‘Judgment that seeks to imprison must have admissible evidence’

IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION

BEFORE HIS LORDSHIP: HON. JUSTICE.Y. HALILU  SUIT NO. CR/169/15  DATE: THURSDAY 23RD MARCH, 2017  BETWEEN  FEDERAL REPUBLIC OF NIGERIA …… COMPLAINANT  AND ALABI AMOS ALABI ……………….. ACCUSED  The accused person in court and speaks English M. Saraya for the prosecution. J.C Njikoye for the defendant with I.A Arotiowa and Blessing Yusuf (Ms). Prosecution’s counsel the case is adjourned for judgment and we are ready. JUDGMENT  By an application to prefer a criminal charge dated 10th day of April, 2015 the prosecution brought 11 counts charge against the defendant bordering on criminal breach of Trust, dishonest or fraudulent execution of deed of transfer, cheating by personation, public servant dishonesty receiving money not due contrary to section 313, 31, 177, 291, 320 and 122 of the penal code cap. 89 law of the Northern Nigeria 1963. The defendant was charged as follows:- COUNT ONE That you, Alabi Amos Alabi, (M) 36 years, public servant, of Plot 154 Sultan Dasuki way, Kubwa, Abuja within the jurisdiction of this Honourable court on or before September, 2014 fraudulently collected a car, Mitsubushi Space Wagon, 3 seater and royal blue in colour belonging to Mr. Akaanan Jacob Gwaza, for three Hundred and Fifty Thousand Naira (N350,000) only. You hereby committed an offence of criminal breach of trust, contrary to Section 311, and punishable under section 313 of the Penal Code Cap 89. Law of Northern Nigeria 1963. COUNT TWO That you, Alabi Amos Alabi, (M) 36 years, public servant, of plot 154 Sultan Dasuki way, Kubwa, Abuja within the jurisdiction of this honourable Court on 13th November, 2014 bought a Bajaj Boxer Motorcycle of N115,000 only belonging to Mr. Charles Agwunoha and issued a dud cheques on same on the 21st November, 2014 knowingly that there was no money in the account. You hereby committed an offence of criminal breach of trust, contrary to section 311, dishonest or fraudulent execution of deed of transfer containing false statement of consideration section 177 and punishable under section 313 and section 177 respectively of the Penal Code Cap 89, law of Northern Nigeria 1963. COUNT THREE That you, Alabi Amos Alabi, (M) 36 years, Public Servant, or plot 154 Sultan Dasuki way, Kubwa, Abuja within the jurisdiction of this honourable court on 2nd July, 2013 issued a dud cheque knowingly that there was no money in favour of one Shorunke Akeem Temitayo in NIMEE EXECUTIVE NIG. LTD of two hundred and thirty thousand Naira (N230,000) only. You hereby committed an offence of criminal breach of trust, contrary to section 311, dishonest or fraudulent execution of deed of transfer containing false statement of consideration section 177 and punishable under section 313 and section 177 respectively of the Penal Code Cap 89, Law of Northern Nigeria 1963. COUNT FOUR That you, Alabi Amos Alabi, (M) 36 years, public servant, of plot 154 Sultan Dasuki way, Kubwa – Abuja within the jurisdiction of this honourable court on 16th December, 2014 issued a dud cheque knowingly that there was no money in favour of Infinite Mercy Multi-Purpose Cooperative Ltd of five hundred and sixty thousand Naira (N560,000) only. You hereby committed an offence of criminal breach of trust, contrary to Section 311, dishonest or fraudulent execution of deed of transfer containing false statement of consideration section 177 and punishable under Section 313 and Section 177 respectively of the Penal Code Cap 89, law of Northern Nigeria 1963. COUNT FIVE That you, Alabi Amos Alabi, (M) 36 years, public servant, of Plot 154 Sultan Dasuki way, Kubwa – Abuja within the jurisdiction of this Honourable Court on 9th May, 2014 you issued a dud cheque knowingly that there was no money in favour of one Okunola Maraina of behind Conoil filling station, Area 1, Garki Abuja for the sum of eighteen thousand Naira (N18,000) only. You hereby committed an offence of criminal breach of trust, contrary to section 311, dishonest or fraudulent execution of deed of transfer containing false statement of consideration Section 177 and punishable under Section 313 and Section 177 respectively of the Penal Code Cap 89, law of Northern Nigeria 1963. COUNT SIX  That you, Alabi Amos Alabi, (M) 36 years, Public Servant, of Plot 154 Sultan Dasuki way, Kubwa, Abuja within the jurisdiction of this honourable court on or before May 2013 obtained a loan of fifty thousand Naira (N50,000) only from one Popoola Yemisi of Cooperative Unit of FCT Command of NSCDC. You hereby committed an offence of criminal breach of trust, contrary to Section 311 and punishable under Section 313 of the Penal Code Cap 89, Law of Northern Nigeria 1963. COUNT SEVEN That you, Alabi Amos Alabi, (M (36 years, public servant, of Plot 154 Sultan Dasuki way, Kubwa – Abuja within the jurisdiction of this honourable court, on or before December, 2013 fraudulently collected the sum of one hundred and fifty five thousand Naira (N155,000) only from Collins Cheta Ezenwa ASC II of NSCDC FCT Command as reported on 24th February, 2015 for the following reasons: i. Money plus of NNPC N100,000 ii. Collected N20,000 for his damaged car iii. Collected N15,000 during the eve of traditional wedding. iv. Collected N10,000 for arms training v. Collected N10,000 for Hilux for an even organized by his younger brother, Nonso Exenwa. You hereby committed an offence of cheating by personation, contrary to Section 320 and extortion Section 291 and punishable under Section 322 and Section 292 respectively of the Penal Code Law Cap 89 law of Northern Nigeria 1963. COUNT EIGHT That you, Alabi Amos Alabi, (M) 36 years, public servant, of plot 154 Sultan Dasuki Way, Kubwa – Abuja within the jurisdiction of this honourable court extorted money to the sum of four hundred thousand Naira (N400,000) only from Mr. Siaka Alih of Kuchigoro of FCT Abuja with the pretence to secure employment in the Nigeria Security and Civil Defence Corps. You hereby committed an offence of cheating by personation, contrary to Section 320; and public servant dishonesty receiving money not due, section 122 punishable under Section 322 and Section 122 of the Penal Code Cap 89 Law of the Northern Nigeria 1963. COUNT NINE That you, Alabi Amos Alabi, (M) 36 years, public servant, of plot 154 Sultan Dasuki Way, Kubwa – Abuja within the jurisdiction of this honourable court collected the sum of one hundred and fifty thousand Naira (N150,000) only from one Mr. Ohan Chinedu of No. 10 His grace Avenue, Dei – Dei Abuja under the pretence to secure him employment with Nigeria security and Civil Defence Corps. You hereby committed an offence of cheating by personation contrary to Section 320; and public servant dishonestly receiving money not due, section 122 punishable under sections 322 and section 122 of the Penal Code Cap 89 Law of the Northern Nigeria 1963. COUNT TEN That you, Alabi Amos Alabi, (M) 36 years, public servant, of Plot 154 Sultan Dasuki way, Kubwa- Abuja within the jurisdiction of this Honourable Court, that you collected the sum of five hundred and ninety-five thousand Naira (N595,000) only from one Mrs. Fabian Excel in respect of granting her employment with Nigeria Security and Civil Defence Corps. You hereby committed an offence of cheating by personation contrary to Section 320; and public servant dishonesty receiving money not due, section 122 punishable under Section 322 and Section 122 of the Penal Code Cap 89 law of the Northern Nigeria 1963. COUNT ELEVEN That you, Alabi Amos Alabi, (M) 36 years, public servant, of plot 154 Sultan Dasuki Way, Kubwa – Abuja within the jurisdiction of this honourable court that in 2013 you extorted the sum of three hundred thousand Naira (N300,000) only from one Miss Janet Eroh from Mpape under the false pretence of securing her a job with Nigeria Security and Civil Defence Corps all within the jurisdiction of this Honourable Court. Prosecution which tendered Exhibit “G” i.e three pictures showing PW6 and the accused with wards of money on display. Pw6 gave evidence of the fact that both accused person and himself are members of the same Friends Club called “One on one ambition ventures” where PW6 is the Executive Secretary. Pw6 stated in his evidence that accused person made a written undertaking before their club members to repay the said N150,000.00 but failed. Qst.. What was the money for? Employment into Nigeria Security and Civil Defence Corps (NSCDC) or Accused borrowed the money? Qst.. Where is the letter of undertaking accused wrote before PW6 club members? Qst.. Where is the evidence that accused collected N150,000 for employment purpose and not the fact that he borrowed the money? The fact that accused person appeared in Exhibit “G” with PW6 is not enough. There ought to be further evidence to corroborate the said Exhibit “G”. What more.. learned counsel for the defendant cited Section 84 (4) Evidence Act in urging the court to expunge Exhibit “G” (pictures), an argument prosecution counsel allowed unshaken. The argument of learned counsel for the prosecution is upheld. The said pictures i.e Exhibit “G” are hereby expunged for failing to meet the criteria stated under Section 84(4) Evidence Act. See AKEREDOLU VS MIMIKO (2013) LPELR 20532 (CA). I also agree again with learned counsel for the defendant that prosecution has failed to prove count 9. Indeed a judgment which seeks to send a man to prison thereby curtailing his liberty of those unalienable rights and freedom, must be punctuated by logical thinking based on cogent and admissible evidence in which the acts leading to his conviction are hardy be allowed to stand if founded on scraggy reasoning or a perfunctory performance. Defendant is discharged and acquitted of the charge in count 9. Under counts 10 and 11, no evidence was called by the Prosecution. Accused is there consequently discharged and acquitted. Allocutors  Defendant’s counsel We urge the court to consider the fact that the accused person is only 37 years old with family and wife and defendants. There is no evidence of previous conviction. We urge the court to therefore temper justice with mercy. We urge the court to inliers of imprisonment, caution the accused person. We rely on section 311 (1) and (2) of ACJA 2015. We shall be asking that fine be imposed on the defendant that is not burdensome. We urge the court to consider section 420 ACJA 2015. Prosecution  We urge the court to exercise its discretion judicially and judiciously. Court  I have considered the allocutors of the defendant. I must say that the defendant is an officer of a very sensitive security outfit (NSCDC). I have also considered the fact that there is no evidence of any previous conviction before me on record. I however must observe that characters like the defendant deserve to be kept away from the public to serve as deterrent to other officers alike. I hereby sentence defendant to 5 years imprisonment without any option of fine. He shall serve the term in Kuje prison. Justice Y. Halilu Hon. Judge  23rd March, 2017.]]>