AGABA v. FEDERAL REPUBLIC OF NIGERIA (2018)

In The Court of Appeal of Nigeria

On Friday, the 1st day of June, 2018

CA/L/1382C/2017

Before Their Lordships

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria


Between

CAPTAIN EZEKIEL AGABA –Appellant

AND

FEDERAL REPUBLIC OF NIGERIA –Respondent

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YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is predicated upon the ruling of the Federal High Court, sitting in Lagos (the Court below) delivered on the 16th day of October, 2017 by HON. JUSTICE I.N. BUBA wherein the application of a No Case application was dismissed and the Appellant was ordered to enter his defence to the 22 counts filed against him by the Respondent. Aggrieved, the Appellant filed a Notice of Appeal dated 18/10/17 and filed on the same day setting out 5 grounds of Appeal.The Appellant was accused of several offences of conspiracy, conversion and inducement of the Federal Government, a charge denied by the Appellant. The Respondent called several witnesses and tendered a host of documents in proof of the charge. The Appellant after the case for the Prosecution made an application contending that no case was made out against the Appellant. The Court below found otherwise thus this appeal.
The Appellants brief dated 13th December, 2017 filed on the same date but deemed on 20/3/18 distilled 2 issues for determination as follows:
i. Whether the totality of evidence adduced at the trial, a prima facie case could be said to have been established against the Appellant, with respect to the allegations contained in the charge before the Court, to warrant calling upon him to enter a defence to the allegations?
ii. Whether from the totality of the evidence adduced at the trial, the testimonies of the prosecution witnesses was not so severely discredited in relation to the allegations against the appellant, such that the decision of the trial Court calling upon the Appellant to enter his defence did not constitute a violation of his right to presumption of innocence?

The Appellant filed a reply brief (Amended) dated 22/2/18 filed same day.
The Respondent on its part formulated a sole issue as follows:
Whether the lower Court was wrong in holding that the Respondent (Prosecution) has made out a prima facie case against the Appellant to warrant its being called upon to enter his defence.
I have considered the Notice of appeal, the record of appeal and the briefs of the respective counsel in this appeal and I am inclined to adopt the sole issue presented by the Respondent for determination here.
The sole question is whether there was a prima facie case to warrant calling on the Appellant to put in his defence or whether there was none, in which case the no case submission should succeed. The two issues donated by the Appellant herein are all encapsulated in the single issue formulated by the Respondent. In a No case submission, the primary issue is narrow and it is simply to determine whether there was a prima facie case made out against the Appellant to warrant his being asked to enter his defence. The Court cannot determine credibility of the witnesses nor evaluated the quality of evidence at this stage. Consequently, all other issues outside this narrow view shall be discountenanced by the Court.
SOLE ISSUE
Whether the lower Court was wrong in holding that the Respondent (Prosecution) has made out a prima facie case against the Appellant to warrant its being called upon to enter his defence.
The Appellant under issue one stated the position of the law with respect to a no case submission, submitted that once the evidence of the prosecution cannot sustain conviction, then no prima facie case has been established and

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it will be wrong to call upon the accused to enter his defence, referred to AGBO V STATE (2013) ALL FWLR (PT 689) 1094, UKET V FRN (2008) ALL FWLR (PT 411) 923, TONGO V COP (2007) 12 NWLR (PT 1049) 525, AJIDAGBA V IGP (1958) 3 FSC 5. In this case, the Appellant submitted that a prima facie case had not been made out against the Appellant, particularly in relation to the elements of the offences for which the Appellant was tried at the lower Court. He further submitted that in a criminal trial, the decision of the Court has to be firm, definite and certain but the decision of the trial judge in this case is shrouded in uncertainty, referred to ABU V STATE (2008) ALL FWLR (PT 447) 126, SUBERU V STATE (2010) ALL FWLR (PT 520) 1263. The Appellant further submitted that a consideration of the evidence along with the ingredients of the offences as stated in S. 15 (1) (2) of the Money Laundering (Prohibition) (Amendment) Act brought against him, shows clearly that there was no basis for the lower Court to overrule the No case submission, he referred to THOMAS ISEGHOHI V FRN (Unreported) in Appeal No. CA/A/742C/2014, ONAGORUWA V STATE (1993) 7 NWLR (PT 303) 49 @ 95.
According to him, the testimonies of the witnesses shows that they are not properly abreast of the facts upon which they came to testify nor was it proved that the funds paid to third party companies was of unlawful origin or was used for the benefit of the Appellant. The Appellant also contended that the offence of conversion is not provided for in the Money Laundering Act, same being a form of the offence of stealing which is outside the jurisdictional competence of the Federal High Court. The Appellant submitted that the testimonies of the witnesses could at best be said to have established reasonable suspicion but does not establish the commission of the offence, referred to ODIDO V STATE (1995) 1 NWLR (PT 369) 88. Finally, the Appellant submitted the decision to overrule the No case submission without the prosecution establishing the allegations made against him, amounted to a breach of the Appellants right of presumption of innocence, cited SUBERU V STATE(supra), OKORO V STATE (1988) 3 NSCC 275. He further relied on the following cases in proof of his submissions; IMOH V ONANUGA & ORS (2013) LPELR  20682 (CA), IKE & ANOR V INEC (2010) LPELR  4293 (CA).

Continuing submission as issue two the Appellant summarized the testimonies of the prosecution witnesses and submitted that their testimonies were severely discredited that it will be impossible for any Court to safely rely on those testimonies to convict the Appellant. He argued that from the responses of the questions put to the witnesses during cross examination, it is clear that none of the witnesses could substantiate the allegations brought against the Appellant. Furthermore that the alleged purchase of US Dollars using the funds belonging to the ISPS Committee does not in itself constitute credible evidence of money laundering. Finally, Appellant argued that suspicion no matter how strong does not take the place of legal proof, citedABIEKE V STATE (1975) 9  11 SC 61 and urged the Court to uphold the appeal.
The Respondents Counsel in submission on its sole issue contended that Section 357 of the Administration of Criminal Justice Act, 2015 confers the right on the Appellant to raise a no case submission at the close of the examination of witnesses for the prosecution. He contended further that Section 358(1) of the Act requires that the prosecution must have sufficiently made out a prima facie case against the Appellant before he can enter a defence. Counsel cited the cases of AJIDAGBA v IGP (1958) SCNLR 60 at 62; EKWENUGO v FRN (2008) 15 NWLR (PT 1111) at 638  639; In DABOH v STATE (1977) 5 SC 197 at 315; OLANIYAN v STATE (1987) 1 NWLR (PT 48) 156; STATE v EMEDO (2001) 12 NWLR (PT 726) 131; ADEYEMI v STATE (1991) 6 NWLR (PT 195) 1 at 35 SC; AGBO & ORS v STATE (2013) LPELR 20388 SC on what is meant by a prima facie case. Respondent Counsel then contended that considering the testimony of PW1-PW12 and exhibits P1-P77, a prima facie case has been made out which should require the Appellant to make some explanation in his defence in line with S. 358 of the ACJA 2015. He also noted that the evidence of PW1-P12 was never discredited or contradicted by the Appellant during cross examination neither was the credibility of the witnesses shaken.

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On the meaning of conspiracy, the Respondent Counsel referred to the cases of OKEKE v STATE (1999) 2 NWLR (PT 590) 265; NWOSU v STATE (2004) 15 NWLR (PT 877) 466; YAKUBU v STATE (2011) LPELR 19749 (CA); GBADAMOSI v STATE (1992) 6 NWLR (PT 196) 182; NWANKWO v FRN (2003) 4 NWLR (PT 809) 1 at 37 and submitted that the prosecution has established the essential ingredients of the offence of conspiracy against the Appellant and others and therefore urged this Court to uphold the findings of the lower Court.
Respondents Counsel further submitted that the evidence established a prima facie case that the Defendants converted proceeds of unlawful act to wit: stealing, that the offences alleged against the Appellant are offences contrary to the Money Laundering (Prohibition) (Amendment) Act, 2012 and that the ruling of the trial judge dismissing the no case submission is in the interest of justice and not perverse. He argued that there is evidence showing that the Defendant participated fully in the commission of the alleged offence and all persons who are participes criminis whether principal or accessories are guilty of the offence, referred to UKPE V THE STATE (2001) WRN 84 @ 113, AGWUNA V AG FEDERATION (1995) 5 NWLR (PT 396) 418. He further argued that money laundering can take different forms and the facts reveal that the Appellant and his cronies used various companies as a conduit pipe to launder funds out of NIMASA. He argued that the predicate offences as regards the funds laundered are the offences of criminal conversion or stealing as prescribed under Sections 383  390 of the Criminal Code Act, NDUKWE V LPDC (2007)5 NWLR (PT 1023) 81, KALU V FRN (supra). He argued that from the evidence of PW1-12 and the exhibits tendered, the prosecution has proved the offence of conversion of proceeds of unlawful act to warrant an explanation from him.
On the count of obtaining by false pretence, Respondent Counsel while stating the position of the law submitted that the evidence on record shows that the Appellant and his cronies knew of the falsity of the pretence to the President by their active participation in the fraudulent conversion of the funds initially approved by the President for the implementation of the ISPS code in Nigeria. He submitted that the contention of the Appellant that the ruling of the lower Court is shrouded in uncertainty is misconceived because the trial judge cannot at this stage venture into the realm of evaluating evidence and ascribing probative value, referred to ADAMA V STATE (2017) LPELR  42266 (SC). He therefore urged the Court to dismiss the appeal and call on the Appellant to enter his defence.
In reply, the Appellant submitted that the Respondent failed to respond to its contentions that the Prosecution failed to adduce any evidence in support of the elements of the offence. He further submitted that the Appellant was not charged with the offence of stealing, an offence under the criminal code which the Federal High Court does not have jurisdiction to entertain, referred to WAGBATSOMA V FRN (2015) LPELR 24649 (CA).
RESOLUTION
The crux of this appeal is simply whether the Respondent made out a prima facie case against the Appellant to warrant asking him to enter his defence. The Appellant made a no case submission application before the trial Court which was dismissed thus this appeal. What is a no case submission under our criminal jurisprudence? The phrase No case submission was defined by the Supreme Court in several cases. One of such cases is AJIBOYE V THE STATE (1995) 9 SCNJ 242 also reported in (1998) 1 All Criminal Law Reports 355 at 363.

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The apex Court defined it as follows:-
The meaning of No case submission is that there is no case for an accused person 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 for the witnesses in issue at this stage.
The Court went further to set the circumstances under which a no case submission can be made.The Court gave 2 circumstances and they are:-
1. When there has been no evidence to prove an essential element in the alleged offence;
2. 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.

The Court of Appeal in the old case of ONAGORUWA VS THE STATE (1988) 1 ALL CRIMINAL LAW REPORTS 435 at 441 described what the term connotes and what it also calls into question or determination. It held thus:
No case submission means what it says but it is that from the evidence adduced by the prosecution, the accused has no case to answer and should not  therefore be called to defend himself. By a no case submission the accused submits that the prosecution has not made a prima facie case against him that he should not be made to face the ordeal of defending himself.
The term prima facie was also considered in the case of UBANATU V C. O. P (2001) 2 ALL CLR 312 at 317 and the Court held thus:
The evidence establishing a prima facie case is not to be such as would justify a conviction. It only means that the evidence has covered the essential elements of the alleged offence and if it remains uncontradicted (and is not thoroughly discredited in cross examination) a reasonable tribunal may justifiably convict on it; and therefore some explanation is required from the accused person.
The term also attracted judicial attention in the case of ABACHA VS THE STATE (2002) 11 NWLR (PT 779) 439 at 486 as follows:

When there is ground for proceeding and evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused. But prima facie case is not the same as proof which comes later when the Court has to find whether the accused person is guilty or not guilty. Thus if the facts in a deposition whether an oath in preliminary investigation or not an oath in mere statement attached to an information do not disclose a prima facie case the indictment must be quashed.
A prima facie case is therefore an allegation supported by evidence which has taken it outside the realm of suspicion, speculation and such evidence must cover all the elements of the offence and not just a few of them. The quality of evidence required at this level is not the type that is strong enough to convict but legal evidence. It is that evidence slight enough to support and cover all elements of the charge. What it presupposes is that there is evidence to support not necessarily to prove beyond reasonable doubt the ingredients of the offence. It is the evidence on all elements that gives the Court the power to go deeper into the determination of guilt of the accused in the criminal allegation. Such evidence might fail to prove the offence after it goes through evaluation and when the credibility of the witnesses is later assessed by the Court.
The Supreme Court in the case of EMEDO V THE STATE (2002) 7 SCNJ 221 at 225 held that the Court at the stage of a No case Submission like this in hand is not to evaluate the evidence as what is required is minimal evidence to establish a prima facie case against the accused. The Court at this stage is not expected to consider the credibility of the witnesses nor evaluate the evidence. The Court is expected to look at the evidence as a single flowing story. The Court cannot consider the evidence in bits and pieces in order to ascribe probative value to it because this stage is not to find the accused guilty or not guilty.

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Superior Courts just as trial Courts like the one below have to give a brief ruling because its duty is simply to consider whether the evidence before the Court has established a prima facie case to warrant calling on the accused person to enter his defence. What the Court should look out for is the necessary minimum evidence establishing all the ingredients of the offence not evidence to convict.
I have taken the pains to lay this broad foundation before delving into the application proper so that the focus would/should be directed to what the Court below was expected to do and the limits allowed by law. Therefore, any submission that would take the Court outside the realm of what Superior Courts should have done shall be discountenanced.
The contention of the Appellant is simply that there is no evidence implicating the Appellant in the commission of the offences alleged in the charge sheet with 22 counts. The offences alleged can be classified into these 3 types and as follows:
i. Conspiracy to convert various sums belonging to NIMASA
(counts 1, 3, 5, 9, 11, 13, 19 and 21)
ii. Conversion of the various sums
(Counts 2, 4, 6, 8, 10, 12, 14, 16, 18 and 20)
iii. Inducement count 22.
It must be made clear that a no case submission should succeed where there is no evidence in support of one ingredient or element of the offence to be proved and not necessarily when all the ingredients are not made out, see the case of UBANATU V COP (2000) LPELR-3280 (SC).
It is therefore necessary to identify the ingredients of each of the categories of offences listed above before we make progress in this judgment.
To prove conspiracy, the prosecution must present evidence in respect of every essential element needed to establish the offence. The apex court pronounced on the ingredient of conspiracy in the case of OKOH V STATE (2014) LPELR-22589 thus:
“It is also well settled that the essential ingredient of the offence of conspiracy lies in the bare agreement and association to do an unlawful thing, which is contrary to or forbidden by law, whether that thing be criminal or not and whether or not the accused persons had knowledge of its unlawfulness. Evidence of conspiracy is usually a matter of inference from surrounding facts and circumstances. The trial Court may infer conspiracy from the fact of doing things towards a common purpose. See: Clark V. The State (1986) 4 NWLR (Pt. 35) 381; Gbadamosi V. The State (1991) 6 NWLR (Pt. 196) 182; Aje V. The State (2006) 8 NWLR (Pt. 982) 345 at 363 A – C; Kaza v. The State (2008) 7 NWLR (pt. 1085) 125 @ 175 – 176 F – B.” Per KEKERE-EKUN, J.S.C.
NIKI TOBI, J.S.C (of blessed memory) also talked about conspiracy in the case of KAZA V STATE (2008) LPELR- 1683(SC) thus:
“From the above, I sift the following ingredients of the offence of conspiracy: (i) There must be an agreement of two or more persons. In other words, there must be a meeting of two or more minds. (ii) The persons must plan to carry out an unlawful or illegal act, which is an offence. (iii) Bare agreement to commit an offence is sufficient. (iv) An agreement to commit a civil wrong does not give rise to the offence, as Section 97(1) of the Penal Code provides only for criminal conspiracy. (v) One person cannot commit the offence of conspiracy because he cannot be convicted as a conspirator. (vi) A conspiracy is complete if there

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are acts on the part of an accused person which lead the trial Court to the conclusion that he and others were engaged in accomplishing a common object or objective.” Per TOBI, J.S.C.
Conspiracy is therefore grounded in agreement of the accused persons and an agreement is the state of being in accord or unanimity of opinion or an arrangement that is accepted by all parties. So the prosecution must present evidence of agreement, which may not be direct but can be by inference.
The next offence is conversion. Conversion is an act of willful interference, without lawful justification with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of that chattel.
In the case of BUA V. DAUDA (2003) 13 NWLR (Pt. 838) 657 UWAIFO JSC, describes the term undue influence in the following language;
“Undue influence is no doubt elusive of satisfactory definition but it may be regarded as a state of mind of a person who has been subdued to any improper persuasion or machination in such a way that he is overpowered and consequently induced to do or forbear an act which he would otherwise do or not do of his free will. It is a product of the abuse or misuse of the confidence reposed in someone who is able to put some pressure on or take unfair advantage of another: or who takes an oppressive and unfair advantage of another necessities or distress.” Per PATS-ACHOLONU, J.S.C.
Being a criminal offence, the criminal intent or false pretense is important and must be supported by evidence. False pretense was described in the case of ABATAN OLUWASHEUN V THE FEDERAL REPUBLIC OF NIGERIA (2016) LPELR-40768 thus:
The term false pretences denotes the offence of knowingly obtaining someones property by misrepresenting a fact with the intent to defraud that person. In Blacks Law Dictionary, tenth edition it is also termed; the crime of knowingly obtaining title to another persons property by misrepresenting a fact with the intent to defraud. The offence has also been fittingly defined in Section 20 Advance Fee Fraud and other Related Offences Act, 2006, in this way: 20. In this Act- false pretence means a representation, whether deliberate or reckless, made by word, in writing or conduct, of a matter of fact or law, either past or present which representation is false in fact or law, and which the person, making it knows to be false or does not believe to be true. Per Sankey, J.C.A.
To prove obtaining by false pretense, my learned brother OGAKWU, JCA in the case of REV VICTOR MUKORO V FEDERAL REPUBLIC OF NIGERIA (2015) LPELR-24439 (CA) said:
Now, for the offence of obtaining by false pretences to be committed it must be proved that the accused person had an intention to defraud and that the thing is capable of being stolen. An inducement on the part of the accused person to make his victim part with the thing capable of being stolen or make his victim deliver a thing capable of being stolen will expose the accused person to imprisonment for the offence.
In the same vein, JUSTICE ADEJUMO, JCA in the case of ADOHA UGO-NGADI V FEDERAL REPUBLIC OF NIGERIA(2015) LPELR- 24824(CA) on the ingredients said as follows:

In AGUBA V FRN (2014) LPELR-23211, this Court held that the offence of obtaining property by false pretences could be committed in writing or even by mere oral communication of the accused person. See AMADI V FRN(2008) 18 NWLR (Pt. 1119) 259; ONWUDIWE V FRN (2006) 10 NWLR (Pt.988) 382; OSHIN V IGP (1961) I SCNLR 40 where the Court listed the ingredients of obtaining by false pretence thus: (a) that there was a pretence; (b) that the pretence emanated from the Defendants (c) that it was false; (d) that the Defendants knew of the falsity or did not believe in its truth; (e) that there was an intention to defraud; (f) that the thing is capable of being stolen and (g) that the Defendants induced the owner to transfer the property.

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The memo requesting for funds should have been dishonestly or fraudulently represented to the National Security Adviser or the Presidency. No such evidence. Going by the charge before the Court below, the Federal Government was the party induced to release what was approve in a budget for the ISPS code program. The fact that the project of ISPS is genuine and true and the money was budgeted for it defeats the allegation of inducement in the charge. The prosecution did not present any evidence to back the allegation of inducement and conspiracy to induce the release of the money. Furthermore, the Respondent did not extend its investigations to the office of National Security Adviser who forwarded the Memo to the Presidency nor the Presidency (President) who approved to confirm that there was inducement. Meanwhile, PW12 also admitted under cross examination that the subject matter exist; the money was budgeted for and there was a previous committee. Exhibits tendered clearly depict an official request duly approved. It was not established by slight evidence that the Appellant induced anybody outside official actions duly taken. No evidence of deceit against the appellant was presented by the prosecution. In any case, it was the 1st accused who wrote the memorandum for money to fund the ISPS project and not he appellant herein. So if there was any fraudulent deceit, it couldnt have come from the Appellant herein. I agree with the Appellant that there is no evidence of inducement. The prosecution has failed to make out a prima facie case against the Appellant on inducement. The no case submission application should succeed on all the counts of conspiracy to induce and that on inducement. They are hereby struck out from the charge.
I agree with the Respondent that Section 357 of the Administration of Criminal Justice Act is at play here and it states thus:
Where at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence, the Court shall, as to that particular charge, discharge him being guided by the provision of Section 302 of this Act. Also Section 302 provides as follows:
The Court may, on its own motion or on application by the defendant after hearing the evidence for the prosecution, where it considers, that the evidence against the defendant or any of several defendants is not sufficient to justify the continuation of the trial, record a finding of not guilty in respect of the defendant without calling on him or enter his or their defence and the Court shall then call on the remaining defendant, if any, to enter his defence.
The simple act of calling on the Appellant to enter his defence to a criminal charge is only when a prima facie case has been made out and not otherwise. When either of the two conditions on which a No case submission application succeeds is made out then the application succeeds and not otherwise. The contention of the Appellant from the onset of its brief is that the burden is on the prosecution to prove elements of the offence and referred to the Ruling of the trial Court where it said: To this Court the charge is before the Court, the ingredients of the offences alleged are not difficult to discern. The Court cannot see the woods from the trees in the arguments that the evidence has not established a prima facie case. This the Appellant submitted is uncertain and a mere conjecture. I also find it unsettling that a trial Court will resolve a No case submission application without placing the evidence against the elements of the offence. In fact, the Court merely said the elements of the offence are not difficult to discern without identifying what they are and whose evidence established the elements of the offence to ground a prima facie case. I am not saying the Court below should evaluate the evidence, it has a duty to state the basis of its decision. The

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Court in the case of TOM ISEGHOHI V FRN(unreported) judgment in appeal No: CA/A/742C/2014 delivered on the 16th day of May 2017 held that at the stage of considering a No case submission, the Court below is only to consider whether there is evidence before the Court legally admissible evidence linking the accused with the commission of the offence with which he is charged. Even though a trial Court is not expected to write a lengthy ruling on a no case submission and it is not expected to make findings on the credibility of the witnesses that testified for the prosecution. It is my strong view that the Court ought to clearly consider the evidence adduced by the prosecution, review same as to determine whether or not proved the essential ingredients of the offences charged. This exercise does not amount to evaluation of evidence. Rather, it is tantamount to consideration of evidence. The Court failed to show how it arrived at its conclusion that the Appellant had a case to answer.
The case against the Appellant was that he along others conspired to induce the release of funds and as chairman of the ISPS Code Implementation Committee, whose funds constituted the funds said to have been laundered by the Appellant through the award of contracts by the ISPS committee to various companies and the sums were later converted to dollars and handed over to the Appellant and who also alleged that it was handed over to the 1st defendant at the trial Court and therefore committed an offence and is guilty of Money Laundering.
Let me at this stage dispose off the aspect of the charge alleging inducement, the Respondent contended that the Appellant induced the approval of money meant for the ISPS. The application was made by the 1st accused person through the office of the National Security Adviser and to the President who approved.
The 12th prosecution witness who was the investigating officer admitted that the money was budgeted for the ISPS project and he did go not go to the National Security Adviser nor the Presidency to verify that the project existed and whether approvals followed due process. He also admitted under cross examination that the committee had existed before it was reconstituted by the 1st accused.
The evidence before the Court is that the Appellant, 1st accused at the trial Court, by way of memo got approval for the release of funds for a project ISPS (International Ship and Ports Security Code) and then set up an independent committee chaired by the Appellant; a separate account was created for the committee and funds for the project moved into it. The funds moved was the exact amount approved by the President that was transferred into the said account. The Appellant is a signatory to the account and cheques were issued by the Appellant. There is legally acceptable evidence linking the Appellant to the purposes the money was put to. Having issued cheques the value for which were converted to dollars and given to the Appellant, he needs to explain what he did with the money. There is no evidence that the memo to the President was fraudulent nor was it established that the ISPS project was a fraud; which presupposes that the funds were duly approved and authorized after due process in securing the funds. PW12 admitted that his investigations did not get to the office of the National Security Adviser nor the Presidency. Consequently, the offence of inducement out rightly cannot hold as the facts are clearly contrary to the allegation of inducement because due process was followed. No evidence of fraudulent intent was presented.
Any allegation that the Appellant acted contrary to law, thus committing any offence can only start from the withdrawal of the money and not from the memo and release of funds to NIMASA for the existing project. The existence of the committee was not illegal as PW12 admitted there was a committee previously in existence. Even learned counsel for the Respondent admitted in his brief that the money was duly released for the purposes of the ISPS project.

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Inducement has been defined in Blacks Law Dictionary 8th Edition at page 790, as follows: “The act or process of enticing or persuading another person to take a course of action.” See also NGORKA V A.G IMO STATE (2014) LPELR- 22532(CA). For this class of offences, a person accused must have intentionally enticed or persuaded another to take the course of action which he would not have taken but for the process of persuasion by the accused. I will also add that the inducement must be by way of falsehood or deceit. It can be likened to undue influence which the apex Court described it in the case of BUA V DAUDA (2003) 13 NWLR (Pt. 838) 657 following words:
“Undue influence is no doubt elusive of satisfactory definition but it may be regarded as a state of mind of a person who has been subdued to any improper persuasion or machination in such a way that he is overpowered and consequently induced to do or forbear an act which he would otherwise do or not do of his free will. It is a product of the abuse or misuse of the confidence reposed in someone who is able to put some pressure on or take unfair advantage of another: or who takes an oppressive and unfair advantage of another necessities or distress.” Per PATS-ACHOLONU, J.S.C.
The Appellant was the chairman of the committee that handled the ISPS project and the account was under his control. It was established that money was taken from the account and witnesses testified that payments were made to them. Furthermore, there was evidence that part of the money was converted to dollars and handed over to the Appellant by 3rd and 4th accused persons. The Appellant therefore has a duty to explain how those various sums were expended, whether it spent for the project or not. There is need for explanation from him. On the allegation of conversion, the no case submission application must fail. And also since there are counts alleging conspiracy to convert fund meant for ISPS project, those counts too would stand. There is evidence to defeat the no case submission here, documentary evidence also links the Appellant to the issuance of the cheques and as chairman of the committee all issues relating to the ISPS revolved around him. The strength of the evidence at this stage should not be the required for a conviction but that it links, connects and mentions the appellant.
On the whole therefore, the no case submission succeeds in respect of counts 21 and 22 which are the counts of conspiracy to induce and inducement and fails in respect of counts 1 20 which are counts in respect of conspiracy and conversion of various sums of the ISPS fund in the committee account under the control of the Appellant. This appeal partially succeeds.
The Appellant is to return to the trial Court for continuation of hearing in respect of counts 1  20 while counts 21 and 22 are hereby struck out of the charge.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The Appellant was one of six defendants charged before the Federal High Court on twenty-two sundry counts of conspiracy, conversion and inducement. At the close of the case for the Prosecution, the Appellant made a no case submission which was overruled by the lower Court. The instant appeal was brought against the refusal of the no case submission.
My learned brother, Yargata Byenchit Nimpar, JCA, obliged me with an advance copy of the leading judgment which has just been delivered. I agree with the reasoning and the manner the issue thrust up for determination was resolved in the leading judgment.

…………………….J…………………….

By the provisions of Sections 302 and 357 of the Administration of Criminal Justice Act a no case submission can be made and upheld where at the close of the case for the Prosecution it appears that a case has not been made out against the defendant sufficiently to require him to enter a defence to the charge. In other words, that the evidence adduced by the Prosecution did not disclose a prima facie case against the defendant. The rationale behind this is that the Prosecution having failed to make out a prima facie case against the defendant; asking the defendant to enter upon his defence would be requiring him to prove his innocence, which will be contrary to the presumption of innocence guaranteed in Section 36 (5) of the 1999 Constitution.The expression prima facie case has been defined as meaning that there is a ground for proceeding. Put differently, that something has been produced which makes it worthwhile to continue with the proceeding. On the face of it, it suggests that the evidence produced so far indicates that there is something worth looking at. See DURU vs. NWOSU (1989)1 NWLR (PT 113) 24 at 43 and UBANATU vs. COP (2000)1 SC 31 at 36-37.
Simply put, a Court can uphold a no case submission and discharge a defendant without requiring him to enter upon his defence where the evidence adduced by the Prosecution is not sufficient to justify the continuation of the trial and or that a case is not made out against the defendant sufficiently to require him to make a defence.

Section 303 (3) of the Administration of Criminal Justice Act provides for what a Court has to take into consideration in exercising discretion on a no case submission. See KALU vs. IGP (2017) LPELR (42857) 1 at 40 and FRN vs. SARAKI (2017) LPELR (43392) 1 at 40. The said Section 303 (3) provides as follows:
(3) In considering the application of the defendant under Section 303, the Court shall, in exercise of its discretion, have regard to whether:
(a) an essential element of the offence has been proved;
(b) there is evidence linking the defendant with the commission of the offence with which he is charged;
(c) the evidence so far led is such that no reasonable Court or tribunal would convict on it; and
(d) any other ground on which the Court may find that a prima facie case has not been made out against the defendant for him to be called upon to answer.”

Having read the Records of Appeal and briefs of argument filed and exchanged by the parties, I agree with the analysis and summation in the leading judgment that the evidence adduced by the Prosecution in respect of Counts 21 and 22 of the Charge is not sufficient to justify the continuation of the trial on those Counts, as a prima facie case was not made out against the Appellant sufficient enough to require him to enter upon his defence in respect of those Counts of the Charge.
Conversely, the evidence adduced in respect of Counts 1 to 20 of the Charge sufficiently links the Appellant to the commission of the offences charged on those Counts, such that the Appellant must enter upon his defence in respect of the said counts of the Charge. See Section 358 of the Administration of Criminal Justice Act.
I am therefore allegiant to the conclusion in the leading judgment that the no case submission succeeds in respect of Counts 21 and 22 of the Charge only. The Appellant is discharged on the said Counts, while he is to enter upon his defence in respect of Counts 1 to 20 of the Charge.
Consequently, I also join in allowing the appeal in part.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the privilege to preview the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA and I agree with the reasoning contained therein and the conclusion arrived thereat.
My learned brother has adequately considered all the issues raised in this appeal, as such, I have nothing useful to add. I abide by the consequential orders made in the leading judgment.

Appearances

E. D ONYELA with him, F.M FASOMU. –For Appellant

AND

ROTIMI OYEDEPO. –For Respondent

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