire but resigned as the Managing Director. He said his appointment as Director was not confirmed that day as he had to be given a letter to that effect. The Claimant continued as Chairman.
CW 2 - the Claimant, testified that he was employed in Nigeria by the Crown Cork and Seal Company Nigeria which is part of the Crown Cork U.S.A. In the late 1990’s, he said Crown Cork worldwide took over Carnaudmetal Metal Box Worldwide here in Nigeria. There were three companies - two of them were owned by Crown Cork and Seal while the 3"1 was owned by Carnaudmetal Box. The three companies, he explained were merged together and became known as Carnaudmetal Box Ltd. (Crown Cord & Seal Company). When they were merged, he said he had various positions which were detailed in his written statement on oath Exhibit “G".
He also tendered the following documents. Exhibit "H", copy of the contract referred to in paragraph 3 of Exhibit "G". a wristwatch. Exhibit “J” referred to in paragraph 9 and Exhibit ''K", the copy of the letter by Claimant's Solicitor and letter dated 10th October 2002 and the reply dated 29th October 2002 Exhibits "L and LI".
He also tendered Exhibit 'W letter dated 2nd August 1991 by one Holdron confirming his appointment as Deputy Chairman, also his performance review Exhibit “N” a letter dated 12th June 2001 by one John Conway and another dated 12th June 2001 by David Pullen.
Also the following letters by David Pullen: letter dated 5th April 2001, 9th April 2002 and E-mail dated 28th May 2001 by David Pullen. Exhibits P - P3, the bill of cost, Exhibit "G" and long service award earlier tendered as ID 2 now marked Exhibit "R”.
Cross examined, witness admitted being familiar with Exhibit "A”, and its content and that it is the basis of his claim. He told the Court that at a time he was the Managing Director of Crown Cork and that as Managing Director he presided over Board of Directors meeting and that the minutes of the meeting were taken by the secretary which he later signed. He admitted he signed Exhibit "S".
Witness said the merger between Crown Cork and Carnaudmetal Box took place about 1997 - 1998 in Nigeria and Worldwide. He said merger took place sometimes in 1995. When the merger took place, he said he was asked by the Vice President Carnaudmetal Box to get involved initially with Carnaudmetal Box where there had been some fraud by various managements employed at that time and on a daily basis. He said he travelled from Ibadan to Agbara in Ogun State and helped to reorganise the company eventually handled the sale of their company to Levends Group. After that he said he was asked to go back to Ikeja where there are still two functioning companies. Crown Cork and Seal and Camaud Nigeria Ltd. He said he was asked by both Carnaudmetal Box U.K. and Crown Cork and Seal, U.K. to coordinate the merger of the three Nigerian companies.
After having had a look at Exhibit “T" as directed witness said it reflected the arrangement as he had earlier stated. The arrangement was to cover his normal responsibility with Carnaudmetal Box. He denied being the Managing director of Carnaudmetal Box in 1999 but its Chief Executive Officer. He admitted being presented with Exhibit "R" in 1999 and that Exhibit "R" was signed by him as the Managing Director. Asked why as Chief Executive Officer he also signed Exhibit “V” as Managing p Director, witness explained that there was no difference between the two. All companies UJ operating in Nigeria operate a system whereby after 10, 15, 20 or 35 years in service a certificate is awarded to their employers. It is normally given at the annual Christmas party and that as Chief Executive Officer of the company, he was authorized to sign on behalf of the company because, he was the Senior Executive there. Exhibit "R" he said was awarded to him by the Financial Director but authorised by David Pullen, the Vice President (Africa). He admitted signing Exhibit "R" which he said was a certificate, not an award. He admitted stepping down as M.D. in 1991 on medical grounds. He also admitted that Exhibit "Fl" contained something relating to his stepping down as M. D. in 1991 on medical grounds. He also admitted that Exhibit "Fl" contained something relating to his stepping down as M. D. in 1991. He tendered his term of Employment Exhibit "H". He admitted that Exhibit "H" was a reflection of his arrangement with the company and became effective from March 5. 1980. It does not bear a Nigerian address and in agreement with the law in the United Kingdom. There's no part of it, he admitted that talks about the law in Nigeria and the currency too is not Nigerian. Asked why he had to give medical ground as the reason for his resignation at Crown Cork in 1991, witness told the Court that in 1991 there were series of scandals in the United Kingdom regarding pension fund. The very notorious one he said, was that of the Daily Mirror where they were defrauded. He said he had to look for a way to protect his pension fund. That the company suggested that if he was able to provide medical ground as a reason, they would be able to pay him off particularly as he was not resident here. Asked farther whether it was correct that he retired on medical grounds, witness reacted by saying the document has told the truth, that he resigned on medical grounds. He farther stated that he was employed in 1996 by Carnaudmetal Box as Regional Director. That his term of employment is contained in Exhibit "V” and had dealings with Crown Cork Coordination centre. When he was employed by Carnaudmetal Box, witness said he was in Nigeria but some of the discussions between him and Carnaudmetal Box took place in Nigeria and others outside. Some of the discussions is also contained in the memo by the coordinator centre New York, Exhibit "V”. Some letters, he said were sent to his house address in Spain because he used to spend part of his holidays in Spain from time to time. He denied that the pain on his hips affected his performance. He denied that he was employed outside Nigeria. He said he was subject to immigration law and hence the reason why his letter as address to his house in Spain. He said David Pullen was the assessor of his performance review. He said David Pullen never had to sign and he did not sign his assessment. He admitted that he was paid certain pensions. Asked at what stage was he entitled to pension, whether after service or before service. Witness told the Court that it depended on the circumstances. He said he once stated that he resigned on medical grounds and resignation had nothing to do with pension.
Re-examined, PW 1 said at the time he was paid his pension he had not resigned. DW 1 - Adebayo Joseph Oladele. He works with NAMPAK Nigeria Plc formerly Carnaudmetal Box. He deposed to a written statement Exhibit "Y". He knows Emeka Anyacho. Human Resources Controller of the company. He's no longer with the company. When he was with the company, he deposed to a written address. He tendered the written deposition. Exhibit "Z".
TO BE CONTINUED

CONTINUED FROM LAST WEEK
Cross-examined, witness told the Court that Nampak Nigeria Plc and Carnaudmetal Box metamorphosed into Nampak Nigeria Plc. He said Nampak bought over Carnaudmetal Box. He was not employed by either of the two companies. He said he was employed by Metal Box Company. He told the Court Camauld bought Metal Box and the name became Carnaudmetal Box. Later Crown Cork bought over Carnaudmetal Box and the name became Carnaudmetal box Crown and Seal Company. In the year 2002, he said, Nampak bought over Carnaudmetal Box and Cork and Seal Company. Nampak bought Carnaudmetal Box in 1995. He said he was not sure the information he gave was correct but was sure Nampak bought over the Defendant Company in the year 2002. He knew the Claimant. He met him in 1996 when he, the witness was the Sales and Marketing Controller. He admitted that Claimant was paid his entitlement in 1991. He said the Claimant did not hide the fact that he was invited from retirement to conclude the merger exercise. The only evidence he had on the payment of his entitlement was the Claimant's own statement. He said the Claimant was employed Overseas and retired in Nigeria and it is only where he was employed that the documents relating to his employment would be. Wtness said it did not lie within his jurisdiction to get the Claimant's pay off paper. By that, he meant his retirement benefit. He said the Claimant was paid his total benefits and emolument upon his voluntary retirement from service in the year 2002. He had no documents to show for that but went on to say that it was traditional for anyone in the Claimant's level who retired from the company to retire with his vehicle and his entire payment. That in the case of the Claimant, he went with two vehicles. He was Chairman of Crown. He did not retire in the year 2002. He retired in 1991. Witness said he was not there when the Claimant retired in 1991 but from Exhibit "M" shown to him. the Claimant was to visit the company four times in a year, that he could play the role of Executive Chairman. Performance review discussion, he explained was about meeting with top management to review the performance of the past year and to chart a part for the New Year. He confirmed that Exhibit "N" was the performance review on the Claimant in the year 2000 while Exhibit "D" was the performance review discussion on the Claimant. Mr. Tony Telford, he said. Wrote the review while David Pullen, the African Director of Crown wrote the report on the Claimant. Exhibit "P". he said was sent to Tony Telford on 29th May, 2001 and by Exhibit "P", he went on, the Claimant was appointed Deputy Chairman of Carnaudmetal Box Nigeria with responsibility for Corporate affairs. He was aware of the long service award in 1999 but was not aware that Claimant was given long service award Exhibit “R”. Emeka Emenacho was his colleague but he could not tell why he retired from the company. With this witness, counsel for the Defendant closed his case. Below is a resume of the evidence by the Claimant:
Claimant - Witness was employed by Claimant at Crown Cork and Seal Company Nigeria Ltd. He tendered Exhibit "A". In his Exhibit "A", he said the Claimant continued as Regional Director and Civil Executive of Carnaudmetal Box until he retired on 30th June 2002. He said in his Exhibit that Claimant was employed by Crown Cork and Seal United Kingdom in 1980 and posted to Nigeria in 1980 as alleged by the defendant because the Claimant was the one who employed him in 1970 in Nigeria and he was then Regional Director and general Manager. That Claimant later became the Managing Director of the Company until the merger and that after the merger he continued as Chief Executive of the Defendant's company. That Claimant did not resign his appointment on medical grounds as Managing Director in 1991. That a long service award ceremony was held in 1999 in honour of the Claimant at which he was a witness. He said the award took place at a restaurant in Awolowo Road, Lagos. Claimant was given two presents at the ceremony. One Raymond Weill wristwatch and a certificate of long service award.
By 1970, Crown Cork and Seal had been sold and no longer in operation. Witness assumed the post of Managing Director. The decision was taken at a board meeting. He could not say whether any minute was taken. Claimant did not make the awards to himself. The award was presented by David Pullen, the Overseas Director. He later shifted and admitted that Claimant resigned on medical grounds. That he was not appointed to succeed the Claimant on the day the board meeting was held that is Monday 2. September. 1991. Exhibit "Fl" Clause 3 titled acceptance of Mr. Gills Resignation as Managing Director - stated that Mr. Gill (the Claimant) resigned as Managing Director of the Company with effect from the date (2nd September 1991). The resignation was on medical grounds. Exhibit "Fl" showed that witness was not confirmed as a Director that day. He further shifted grounds after having had a look at Exhibit "Fl" and said the Claimant did not retire but resigned as Managing Director.
CW 2 tendered his statement on oath. Exhibit "G". He also tendered Exhibit "H", his terms of employment with Crown Cork Company Limited. It states that the employee is engaged by the company as Director and General Manager in Nigeria in such capacity as maybe agreed on the following terms and conditions from 1st January 1980. The condition list among others clause (a) that the employee's commencement salary shall be at the rate of #42.000 per annum and shall be payable monthly in arrears on the 1st day of each month.
Clause (m) of Exhibit states that this contract shall be construed in accordance with the law prevailing in the United Kingdom. Witness admitted that Exhibit "H" was a reflection of his arrangement with the company and became effective from 5th March 1980. It does not bear a Nigerian address and is in agreement with the law in the United Kingdom. Witness said he was employed in 1996 by Carnaudmetal Box as Regional Director. That his term of employment is contained in Exhibit "V". His health deteriorated and he was advised by Dr. Laws H. Sevitt. his doctor, a surgeon based in United Kingdom to retire in the interest of his health. Exhibit "IT minutes of the meeting of 2nd September 1991. Exhibit ^Fl" that Claimant retired in 1991. He was employed in Nigeria but some of the discussions relating to his employment took place in Nigeria and other outside the country. He said some of the discussions on his employment were contained in memo by Coordinating Centre New York, Exhibit "V". Some letters were sent to his house address in Spain Villa Ikeja, 7, Carrino de Marco Plaza, Mucharista Campello - Alicante Spain. Witness explained that the reason why his letter was sent to Spain was that he was subject to immigration law. He confirmed Exhibit "W" and admitted he collected pension on his retirement but remained in employment.
Resume of Defendant's evidence. Adebayo Oladele - deposed to written statement on oath Exhibit "V. Knew Claimant in 1996 when he, the witness was the Sales and Marketing Controller. Claimant was employed Overseas and retired in Nigeria. That it is only where he was employed that the document relating to his employment would be. It was not possible to get the Claimant's pay-off paper. He was paid his total


benefits and emolument upon his voluntary retirement in the year 2002. Witness had no document to show for the payment but he retired with two vehicles and his entire payment. He retired in 1991 not 2002.
Both counsel filed written addresses which they adopted on 21/1/09. The Defendant in his written address posits the following issues for determination:-
1. Whether in view of the parties to the terms of employment of 1980 Exhibit "H". the proper panics are before the Court.
2. Whether in view of Exhibit "Fl", the Claimant's action is not statute barred.
3. Whether in view of Exhibit "H" - Terms of Employment of 1980 which is the foundation for the Claimant's claim, whether the Lagos State High Court has jurisdiction to entertain the Claimant's action.
4. Whether in view of Exhibit "FF minute of2Dtl September, 1991, Exhibit "H” the medical report. Exhibit "W". the letters of Claimant's pension payment, the Claimant's first contract of employment did not terminate in 1991.
The Claimant in his written address also posits three issues for determination. These are:-
i. Whether the Claimant was in continuous and unbroken employment of the Defendant Company for 33 years from 1969 - 2002 when he finally retired.
ii. Whether the Claimant is entitiled to the severance package on retirement in 2002 as stated in clause (c) of the terms of employment contract signed by the parties in 1980 (Exhibit "H").
iii. Whether the Defendant Company is estopped from denying that the Claimant served and worked for the Defendant Company for a continuous period of 33 years,
The issue I consider appropriate and which I will adopt for the determination of the suit is whether the Claimant has established that he's entitiled to the relief claimed.
By Exhibit "H", the term of employment between Claimant which also forms the basis of the Claimant's claim among others, reads in part that employee is engaged as Director and General Manager in Nigeria in such capacity as may be agreed on the following terms and condition from 1st January 1980:
The employees commencing salary shall be at the rate of#s42.000 per annum and shall be payable monthly in arrears on the I"1 day of each month. It however ended by saying in clause (m) that there contract shall be construed in accordance with the law prevailing in the United Kingdom. Thus, in the event of any dispute such as the present, the Nigerian Court has no jurisdiction because the parties to the agreement had already indicated that in their agreement.

See: VAD1SNIG. LTD. VS. GREAT NIG. INSURANCE CO. (2007) 4 - 5 SC 236 AT260.
This Court cannot therefore consider clauses B and C of Exhibit "H". Claimant was advised by his doctor, one Dr. Laws H, Sevitt, consultant physician of 141, Hariey Street wrote to suggest that the Claimant should retire in the interest of his health. Pursuant to the advice, the Claimant on Monday. 2nd September 1991 at the board meeting of the company tendered his resignation as Managing Director of the company with effect from that day. It was resolved that resignation of the Claimant, A. A. Gill as Managing Director be and was accepted. Claimant was paid his entitlement 1991. He was paid his total benefits and emoluments. He retired with effect from 30111 September, 1991. Exhibit "M”, a letter written to him reads:

2nd August. 1991.

Mr. Tony Gill,
Crown Cork & Seal Co. (Nig.) Ltd..
P. 0. Box 142.
Ikeja, Nigeria.

Dear Tony,

I write to confirm acceptance of your resignation as Managing Director effective 30 September 1991 and to confirm your appointment as Executive Chairman effective 1st October. 1991.

In this new role you will be expected to visit the companies at least four times per annum and expenses relating to these visits will be reimbursed by Crown Cork in Nigeria.

Yours sincerely.

Sgd. Richard L. Holdron
Managing Director.
He collected his pension #s220,000.00 vide Exhibit "W". Cross-examined by counsel for the Defendant, Claimant admitted receiving his pension but was still in employment. The author of Black's Law Dictionary 6th Edition defines retirement and pension as:
Retirement: Termination of employment, service, trade or occupation upon reaching retirement age or earlier at election of employee.
Pension: Retirement benefit paid regularly, with the amount of such based severally on length of employment and amount of wages or salary of pensioner. Deferred compensation for services rendered.
By a letter dated 13th June 1996. Exhibit "X and T", the Claimant was recalled from retirement and offered the position of Regional Director for Nigeria. As Regional Chairman, the letter indicated that he would still retain his position as Chairman of both Crown and CAN makers but would add the role of Supervisory Director for Carnaudmetal Box Nigeria Pic. The two letters were sent to the Claimant at Villa Ikeja, 7. Carrino de Marco Plaza Mucharista Campello, Alicante, Spain. I agree with the Defendant's counsel that a letter cannot be sent to a person in Spain if such a person is resident in Nigeria.
Cross-examined as to whether other letters addressed to him earlier were directed to a Spanish address. Claimant replied that the letters were addressed to his house in Spain. That he spent his holidays in Spain from time to time. On further cross examination as to whether Carnaudmetal Box employed him outside Nigeria, he replied that he was subject to immigration law, hence the reason why the letters were written and addressed to his house in Spain. That to me sounds ridiculous and only serves to show that Claimant was up to some mischiefs and bolsters up the Defendant's case that the contract of employment the Claimant entered into from 1"* January 1996 was a new contract, not an extension of the 1980 contract.
I accept the fact that the Claimant was the Managing Director in 1999 when Exhibits **N. R and J" were made. He was cross-examined as to why he signed Exhibit "R" as Managing Director while he had earlier referred to himself as Chief Executive Officer. Claimant replied that there was no difference, that all companies operating in Nigeria operate a system whereby after 10, 15, 20. 35 years a certificate is awarded to their employees. That it was normally given at the Annual Christmas Party and that as Chief Executive Officer of the company, he authorized and signed on his behalf.
I must say that upon all the foregoing considerations, I found it hard to believe that the Claimant not hand to fool the Defendant, establish long service and hoodwink the Court. I found it hard to believe the evidence of the Claimant. I accept that of the defence wherever it conflicts with that of the Claimant. I must say the Claimant had failed to establish his claim. Claimant's case is accordingly dismissed.

L.G.A. MARSH
(JUDGE)

(20-4-09) FRN V. EVBODAGHIE

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT HIGH COURT No. 34 CRIMINAL DIVISION IKEJA
BEFORE HON. JUSTICE J.O.K. OYEWOLE
TODAY MONDAY THE 2ND DAY OF MARCH, 2009.

SUIT NO: 1D/64C/2007

BETWEEN

FEDERAL REPUBLIC OF NIGERIA....COMPLAINANT/RESPONDENT

AND

CHIEF SUNNY EVBODAGHE....................ACCUSED/APPLICANT

RULING

At the close of prosecution's case, the learned defence counsel Mr. Onyeke opted to make a no case submission. He submitted that the issue for determination is whether the prosecution has made out a prima facie case by establishing the elements of the offences the defendant is charged with sufficient in law to warrant his being called on to enter a defence by the court or whether the evidence adduced by the prosecution witnesses have been so discredited during cross-examination or is so manifestly unreliable that no reasonable tribunal can safely convict on it.

He referred to OMISORE VS STATE (2004) 28 WRN 106 at 126, IBEZIAKO VS C.O.P (1963) 1 ANLR 61 and ONAGORUWA VS STATE (1993) 7 NWLR (PT 303) 49.

He started by considering whether the prosecution has established the elements of the offences alleged against the defendant. On count 1 of attempt to obtain money by false pretences pursuant to Section 5, 8 (b) and 1 (3) of the Advance Fee Fraud and other Fraud Related Offences Act No 14 of 2006, he outlined the ingredients of the said offence and submitted that the prosecution failed to establish any of the said ingredients.
He referred to JEGEDE VS STATE (2001) 14 NWLR (PT 733) 264 and FRN VS OGATINMIR1N (2005) 3 QCCR 191 at 220.
On count 2 of use of premises for sending document containing false pretence contrary to Section 3 of the Advance Fee Fraud and other Fraud Related Offences Act No 14 of 2006, Mr. Onyeke once again outlined the legal ingredients thereof and submitted that the prosecution failed to tender any document containing false pretences that was sent from the defendant's premises or produce or give any evidence of the alleged recipient thereof thereby failing to establish the necessary ingredients thereof.

Moving to the offence of possession of documents containing false pretences pursuant to Sections 6, 8 (b) and 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act No 14 of 2006 contained in Counts 3,5,7 and 9 the learned lead defence counsel once again outlined the legal ingredients thereof. He referred to FRN VS ODIAWA (2006) 5 QCCR 1 at 88-89.

He submitted that for the offence here to be made out, the document involved in its tangible form must have been found in the physical possession of the defendant and that 1 being an illiterate it cannot be assumed that he knew or ought to have known the existence of the alleged documents herein without adequate .proof which was lacking in the case presented by the prosecution.

He urged the Court to dismiss the counts of possession and referred to Section 2 (b) Illiterates Protection Law, Cap 67 Laws of Lagos State, ALOBA VS FRN (2002) 14 WRN 45 at 53, ADETORO VS UBN PLC (2007) ALL FWLR (PT 396) 590 and ZARIA VS OKON (1959) SCNLR 562.

On the counts of forgery in counts 4, 6, 8, and 10 the learned defence counsel once more outlined the necessary ingredients thereof and referred to ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 and BABALOLA VS STATE (1989) 4 NWLR (PT 115) 264.

He submitted that the prosecution failed to show that the documents in question were forged or that it was the defendant who forged them.

He then proceeded to the second leg of his submissions alleging the non reliability of some key prosecution witnesses as a ground for upholding his no case submission. He referred to UBIERHO VS STATE (2004) ALL FWLR 1028 at 1044.

He reviewed the testimonies of PW1, PW2 and PW3 and submitted that they were sufficiently discredited under cross-examination to render them totally unreliable.

He urged the Court to hold that the prosecution failed to make out a prima facie and accordingly uphold the no case submission.

For the prosecution Mr. Ugwu opposed the no case submission and submitted that the issue for determination is whether the prosecution has made out a prima facie case which will require the Honourable Court to call on the defendant to enter his defence.
He equally set out the various legal principles guiding the consideration of no case submissions and referred to The Practice Direction of Lord Parker dated 9th February, 1962 and published in (1962) 1 All E.R 448, EKWENUGO VS FRN (2008) 10 MJSC 79 at 84-85, DABOH VS THE STATE (1977) 11 NSCC 309,
AMINU VS STATE (2005) 2 NWLR (PT 909) 180 at 191, YAU VS STATE (2005) 5 NWLR (PT 917) 1 at 22 and AJIBOYE VS STATE (1995) 8 NWLR (PT 414) 408 at 414.

He reviewed the evidence adduced so far by the prosecution and outlined all the essential elements of the alleged offences. On the count of attempt to obtain money by false pretences, he outlined the essential elements of the alleged offence and reviewed the evidence adduced so far by the prosecution and then submitted that the said offence has been established by the prosecution.

He referred to AGWUNA VS A.G. FEDERATION (1995) 5 NWLR (PT 396) 418 at 438 and STATE VS OLADIMEJI (2003) 14 NWLR (PT 839) 57.

On count 2 of allegedly using premises for sending document containing false pretence, the learned prosecutor once again outlined the ingredients thereof and submitted that this count has been established. He referred to ODUA VS FRN (2002) 5 NWLR (PT 761) 615.

Moving to counts 3, 5, 7, and 9 of unlawful possession of documents containing false pretence, he equally outlined the legal ingredients and the adduced evidence and submitted that the alleged offence has been established. He referred to BLACK'S LAW DICTIONARY 7th Edition 1163.

Finally on the counts of forgery in counts 4, 6, 8 and 10 he similarly outlined the legal ingredients and the adduced evidence and submitted that these counts were equally established.

He referred to ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 at 592, BABALOLA VS STATE (1989) 4 NWLR (PT 115) 264 at 277, OSONDU VS FRN (2000) 12 NWLR (PT 682) 483, AGWUNA VS AG FEDERATION (supra) and STATE VS OLADIMEJI (supra).

He went on to submit that the court is not to determine the guilt or innocence of the defendant at this stage and that the literacy level of the defendant is an evidential issue to be determined by the court at the end of trial and not an issue of address of counsel.
He referred to R VS COKER 20 NLR 62, EKWENUGO VS FRN (supra), OGUGU VS STATE (1994) 9 NWLR (PT 366) 1 at 38, NIGER CONSTRUCTION LTD VS CHIEF OKUGBENI (1987) 4 NWLR (PT 67) 787,
GIRGIRI VS ELF MARKETING (NIG) LTD (1977) 2 NWLR (FT 487) 368 at 378 and OLADEJO VS STATE (1994) 6 NWLR (PT 348) 101.

In totality, he urged the court to overrule the no case submission and call upon the defendant to enter into his defence.

I have duly considered the submissions of the counsel for the two sides.

The sole issue for determination herein is whether the prosecution has made out a prima facie case against the defendant sufficient for the court to call on him to enter into his defence.

The meaning of a submission that there is no case for a defendant to answer is that there is no evidence on which even if the court believes it, it could convict. The question whether or not the court does believe the evidence does not arise, nor is the credibility of the witnesses in issue at this stage.
See R VS COKER & ORS 20 NLR 62. DABOH VS STATE (1977) 11 NSCC 309 at 315 and STATE VS EMEDO (2001) 12 NWLR (PT 726) 131.

As well submitted by both counsel, a no case submission may properly be made and upheld when there has been no evidence to prove an essential element of the alleged offence or 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 tribunal could safely convict on it.
See IBEZIAKO VS C-O.P (1963) 1 SCNLR 99, and STATE VS EMEDO (supra).

It must be pointed out that a prima facie case is not the same as proof, which comes later when the court is to make a finding of guilt of the defendant, it is evidence which if believed and uncontradicted, will be sufficient to prove the guilt of the criminal defendant.
See AJIDAGBA VS I.G.'P. (1958) SCNLR 60 and EMEDO VS'STATE (SUPRA) at 151-152.

It is also important to say that in a no case submission, the Court should be brief in its comments as only one side of the case has been heard and it would be premature and prejudicial to extensively pronounce on the evidence or facts of the case at that stage.
See 'CRIMINAL PROCEDURE IN NIGERIA, LAW AND PRACTICE' by OLUWATOY1N DOHERTY at 272-273, RVS COKER (supra), AJIBOYE VS STATE (1995) 8 NWLR (PT 414) 408 at 413 and CHIEF ODOFIN BELLO VS THE STATE (1967) NMLR 1 at 3.

Count 1 is attempt to obtain money by false pretences pursuant to Sections 5, 8 (b) and 1 (3) of the Advance Fee Fraud and Other "Fraud Related Offences Act No. 14 of 2006.
The particulars of the said Count 1 state that the defendant represented to a certain Richard Walter Dennis Jr that one late Johnson Rosland of Florida USA kept two trunk boxes containing the sum of US $9.5 million, Gold and valuable documents of properties with Inter Trust Global Security firm based in the United Kingdom.

To appreciate the intendment of the offence it is necessary to set out all the provisions of the sections of the Act involved.

"Section 1
(1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud -

(a) obtains from any other person, in Nigeria or in any other country, for himself or any other person;
(b) induces any other person, in Nigeria or in any other country, to deliver to any person; or
1 (c) obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, is guilty of an offence under this Act.
(2) A person who by false pretence, and with the intent to defraud, induces any other person, in Nigeria or in any other country, to confer a benefit on him or on any other person by doing or permitting a thing to be-done on the understanding that the benefit has been or will be paid for is guilty of an offence under this Act.
(3) A person who is guilty of an offence under subsection (I) or (2) of this section is
liable on conviction to imprisonment for a term of not more than 20 years and not less than 7 years without the option of a fine.

5. (1) Where a false pretence which constitutes an offence under this Act is contained in a document, it shall be sufficient in a charge of an attempt to commit an offence under this Act to prove that the document was received by the person to whom the false pretence was directed.

(2) Notwithstanding anything to the contrary in any other law, every act or thing done or omitted to be done by a person to facilitate the commission by him of an offence under this Act shall constitute an attempt to commit the offence.

8 (b) A person who attempts to commit or is an accessory to an act or offence under this Act, commits the offence and is liable on conviction to the same punishment as is prescribed for that offence under this Act."
TO BE CONTINUED…

The attempt to commit a crime is an act done with intent to commit a crime and forming part of a series of acts, which would constitute its actual commission if it were not interrupted. The constituent elements of the inchoate crime of an attempt are a physical act by the offender sufficiently proximate to the complete offence and an intention on the part of the offender to commit the complete offence. Acts that are merely preparatory to the commission of the offence are not sufficiently proximate to constitute an offence. See NWANKWO VS F.R.N. (2003) 4 NWLR (PT 809) 1 at 37-38 and JEGEDE VS STATE (2001) 14 NWLR (PT 733) 264.

The evidence adduced so far by the prosecution does not include that of the named victim in this Count, Richard Walter Dennis Jr. No document containing the alleged particulars emanating from the defendant to the said Richard Walter Dennis Jr. and none purportedly received by the said Richard Walter Dennis Jr. was tendered before the Court. No document addressed to the said Richard Walter Dennis Jr. by the defendant was tendered in evidence.

It seems to me that the submission of learned defence counsel, Mr. Onyeke that no case has been made out by the prosecution in the present circumstances to constitute sufficient prima facie case in respect of this Count is well founded, and I so hold.

Count 2 is alleged use of premises for sending document containing false pretences contrary to Section 3 of the Advance Fee Fraud and Other Fraud Related Offences Act 14 of2006.

The particulars are that the defendant permitted his premises to be used for sending documents containing false pretences.

The said Section 3 of the Act provides that:
"'A person who, being the occupier or is concerned in the management of any premises, causes or knowingly permits the premises to be used for any purpose which constitutes an offence under this Act commits an offence and is liable on conviction to imprisonment for a term not more than 15 years and not less than 5 years without the option of a fine."

It is worth reiterating that the specific offence here is that the defendant allegedly permitted his premises to be used for sending document containing false pretences. The evidence placed before the Court by the prosecution witnesses however did not include that any document was sent from the said premises. In fact the prosecution witnesses stated that no internet capability was detected on the computers recovered in the said premises.

There was also no evidence that any document said to contain false pretences emanating from the said defendant's premises was received by anyone.

In light thereof, I cannot but hold therefore that prima facie case was not made out in respect of this Count as well.

Counts 3, 5, 7 and 9 contain allegations of possession of documents containing false pretences contrary to Sections 6, 8 (b) and 1 (3) of the Advance Fee Fraud And Other Fraud Related Offences Act 14 of 2006.

The particulars thereof state that the defendant had certain documents containing false pretences in his possession. Sections 1 (3) and 8 (b) have earlier been set out while Count 1 was being considered. Section 6 provides as follows:
"A person who is in possession of a document containing a false pretence which constitutes an offence under this Act commits an offence of an attempt to commit an offence under this Act if he knows or ought to know, having regard to the circumstances of the case, that the document contains the false pretence."

The offence created is a strict liability one with heavy punishment, and legislations such as this must be narrowly interpreted.

See OKOROAFOR VS THE MISCELLANEOUS OFFENCES TRIBUNAL (1995) 4 NWLR(PT387)59 and JOKANMA VS MOWETE (2001) 6 NWLR (PT 709) 351.

Essential to grounding the offence herein is possession; which must be actual or constructive coupled with knowledge which again maybe actual or constructive depending on the circumstances.

The evidence of the prosecution witnesses is that the defendant is an illiterate who can neither read nor write.

The documents in question here are exhibits P31, P32, P33 and P38 and they were found in the virtual or soft form in a computer admitted by the defendant to be his. The evidence before the Court however is that the said computer was found in the possession of a third party not charged before this Court nor called as witness by the prosecution.

The evidence presented was that the said third party was working on the said computer when the investigators came upon him. The defendant was no where near the said computer but admits ownership thereof,

The offence created here in my humble view is not concerned primarily with ownership of location of the document in question but direct possession of the document thereof.

The documents in this instance were not found in their tangible or hard form on the defendant but located in the soft form in a computer possession of which computer was found on a third party different from the defendant.

Not being literate, the prosecution ought to lead evidence showing actual or constructive knowledge of the existence of the said soft copies of these documents by the defendant.

If a bag belonging to party A was carried by party B and a search thereof discloses prohibited items; proceedings for possession of the found prohibited items can only ordinarily proceed against party B found in possession of the bag in the absence of tangible conclusive evidence of the culpability of party A who owns the bag. Merely asserting that ownership of the said bag is in party A will not suffice, as party B since he had control of the said bag could put those prohibited items in it without the knowledge or awareness of party A who owns the bag. No evidence of actual or constructive knowledge by the defendant of the existence of the soft copies of the documents in question in the computer in which they were found was led by the prosecution and I have no choice than to hold that no case has been made out against him in respect of the said Counts 3, 5, 7 and 9 as well.

The remaining Counts 4, 6, 8 and 10 are that the defendant forged the same documents contained in counts 3, 5, 7 and 9 respectively contrary to Section 467 of the Criminal Code Cap C17, Laws of Lagos State of Nigeria 2003.

Section 467 provides that; "Any person who forges any document, writing, or seal, is guilty of an offence which, unless otherwise stated, is a felony and he is liable if no other punishment is provided, to imprisonment for three years." While sub paragraphs 2 (a) to (q) thereof provide aggravating circumstances which could increase the punishment to imprisonment for fourteen years.

Forgery is defined in section 465 of the Criminal Code as follows:
"A person who makes a false document or writing knowing-it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Lagos State or elsewhere, to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in the State or elsewhere, is said to forge the document or writing."

The above definition has been held by the Supreme Court to include not only a document, which tells a lie, but also one, which tells a lie about itself, and that it further includes documents made with intent to defraud. See BABALOLA VS STATE (1989) 4 NWLR (PT 115) 264 per NNAEMEKA-AGU JSC at 277.

The elements of the offence of forgery are:
1. That there is a document in writing.
2. That the document or writing is forged.
3. That the forgery is by the accused person.
4. That the accused person knows that the document or writing is false.
5. That the accused intends that the forged document be acted upon to the prejudice of the victim in the belief that it is genuine. See ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 at 592.

A document is said to be forged if the whole or part of it is made by a person with all falsity and knowledge of the falsity and with intention that it may be used or acted upon as genuine to the prejudice of the victim. See OSONDU VS FRN (2000) 12 NWLR (PT 682) 483 at 504.

The prosecution led no evidence of actual forgery of the said documents by the defendant said by its witnesses to be an illiterate.

It also failed to lead evidence that the defendant procured a person to forge the said documents.

It is essential that the evidence adduced by the prosecution goes beyond merely stating that the documents in question were found in a computer belonging to the defendant when the said computer was found in possession of a third party working thereon. The prosecution must show that the defendant knew about the existence of the said documents and either forged it or procured someone to do it.

Mere acknowledgement by a defendant stated to be an illiterate, of ownership of the computer from which the documents alleged to be forged were printed cannot be conclusive and would fall short of the requisite legal ingredients.

In the circumstances thereof I also hold that prima facie case was not made out in respect of Counts 4, 6, 8 and 10 as well.

In totality thereof, I hold that the prosecution did not make out a prima facie case against the defendant in respect of any of the Counts alleged against him herein. I uphold the no case submission and I hereby discharge and acquit the defendant in respect of each of Counts 1 to 10 herein,




Hon. Justice J.O.K Oyewole

Appearances:

Mr. K.M.O. Olusesi with him Mrs. A. Abdulahi for the prosecution.

Mr. E.D. Onyeke with him Mr. Ahamisi and Miss M.O. Adeisa for the defendant.

(30-3-09) THE STATE V.AZUIKE & 2 ORS

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT HIGH COURT 34 CRIMINAL DIVISION
BEFORE HON. JUSTICE J.O.K. OYEWOLE
TODAY THURSDAY THE 5TH DAY OF MARCH, 2009

SUITNOID/52C/2006

BETWEEN

THE STATE COMPLAINANT

AND

1. SUNDAY AZUIKE
2. SATURDAY OKOEGUALE DEFENDANTS
3. ANDREW ONYEMECHI
JUDGMENT

By the amended charge dated 16th January, 2007 the 3 defendants were arraigned before this court on 3 counts to which they all pleaded not guilty. The entire counts are reproduced in full as follows:

STATEMENT OF OFFENCE 1ST COUNT
Conspiracy contrary to Section 403A of the Criminal Code Cap C17 Vol. 2 Laws of Lagos State 2003.

PARTICULARS OF OFFENCE
Sunday Azuike (m), Saturday Okoeguale (m) and Andrew Onyemechi (m) on or about the 11th day of January 2004 at Ipaja Abesan Road, Ipaja Lagos in the Ikeja Judicial Division conspired to commit a felony to wit; robbery.

STATEMENT OF OFFENCE 2ND COUNT
Attempted Robbery contrary to Section 403 (1) of the Criminal Code Cap C17 Vol.2
Laws of Lagos State 2003.

PARTICULARS OF OFFENCE
Sunday Azuike (m), Saturday Okoeguate (m) and Andrew Onyemechi (m) on or about the 11th day of January 2004 at Ipaja Abesan Road, Ipaja Lagos in the Ikeja Judicial Division while armed with dangerous weapons to wit: a gun, attempted to commit robbery.
STATEMENT OF OFFENCE 3RD COUNT
Illegal possession of firearms with intent to commit robbery contrary to Section 403 (3) of the Criminal Code Cap C17 Vol.2 Laws of Lagos State 2003.

PARTICULARS OF OFFENCE
Sunday Azuike (m), Saturday Okoeguale (m) and Andrew Onyemechi (m) on or about the 11th day of January 2004 at Ipaja Abesan Road, Ipaja Lagos in the Ikeja Judicial Division were found in a public place in possession of firearms with intent to commit robbery.

At the trial two witnesses testified for the prosecution while each of the defendants testified for his defence from the witness box.

PW1 was Police Sgt Tirimisiyu Abass of the Lagos State Anti Robbery Squad Annex, Ikeja.

His evidence in chief was that he was in the same unit in January 2004 when as a member of a special surveillance team around Gowon Estate, Ipaja some vigilantes in the area drew their attention to a certain bus containing some men. They stopped and searched the said bus and found 6 men and a driver therein. They also found a locally made pistol and 6 live cartridges.

He identified the 3 defendants as being among the men found in the said bus stating that 6 of them were arrested while one of them escaped. He also identified the said locally made pistol and 6 cartridges which were admitted without objection as exhibits PI and P2A to P2F respectively.

He obtained statements from each of the defendants and they explained to him that the person who escaped was the one leading them to rob his boss who supposedly cheated him. They however did not know the name of the said boss or his residence.
In the course of the investigation 3 additional persons were arrested but two of the suspects died in custody while some were released due to lower level of involvement while the present defendants were among the remaining ones charged to Court.

He stated that the original case file forwarded to the Magistrate Court got missing and identified the certified true copies of the extra judicial statements of the defendants. That of the 1st defendant was admitted as exhibit P3 while that of the 2nd defendant was admitted as exhibit P4.

It was submitted for the 3rd defendant that he refutes ownership of the statement sought to be tendered as his extra judicial statement and it was admitted as exhibit P5 with the issues raised reserved for evaluation at the end of the trial.

Under cross-examination from Mr. Bale for the 1st and 2nd defendants, he stated that he recorded exhibit P3 for the 1st defendant at his instruction and subsequently took the 1st defendant and the said statement to his superior officer for endorsement.
He similarly recorded the extra judicial statement of the 2nd defendant.
He stated that the two persons who died in police custody among those arrested for the case died of natural illnesses and that while the vehicle in which the defendants and their colleagues were arrested was impounded, the owner escaped at the time of arrest and could not be traced.

He reiterated that two of the initially arrested suspects were released by the police for lesser involvement and explained the circumstances thereof.

He rejected the suggestion that the defendants were tortured while in police custody and stated that they were pointed out by the local vigilante group in the area where they were arrested.

Under further cross-examination from Mr. Uhie for the 3rd defendant, he gave his service experience but could not remember the other members of his patrol team the night the defendants were arrested although he recalled that the arrest took place around 7 pm.
He also could not recall the registration number of the vehicle in which the defendants were arrested as the one found on it was found to be fake.

He stated that he recorded the extra judicial statement of the 3r defendant for him because he could not read nor write and denied coercing or forcing him to sign the said statement. He further denied that the death of the two suspects who died in police custody resulted from gun shot injuries.

He stated that the recovered gun was found on the 3rd defendant but when the name of one of the dead suspects was put to him he stated that he was not sure if he was the one in whose possession the said gun was found but insisted that it was found in the vehicle in which all the defendants rode while the driver on sighting the police escaped. He denied that the 3rd defendant was charged to court for his inability to bribe his way out of the case.

He was not re-examined.

PW2 was Mr. Gaji Abana a Superintendent of Police attached to the Special Anti Robbery Squad of the SCID, Ikeja Lagos State.

His evidence in chief was that PW1 brought the defendants to him together with their extra judicial statements now in evidence and after reading it to them to confirm authorship he endorsed the said statements.

He identified exhibits P3, P4 and P5 as the said statements and stated that the gun found in possession of the defendants was brought to him as well.

Under cross-examination from Mr. Banu for the 1st and 2nd defendants, he stated that he would not know whether the 1st and 2nd defendants were literate.

He also did not know the location of the vehicle in which the defendants were arrested neither did he know the location of its driver.

He did not know about those who died in police custody neither did he know about those released by the police.
Under further cross-examination from Mr. Uhie for the 3rd defendant he stated that the defendants were brought before him in 2004 but PW1 never told him when exactly they made their said statements.

He was aware that PW1 recorded the said statements for the defendants but never inquired as to why that happened.

He reiterated that he read the statements in question to the defendants in English Language which they confirmed understanding before they signed.

He was shown exhibits P3, P4 and P5 and he identified his endorsements and signatures as well as the dates thereon.

On being re-examined he stated once again that the said statements were brought to him on 11th January, 2004.

With his evidence the prosecution closed its case.

The 1st and 2nd defendants entered into their defence immediately while the 3rd defendant first made a no case submission which was overruled before he also entered the witness box to testify in his defence.

DW1 was the 1st defendant. He used to be a4rader prior to his arrest for this case. His evidence in chief was that on the day in question he was in a commercial bus on the way to the lyana Ipaja market when some policemen forced the bus he was in to stop and all the passengers asked to come down and lie face down. He complied and together with the other passengers they were taken to the premises of the Special Anti Robbery Squad.

After about two weeks in police custody, PW1 brought a note for him to sign but he refused upon which he was subjected to severe torture at the end of which he still refused.

Two men were then taken out in his presence and shot to death, he was threatened with a similar fate upon which he then signed the document.

He could read and write and never knew the 2" and 3rd defendants prior to their joint arrest in the bus.

He was never taken before PW2 and also denied being found with any gun or ammunition but he had the sum of N25,000.00 with him which was discovered on him by the policemen who searched him.

He was not cross-examined for the 2nd defendant but under cross-examination for the 3rd defendant he stated that he never knew the 3r defendant prior to his arrest and he never saw any arms or ammunition with the y defendant or anyone in the said bus when the were arrested.

Under cross-examination by the learned prosecutor Mr. Adamson he stated that he was on his way to Ipaja Market to buy foodstuffs when he was arrested as he trades in foodstuffs at the Ikotun Egbe Market.
Eight of them were arrested together and he described the location of his shop at Ikotun Egbe. He lived in Port Harcourt before coming to Lagos and learnt some trade there.
He attended a Secondary School at Owerri, and insisted that he never knew any of the people arrested with him prior to the day of their arrest.

He identified his signature on exhibit P3 but stated that he was coerced into signing it after over two weeks in detention contrary to the date shown on the said document.

He insisted that he contributed nothing to the contents of exhibit P3 and stated that the two detainees supposedly killed by the police were among those arrested with him in the said bus.

Since he came to Lagos, he had not travelled out of the State.
He was not re-examined.

DW2 was the 2nd defendant. Prior to his arrest he was a businessman dealing in clothes. His evidence in chief was that on the fateful day, he was in a commercial bus on his way to see his younger brother when their bus was stopped by policemen who searched the occupants and arrested them. The sum of N7,000.00 he had on him was taken away and he was clamped into detention for over one year before being charged to court from where they were remanded in prison.
While in police custody, he was forced at the point of death to sign a statement brought to him.
He identified exhibit P4 as the statement he was forced to sign and stated that he could read and write.
He had never known the other defendants prior to their Joint arrest and no weapon was found on him when he was arrested neither was he ever taken before PW2.

He was not cross-examined for the 1st defendant but under cross-examination for the 3rd defendant he stated that he never met the 3rd defendant prior to his arrest and denied that any gun or ammunition was recovered from the 3rd defendant or anyone arrested with him.

Under further cross-examination from the learned lead prosecutor, Mr. Osoala, he gave details of his residence prior to his arrest and gave details of the Secondary School he attended before dropping out in SS1 to learn some handiwork.
He recounted his movement leading to his arrest but due to the beatings he received at the point of arrest he could not remember the number of people arrested with him.

He denied that any gun or ammunition was found in the bus when they were arrested and also denied knowing the 3r defendant prior to their arrest.

He was taken to his house for search after his arrest but nothing incriminating was found therein.

He gave his present age as 30 years and denied ever signing or even seeing exhibit P4 before.
He was not re-examined.

DW3 was the 3rd defendant. He was a trader prior to his arrest selling various alcoholic drinks at Oyingbo market.
On the day he was arrested he left his church at Ikotun Egbe and boarded a bus to lya Ipaja. While on the way, they were stopped by some policemen who ordered all the occupants of the bus to disembark and after searching and beating them, took them to their station where they were all locked up.

They were later interrogated but when he denied being an armed robber and wrote do what actually happened, the said statement was torn and another one written by the investigator who directed him to sign. He refused and was subjected to severe beating until he signed it.
His co defendants are among those arrested with him and the 1st defendant was the first to cave in and sign the prepared statement for him.
He identified exhibit P5 as the statement he was forced to sign to save his life but denied writing it. The said statement was never read or interpreted to him before he signed it.
He denied ever meeting the co defendants or any of those arrested with him prior to his arrest.

Under cross-examination for the 1st and 2nd defendants, he denied ever knowing them prior to his arrest and stated that no weapon was found on him by the police.

Under cross-examination from Mr. Adamson for the prosecution, he stated that he is married with four children and lived at Oyingbo market for over a year selling alcoholic drinks.

He explained the program that took him to his church on a Saturday and gave his wife’s names as well as the names of his kinsmen he knew at Oyingbo market. His education stopped at primary school after which he went into welding before eventually moving into his present trade and later got introduced to his said church He reiterated that he never met the co defendants before his arrest.

He was not re-examined and with his evidence the defence was closed and counsel proceeded to their final addresses.

First to address the court was Mr. Banu on behalf of the 1st and 2nd defendants. He gave some background facts which he wanted the court to take cognizance of and submitted that the alleged confessional statements of the 1st and 2nd defendants could: be said to be voluntarily.

He further submitted that the testimony ofPW2 is inconsistent and that there is no independent evidence with which the allegedly confessional statements could be validated.

He then outlined the principles to be considered in testing the veracity of confessional statements and referred to ONOCHIE VS THE REPUBLIC (1966) NMLR 307.

R VS SKYES (1913) 8 CAR 233 at 236,
R VS OBIASO (1962) 1 ANLR 65 and
AKPAN VS STATE (1992) 6 NWLR (PT248) 439 at 460.


He urged the court to hold that the prosecution has failed to prove its case beyond reasonable doubt and consequently discharge and acquit the 1st and 2nd defendants.

For the 3rd defendants, Mr. Uhie reviewed the charge and evidence adduced at the trial and submitted the following issues for determination as follows:

1. Whether the prosecution has discharged the burden to prove their case beyond
reasonable doubt.

2. Whether from the available evidence the court could convict the 3rd accused as
charged.

Arguing the two issues together, he submitted that the burden of proof in criminal cases lies on the prosecution which burden has not been discharged in the present case. He referred to Section 138 (1) of the Evidence Act and AIGBADION VS STATE (2000) SC (PT 1) at 16.

On count 1, he submitted that merely charging the defendants together will not suffice in the absence of proof of common intention.

On count 2, he submitted that there was no evidence-that 3rd defendant was armed, that he attacked someone and that there is a probable victim and that the evidence adduced would only amount to suspicion which cannot ground conviction. He referred to STATE VS OGUNBUNJO (2001) 1 SC 90 and AIGBADION VS STATE (supra).

Moving to count 3, Mr. Uhie submitted that there was no evidence to indicate that exhibit PI and P2 were found on the 3rd defendant or any of the defendants who were not stated to own die bus in which they were arrested. He referred to Section 135 (I) of the Evidence Act and AYUB-KHAN VS STATE (1991) 2 NWLR (PT 172) 127 at 133.
TO BE CONTINUED…

CONTINUED FROM LAST WEEK…
He submitted that exhibit P5 would not pass the tests of truthfulness and should not be accorded any evidential weight especially when the inconsistent evidence ofPW2 in relation thereto is considered. He referred to IHUEBEKA VS STATE (2000) 4 SC (PT 1) 203 at 218, NWAEBONYI VS STATE (1994) 5 NWLR (PT 343) 138 and ASANYA VS STATE (1991) 3 NWLR (PT 180) 422 at 433.
He urged the court to discharge and acquit the 3rd defendant on all the counts. For the prosecution, Mr. Osoala reviewed the legal ingredients of the offences alleged against the defendants and submitted that onus to prove beyond reasonable doubt is on the prosecution.

He referred to Section 138 (3) of the Evidence Act and DIBIE VS STATE (2007) 9 NWLR (PT 1038) 56. Specifically on count 1 of conspiracy, he outlined the legal ingredients thereof and referred to AITUMA VS STATE (2006) 10 NWLR (PT 989) 468, MAJEKODUNMI VS THE QUEEN (1952) 14 WACA 64, OYEDIRAN VS REPUBLIC (1967) NMLR 122. HARUNA VS STATE (1972) ALL NLR 738 and ERIM VS STATE (1994) 5 NWLR (PT 346) 525.

He referred to the evidence of PWl which according to him was uncontroverted and sufficiently proves this count.
He referred to Section 403 (2) (a) of the Criminal Code Law of Lagos State

On count 2 of attempt to commit robbery, he once again outlined the legal ingredients of the said offence and referred to DPP VS STONE HOUSE (1997) 2 ALL ER 909 at 917, SANNI VS STATE (1993) 4 NWLR (PT 285) 122, IBRAHIM VS STATE (1995) 3 NWLR (PT 381) 37 and ARCHBOLD 37™ Edition paragraph 4104.

He submitted that exhibits P3, P4 and P5 when taken with exhibits PI and P2 conclusively establish the guilt of the defendants and that free and voluntary confessions, are sufficient proof of guilt.

He referred to Section 27 of the Evidence Act, AKPAN VS STATE (2001) 15 NWLR (PT 737) 745, ONYEJEKWE VS STATE (1994) 3 NWLR (PT 230) 444 and NWAEBONYI VS STATE (1994) 5 NWLR (PT 343) 138.
He agreed with the learned defence counsel that the confessional statements should be subjected to validity tests and submitted that exhibits PI and P2 provide the necessary corroboration to validate them.
He referred to OJOGELE VS STATE (1998) 1 NWLR (PT 71) 144 and NWACHUKWU VS STATE (2002) 7 SC (PT 1) 136 at 261.

He submitted further that the confessional statements were tendered without objection thereby constituting a waiver to any subsequent objection.

He urged the court to hold that the discrepancy in the testimony of PW2 was inconsequential.

He further urged the court to hold that the alleged offences have been proved beyond reasonable doubt and as such convict each of the defendants as charged.

I have duly considered the case presented by the prosecution, the defence put forward by the defendants and the final addresses of counsel.

The sole issue for determination herein is whether the prosecution has proved each of the 3 counts of offences alleged against the defendants before this court beyond reasonable doubt as to justify their being found guilty in respect thereof and consequently convicted. In every criminal matter, the defendant is presumed innocent and onus of proof of the criminal allegation is on the prosecution, which onus is discharged on the establishment of the essential elements of the alleged offence. See section 36 (5) of the Constitution, 'Section 138 of the Evidence Act, ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 at 591 per TOBI JCA (as he then was), and NWANKWO VS STATE (2003) 4 NWLR (PT 809) 1 at 35 per EKPE JCA.

To justify conviction, the required standard of proof is proof beyond reasonable doubt and this level of proof is attained when every ingredient, which constitutes the alleged offence, has been proved.
See AYUB-KHAN VS STATE (1991) 1 NWLR (PT 172) 127, ADIGUN VS A.G. OYO STATE (1987) 1 NWLR (PT 53) 678 and EDE VS FRN (2001) 1 NWLR (PT 695) 502 at 515.

It must be appreciated that proof beyond reasonable doubt is not proof beyond any shadow of doubt. The degree of proof that would amount to reasonable doubt need not reach certainty, but it will carry a high degree of probability.

And for the defendant to be entitled to the benefit of doubt, the doubt must be a genuine and reasonable one arising from some evidence before the court. See NWANKWO VS FRN (supra) at 35-36.

The 3 counts alleged against the defendants are as follows:
1. Conspiracy to commit robbery contrary to Section 403A of the Criminal Code Cap C17, Laws of Lagos State 2003. The said Section provides that:

403 (A) "Any person who conspires with any person to commit an offence under section 402 of this Law whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be punished accordingly".

2. Attempted armed robbery contrary to Section 403 (1) of the Criminal Code Cap C17, Laws of Lagos State 2003. The said Section provides that:

403 (1) "Any person, who with intent to steal anything, assaults any other person and at or immediately after the time of assault, use or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction be sentenced to imprisonment for not less than fourteen years but not more than twenty years".

3. Illegal possession of firearms with intent to commit robbery contrary to Section 403 (3) of the Criminal Code Cap C17, Laws of Lagos State 2003.
The said Section provides that:
403 (3) "Any person found in any public place in possession of any firearms whether real or imitation and in circumstances reasonably indicating that the possession of the firearms is with intent to the immediate or eventual commission by that person or any other person of any offence under section 402 above shall upon conviction be sentenced to imprisonment for not less than fourteen years not more than twenty years".

The facts grounding the 3 counts against the defendants are the same and it may therefore be worthwhile to begin by evaluating the entire evidence adduced.

The prosecution called two witnesses both police officers, one of them claimed to have been among those who arrested the defendants and he it was who obtained their extra judicial statements exhibits P3, P4 and P5 from which they all resiled at the trial. He produced exhibits PI and P2A-P2F as having been recovered from the possession of the defendants,

PW2 was the superior police officer who supposedly endorsed the said extra Judicial, confessions after ascertaining the voluntariness thereof but contradicted himself on the dates on which they were said to have been brought to him.

All the defendants denied having been brought before him, his contradictory assertions on the dates they were brought did not assist his veracity.

It is significant that only PWl could be found out of those who supposedly arrested the defendants on the fateful day and none of the vigilante group who supposedly drew the attention of his team to the bus said to have conveyed the defendants was produced. To worsen the situation, PWl could not recall the names of any of his colleagues on the same patrol beat with him when the defendants were supposedly arrested.

Furthermore, the bus in which the defendants were said to have been arrested was never produced at trial despite the crucial role it played. PWl claimed the said bus was blue color while all the defendants claimed they were arrested in a commercial bus. It is a notorious fact that commercial buses in Lagos are never painted blue.
The presence of this bus would have resolved the issue and serve as vital corroboration for the case presented by the prosecution on whom lies the onus of proof.

The prosecution also tendered exhibits PI and P2A to P2F said to be the locally made gun and 6 rounds of live ammunition said to have been found on the defendants at the time of arrest.

None of the defendants admitted to these exhibits being found in their possession. The evidence of PWl on this issue became shaky when he veered from his earlier assertion that they were recovered from the 3rd defendant and became unsure.

He could not recall any member of his team who participated in the arrest and recovery and none of them was called as witness.

PW2 testified that when the defendants were brought before him for the endorsement of their supposed confessions only exhibit PI was brought. He knew nothing about the arrest of the defendants and was emphatic that only the gun, exhibit PI was brought leaving out the cartridges exhibits P2A-P2F despite the fact that the confessions he was to endorse covered the said cartridges.


As mentioned earlier, the prosecution tendered exhibits P3, P4 and P5 as the extra judicial confessions of the defendants from which the defendants all resiled at trial giving various accounts that would have justified objections to the admissibility of the said statements at the stage when they were sought to be tendered.
The issue of voluntariness would have been resolved in a trial within trial but this opportunity was waived by the failure of defence counsel to object on that ground, leading to the said documents being admitted without objection.

The retraction and setting up of contrary stories by the defendants necessitates that the court would only act on the retracted confessional statements on being satisfied after testing the veracity thereof by considering whether there is anything outside the confessions to show that they are true, whether the statements are corroborated, no matter how slightly, whether the facts contained therein, so far as can be tested, are true, whether the defendants had the opportunity of committing the offence, whether the confession of the defendants was possible, and whether the confessions were consistent with other facts, which have been ascertained and proved.
See ALARAPE VS STATE (2001)5 NWLR (PT 705) 79,
EGBOGHOME VS. STATE (1993) 7 NWLR (PT 306) 383
IBINA VS. STATE (1989) 5 NWLR (PT 120) 238 at 248 and
NWOSU VS. STATE (1998) 8 NWLR (PT 562) 433 at 442.

A defendant who wants to impeach his earlier extra judicial statement has to establish that his earlier confessional statement cannot be true or correct by showing any of the following events or instances;

(a) That he was not correctly recorded or
(b) That he in fact did not make the statement or
(c) That he was unsettled in mind at the time he made the statement or
(d) That he was induced to make the statement.
See ONWUMERE VS STATE (1991) 4 NWLR (PT 186) 428 at 440.

In the present case, all the defendants gave evidence from the witness box and tried to impeach the confessional statements credited to each of them. They denied all the material admissions contained in the said statements and denied having anything to do with the alleged offences.

PW2 gave evidence that the defendants were brought before him and on being satisfied that they voluntarily made the said statements endorsed each of them.

In the course of cross-examination, he contradicted himself on the dates the endorsements supposedly took place giving a different date from that shown on the face of the said documents. Re-examined he maintained the said contradiction.

This contradiction substantially weakened the corroborative quality of his testimony for the veracity of the statements in question.

When related with the earlier defects pointed out in the prosecution's case, it is evident that doubts have been created which must only be resolved in favor of the defendants and cannot permit the accreditation of the said exhibits P3, P4 and P5. See NWANKWO VS FRN (supra).

Having reached this conclusion, and in total consideration of the case presented by the prosecution, I must hold that the prosecution has failed to discharge the onus on it to prove its case beyond reasonable doubt against the defendants.

In the circumstances therefore, I find each of the defendants not guilty on each of the 3 counts alleged against them before this Court and I hereby discharge and acquit each of them on each of the said 3 counts.




Appearance;

Mr. O.G. Osoala, with him Mrs A. Adeyioka, Mr. O.A. Adamson, Mrs. I.I. Isiyola, Miss O.O. Taiwo and Mrs. R. I. Salami for the State.

Mr. A.J. Banu for the 1st and 2nd Defendants.
Mr. E. Uhie for the 3rd Defendant.