Effect of failure to prove an essential ingredient of an offence

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 19th Day of February,  2021

 Before Their Lordships

Nwali Sylvester Ngwuta

John Inyang Okoro

Ibrahim Mohammed Musa Saulawa

Adamu Jauro

Emmanuel Akomaje Agim

Justices, Supreme Court



ENGR. MICHAEL OKIGBO EMEKA                                                    APPELLANT                  


 INSPECTOR GENERAL OF POLICE                                                    RESPONDENT


 (Lead judgement delivered by Honourable Ibrahim Mohammed Musa Saulawa, JSC)


The Appellant and four others at large were arraigned before the High Court of the Federal Capital Territory on a nine-count Charge of criminal conspiracy, criminal trespass, mischief, house breaking, forgery, impersonation and false information, contrary to Sections 97, 342, 327, 364, 366, 179 and 140 respectively. It was the case of the Respondent that the Appellant had forged certain documents and falsely represented himself to the Respondent as the Managing Director of a certain Zuma Steel West Africa Limited, and based on this false information, the Respondent had been misled to approve and provide security details to the Appellant.

The Appellant pleaded not guilty to all the nine counts. The Respondent called four witnesses and at the conclusion of trial, the trial court discharged and acquitted the Appellant of all the nine counts. Dissatisfied with the decision of the trial court, the Respondent appealed to the Court of Appeal. After hearing the appeal, the Court of Appeal concluded that the Respondent’s appeal was meritorious in part. The Court of Appeal consequently affirmed the discharge and acquittal of the Appellant on counts 1 to 7 of the charges against him and found him guilty of the offence of impersonation in count 8 and giving false information in count 9. The Appellant was therefore, sentenced to twelve months imprisonment on each of the two counts or payment of a fine of N100,000.00 (One Hundred Thousand Naira) on each of counts 8 and 9 of the Charge. Aggrieved, the Appellant appealed to the Supreme Court.

Issue for determination

In its resolution of the appeal, the Supreme Court considered the following sole issue submitted for determination by the Appellant:

Whether having regard to the evidence adduced at the trial court, the Court of Appeal was correct to have partially set aside the judgment of the trial court by convicting the Appellant of counts 8 and 9 of the charges against him.


Counsel for the Appellant argued that there was no evidence beyond reasonable doubt in support of counts 8 and 9 of the Charge against the Appellant, contrary to Section 179 of the Penal Code. He argued further that none of the testimonies of the four witnesses called by the Respondent at trial established the guilt of the Appellant and supported his conviction on the two counts. Counsel submitted that the exhibits relied upon by the Court of Appeal did not support its conclusion on the culpability of the Appellant on the counts. He relied on the decisions in GWANGAWAN v THE STATE (1998) 4 NWLR (PT. 547) 576 and ISIBOR v STATE (2002) 6 SCJN.

 Arguing in opposition, counsel for the Respondent submitted that the Court of Appeal critically evaluated the exhibits and was therefore not in error in its conclusion based on the same. Counsel urged the apex court to affirm the decision of the Court of Appeal.

 Court’s Judgement and Rationale

Deciding the sole issue, the court held that the prosecution, in proving an allegation of false personation under  Section 179 of the Penal Code, has the uphill task of proving beyond reasonable doubt that (i.) The accused falsely personated another; (ii.) That he made an admission, while in the character and name of that person; and (iii.) That the admission was made in a civil or criminal proceeding.  The court held further that with regard to count 9 of the Charge of false information with intent to mislead a public servant contrary to Section 170 of the Penal Code, the prosecution has the burden to prove that (i) The accused gave information with intent to mislead a public servant; (ii) He knew or had reason to believe that the information was false when giving same; and (iii) The accused intended to cause or knew that the information was likely to cause the public servant to act on the false information.

Relying on Section 135(2) & (5) of the Evidence Act and its decisions in ILORI v THE STATE (1980) 8-11 SC 18, EMEKA v THE STATE (2011) 14 NWLR (Pt. 734) 668, the apex court held the prosecution ought to prove each of the 9 counts of the charge against the Appellant beyond reasonable doubt in any of the following manners: (i.) By the confessional statement of the accused person; (ii.) By direct evidence of an eye witness who must have witnessed the commission of the offence; or (iii) By circumstantial evidence thereby linking the accused person, and no other person, with the commission of the said offence.

The court held that the Court of Appeal failed to accord due regard to the Exhibit B1 and Exhibit B2/G, the special board resolution appointing the Appellant as Managing Director of the said Zuma Steel Africa Ltd and the letter of appointment shown by the Appellant as evidence of his appointment, and the fact that the Respondent failed to discharge the burden of proof on it to establish that the said documents were forged and were not genuine. The court referred to the finding of the trial court to the effect that throughout the evidence of the Respondent’s witnesses, no mention was made that said documents were forged and in the absence of evidence that the two documents, which were the main plank of the case were forged, all the allegations against the Appellant, including the allegation of impersonation and false information in counts 8 and 9 could not be sustained.

Their Lordships  held that the finding of the trial court was credible, unassailable and duly supported by evidence on record; as such, there could not be any justification for the Court of Appeal to come to an entirely different conclusion. The Court of Appeal failed to properly evaluate Exhibit D1, the Appellant’s letter to the Respondent requesting for security details, and if it had, it would have appreciated that even though the letter was dated 30/10/2007, before the Appellant assumed office as the Managing Director, it was delivered to the Respondent and received on 02/11/2007 which was clearly a couple of days after the issuance of Exhibits B1 and B2/G which empowered the Appellant to validly assume the position of the Managing Director of Zuma Steel West Africa Limited.

The court concluded, on the authority of its decision in FRANCIS OMOSEYE v THE STATE (2014) LPELR 22059 (SC), that if on the whole evidence at the conclusion of trial, the court is left in a state of doubt, the prosecution would have failed to discharged the onus of proof which the law lays upon it and the accused shall be entitled to an acquittal. On this basis, the court held that the Appellant ought to be entitled to an acquittal given the wanton failure of the Respondent to prove that he indeed committed the offence which he was charged with under counts 8 and 9 of the Charge.

Appeal allowed. Judgment of the trial court discharging and acquitting the Appellants of all counts restored


Mohammed Ndayako, Esq. for the Appellant.

Simon Lough Esq. for the Respondent.

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