FRN v. OLUOHU & ORS (2020)

FRN v. OLUOHU & ORS

(2020)LCN/14197(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, May 18, 2020

CA/C/485C/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Philomena Mbua Ekpe Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

FEDERAL REPUBLIC OF NIGERIA APPELANT(S)

And

1.EDWARD ODEY OLUOHU 2.BLUE DOLPHIN LIMITED 3.FRANK ASUKWO OKON 4.LIB-ZONE PETROLEUM LIMITED 5.GODWIN ETIM ANWANADUNG RESPONDENT(S)

RATIO

NO CASE SUBMISSION

The law is equally settled that a submission of no case to answer made on behalf of an accused person in a criminal trial at the close of the case of the prosecution postulates one or two things or both of them at once:
(a) That there has been throughout the trial, no legally admissible evidence linking him in any way with commission of the offence he had been charged which would necessitates his being called upon for his defence.
(b) That whatever evidence was there which might have linked the accused person with the offence has been so discredited that no reasonable Court can be called upon to act on it as establishing criminal guilt in the accused person.
In the light of above, when a submission of no case to answer is made, the trial Court is not hereby called upon at that stage of the proceeding to express any opinion on the evidence before it. Thus, the Court is only called upon to take note and to rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged or that there is evidence linking the accused with the commission of the offence but same was discredited and no Court would convict on it. In other words, a submission of no case to answer will succeed where the prosecution fails to prove essential element of an offence and where the evidence led by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Court would safely convict on it. See Ajiboye Vs The State (Supra), Daboh Vs The State (1977) 5 SC 197 at 209, Tongo Vs C.O.P. (2007) 12 NWLR (Prt 1049) 525 and C.O.P. Vs Amuta (2017) LPELR – 41386. PER SHUAIBU, J.C.A

WHEN IS A PRIMA FACIE CASE SAID TO BE MADE AGAINST AN ACCUSED PERSON

In the case of Amah VS F.R.N. (2019) 6 NWLR (Prt 1667) 160 at 201-202, the Supreme Court held that once the prosecution from the totality of the evidence led against the accused person is able to make a case warranting the accused person to make some explanation or refute the evidence against him, a prima facie is said to have been made against him. Thus, prima facie means the establishment of a legally required rebuttable presumption. PER SHUAIBU, J.C.A

OFFENCES RELATING TO DEALING WITH PETROLEUM WITHOUT A LICENSE

In counts 2, 4 and 6 of the charge, the respondents are charged with dealing in petroleum products without appropriate license, adulterating petroleum products, which were loaded into vehicle with registration Numbers AKP 222XA, BNS 298KA and AKP 223XA contrary to and punishable under Sections 1(17), 1(18) (a)(i) and 1(18) of the Miscellaneous Offences Act, Laws of the Federation of Nigeria, 2004. Sections 1(17)(a), 18(a)(i) and 18(a) of the said law provides: –
“17. Any person who without lawful authority or any appropriate license
(a) Imports, exports, sells, offers for sale, distributes or otherwise deals with or in any crude oil, petroleum product in Nigeria shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for life and in addition, any vehicle, vessel, aircraft or other conveyance used in commission therewith shall be forfeited to the Federal Government.
18. Any person who-
i. Adulterates petroleum, petroleum product, food drink, drug, medical preparation or any manufactured or processed product whatsoever so as to affect or change materially the quality substance, nature or efficiency of such petroleum, petroleum product, food, drink, drug, medical preparation or manufactured or processed product, as the case may be, without notice to the purchase of knowing that the same will be sold as petroleum, petroleum product, food, drink, drug, medical preparation or manufactured or processed product, shall be guilty of an offence and liable on conviction for a term not exceeding fourteen years without option of fine.
ii. Deals in, sells, offers for sale any petroleum, petroleum product, food, drink, drug, medical preparation or manufactured or processed product which is not of the quality substance, nature or efficiency expected of the product or preparation or is not of the quality, substance, nature or efficiency which the seller represents it to be, or has in any way been tendered or has become noxious, dangerous or unfit, shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding ten years.” PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court sitting at Uyo, Akwa Ibom State delivered on 8th November, 2018 wherein the lower Court upheld the respondents’ No Case Submission at pages 267-268 of the record of appeal as follows: –
“It is obvious therefore that the prosecution witnesses PW1, PW2 and PW3 fielded by the prosecution have been so discredited even in cross examination that no reasonable Court will call on the accused persons to defend themselves on the evidence available. I find nothing in these charges against the accused persons to necessitate their being called upon to defend themselves. There is no reliable witness, no reliable exhibits, no proper investigation, nothing. The end result is that the prosecution found itself with a very weak case that was riddled with holes.
It is clear that none of the witnesses added anything to the prosecution’s case.
The prosecution has not been able to establish a prima facie case against the accused persons for them to be called upon to open their defence. I have no alternative than to invoke the

provision of Section 302 of the Administration of Criminal Justice Act. And that means the accused persons must be discharged and are hereby discharged of the charges, and such a discharge is equivalent to an acquittal and a dismissal of the charge on the merits. See Adeyemi Vs The State (1991) 6 NWLR (Prt 195)1. Accordingly, the accused persons are hereby acquitted and the charge(s) preferred against them dismissed on the merits.”

Dissatisfied with the above ruling, the appellant appealed to this Court through a notice of appeal filed on 3/11/2018. The notice of appeal at pages 381 – 386 of the record of appeal contains seven (7) grounds of appeal.

Distilled from the said seven grounds of appeal, N. K. Nkoha, Esq formulated three (3) issues for the determination of this appeal as follows: –
1. Whether from the totality of evidence adduced by the prosecution witnesses linking the Respondents with the offences so charged, the appellant was able to establish a prima facie case against the respondents to warrant them being called upon to enter their defence. (Distilled from ground 1, 2 and 3).
2. Whether the trial Court was right

when it discharged and acquitted the respondents of all the counts at the stage of a no case submission having failed and for refusal to ascribe probative value to several pieces of evidence both oral and documentary adduced by the prosecution against the Respondents at the trial. (Distilled from grounds 4 and 5)
3. Whether the trial Court was right to have ignored and discredited all the Exhibits particularly Exhibit 3 and the evidence of PW3 and labeled same as unreliable when the said documentary and oral evidence linked the respondents with the commission of the offences they are standing trial (Distilled from ground 6).

Learned counsel for the respondents, Ime Umanah, Esq. on his part formulated a lone issue thus:
Whether from the totality of the evidence adduced by the prosecution at the trial, the lower Court was right when it upheld the no case submission of the respondents and accordingly discharged and acquitted them on all counts of the charges.

Having carefully gone through the record of appeal vis-à-vis the above formulations, the lone issue formulated by the respondent is preferable for being apt, precise and quite

apposite to the just determination of this appeal. I shall therefore determine this appeal based on the lone issue formulated by the respondents.

Before delving into the argument of learned counsel, it is pertinent to state albeit briefly the facts of the case which gave rise to this appeal. The 5th respondent who is an employee of the 3rd and 4th respondents was arrested alongside two drivers and three trucks laden with petroleum products suspected to be Diesel/Automotive Gas Oil (AGO) on the 15th of January, 2018 by men of the Nigerian Army, 2 Brigade Uyo. The said respondents together with the recovered items were handed over to the appellant. Upon discreet investigation, it was discovered that the 1st and 2nd respondents are the owners of the three trucks laden with the petroleum product which was bought from the 3rd and 4th respondents. Further investigation also revealed that the 2nd and 4th respondents were not licensed to deal in petroleum products while the products in the three trucks were off specification which the Department of Petroleum Resources (DPR) explained as adulterated.

In the quest to establish the charge against the

respondents, the prosecution paraded three witnesses and tendered a total of seventeen 17 Exhibits, comprising the letters of investigation activities, analysis result of the samples taken from the trucks, pictures taken at Ebugu Fishing Terminal as well as statements and documents which came into possession of the appellant in the course of investigation into the matter. The said exhibits were accordingly marked Exhibits 1-17 respectively.

At the close of the case of the prosecution, learned counsel for the respondents made a no case submission which was upheld by the learned trial judge and accordingly discharged and acquitted the respondent.

Proffering argument on behalf of the appellant, learned counsel submits that a prima facie means a ground for proceeding and thus the evidence discloses a prima facie when it is such that if uncontradicted and if believed, it will be sufficient to prove the case against the accused person. Still in argument, learned counsel submits that the evidence adduced by the prosecution including the documentary exhibits tendered, same linked the respondents with the offences which warrant some explanation from them. He

referred to Ubanatu Vs C.O.P (2000) 1 SC 31, Duru Vs Nwosu (1986) 3 NWLR (Prt 113) and Ajiboye Vs State (1995) 8 NWLR (Prt 414) 408 at 418 to the effect that at the stage of no case submission, the question as to whether or not the evidence of the prosecution is believed is irrelevant.

In further argument, learned counsel submits that the purport of a no case submission is that the Court is not called upon at that stage to express any opinion on the evidence before it. The Court is only called upon to take note and rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence charged. However, where there is legally admissible evidence, no matter how slight, the matter should proceed as there is something to look at. He referred to Agbo & Ors Vs State (2013) LPELR – 20388 (SC) and Aituma Vs The State (2007) 5 NWLR (Prt 1028) 466.

It was also argued on behalf of the appellant that having shown that the respondents have no license to deal in petroleum products and the regulators having proven that the products were off specification, the prosecution had linked

the respondents with the offence charged and thereby requiring some explanation from them.
He referred to Abubakar & Anor Vs A.G Federation (2017) LPELR – 42000 per Owoade, JCA to the effect that the offence of illegal dealing in petroleum product is strict liability in nature.

For the respondents, learned counsel contends that a no case submission can properly be made or raised when there is 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 unreasonable that no reasonable tribunal could safely convict on it. He referred to Ibeziako Vs C.O.P. (1963) 1 SCLR 99 FWLR (Prt 55) 454 and Onagoruwa Vs State (1993) 7 NWLR (Prt 303) 49 and hosts of other cases in contending that the three witnesses called by the appellant at the lower Court were merely hearsay evidence with no direct link to the respondents.

He contends further that at the stage of a submission of no case to answer, a trial judge is bound to resolve manifest unreliability of the evidence of the prosecution witnesses in favour of the accused person

which according to the learned counsel is in accord with the presumption of innocence under Section 36 (5) of the 1999 Constitution. He thus submits that the witnesses paraded by the appellant at the lower Court were so discredited under cross-examination to such an extent that no reasonable tribunal could safely convict upon it.

It was also the contention of the respondents that once no prima facie case was made out on the charges touching on dealing in petroleum products without license, the other counts including the charges on conspiracy are destined to fail. Learned counsel submits that conspiracy cannot be established from mere conjecture elicited from inadmissible evidence of PW1, PW2 and PW3.

The appellant’s main contention in this case is that the totality of the evidence adduced at the lower Court discloses a prima facie case, requiring the respondents herein to be called upon to enter their defence. The 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. In Duru Vs Nwosu (1989) 1 NWLR (Prt 113) 84 at 43, Nnamani, JSC said:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“It seems to me the simplest definition is that which says “there is ground for proceedings”. In other words, that something has been produced to make it worthwhile to continue with the proceeding. On the face of it “suggest that the evidence produced so far indicates that there is something worth looking at.”
In the case of Amah VS F.R.N. (2019) 6 NWLR (Prt 1667) 160 at 201-202, the Supreme Court held that once the prosecution from the totality of the evidence led against the accused person is able to make a case warranting the accused person to make some explanation or refute the evidence against him, a prima facie is said to have been made against him. Thus, prima facie means the establishment of a legally required rebuttable presumption.

would necessitates his being called upon for his defence.
(b) That whatever evidence was there which might have linked the accused person with the offence has been so discredited that no reasonable Court can be called upon to act on it as establishing criminal guilt in the accused person.
In the light of above, when a submission of no case to answer is made, the trial Court is not hereby called upon at that stage of the proceeding to express any opinion on the evidence before it. Thus, the Court is only called upon to take note and to rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged or that there is evidence linking the accused with the commission of the offence but same was discredited and no Court would convict on it. In other words, a submission of no case to answer will succeed where the prosecution fails to prove essential element of an offence and where the evidence led by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Court would safely convict on it. See

Ajiboye Vs The State (Supra), Daboh Vs The State (1977) 5 SC 197 at 209, Tongo Vs C.O.P. (2007) 12 NWLR (Prt 1049) 525 and C.O.P. Vs Amuta (2017) LPELR – 41386.

drink, drug, medical preparation or any manufactured or processed product whatsoever so as to affect or change materially the quality substance, nature or efficiency of such petroleum, petroleum product, food, drink, drug, medical preparation or manufactured or processed product, as the case may be, without notice to the purchase of knowing that the same will be sold as petroleum, petroleum product, food, drink, drug, medical preparation or manufactured or processed product, shall be guilty of an offence and liable on conviction for a term not exceeding fourteen years without option of fine.
ii. Deals in, sells, offers for sale any petroleum, petroleum product, food, drink, drug, medical preparation or manufactured or processed product which is not of the quality substance, nature or efficiency expected of the product or preparation or is not of the quality, substance, nature or efficiency which the seller represents it to be, or has in any way been tendered or has become noxious, dangerous or unfit, shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding ten years.”
In counts 1, 3 and 5 of the charge,

the respondents are charged for conspiracy to deal in petroleum products without license, adulterating petroleum products as well as dealing in adulterated petroleum products punishable under Section 3(6) of the Miscellaneous Offence Act Cap. M17, Law of the Federation of Nigeria, 2004 and same provides: “Where a person aids, counsels, procures with any other person to commit any of the offences created by this act, he shall be guilty of an offence and shall on conviction be liable to the same punishment as prescribed for the offence under this Act”.
In a charge under Section 1(17) of the Miscellaneous Offences Act, the prosecution must prove that:
(a) The accused was in possession of product suspected to be petroleum product,
(b) The accused dealt in petroleum product,
(c) What was found was scientifically proven to be petroleum product,
(d) The accused had no lawful authority or appropriate license to deal in petroleum product.
In Abass Vs F.R.N. &Ars (2018) LPELR – 4369, this Court has held that the basic elements of the offence of dealing in petroleum products under Section 1(17) of the MOA are: –

(a) That a person natural or corporate dealt in petroleum products and
(b)That the person dealt with petroleum product without appropriate license.
It is pertinent to note that dealing in petroleum product would simply import using the products in such a manner as to make gains or benefits therefrom by way of trade or commerce. See Anim Vs F.R.N. (2014) LPELR – 23219.
The ingredients for the offences under Section 3(6) of the Act on the other hand are: –
(a) That there was a conspiracy amongst the accused persons to deal in petroleum products,
(b) That the accused persons were dealing in petroleum,
(c) That the dealing in petroleum products was without authority or appropriate license. See A-G Federation Vs Omomoh & Ors (2018) LPELR – 43945.
The phrase “deal” means an act of buying and selling the purchase and exchange of something for profit. In the instant case, both Pw1, Pw2 and Pw3 testified that the respondents dealt in and conspired to deal in petroleum product which was off specification. The prosecution in the course of the trial tendered an analysis report through PW3 who also confirmed that none of the

respondents had a lawful authority and or appropriate license to deal in petroleum products. Also in their separate statements, the respondents have by and large admitted ownership of the petroleum products being arrested. Part of the statement of the 1st respondent reads: –
“The three trucks with registration nos: AKP 222 XA, BNS 298XA and AKP 224XA arrested by the Nigerian Army belong to me. The names of the drivers are Bello, Samson and Samuel. I asked them to go load from Slok Energy in Ikot Abasi but and onr (Liberty) Frank Okon Asukwo who is also known as liberty the owner of libzone petroleum whom I have patronized a couple of times. It was on the 15th of January that (loaded) he loaded the trucks from his filling station at Onam. The product is diesel. On 14th (I rein) January. 2018 I remember speaking to Mr. Liberty about diesel but he told me he was not very sure the number of trucks he had. I also ordered the three trucks that were arrested…
I did not know when they commenced loading of the trucks and also did not know when they finished loading. I got a

call from Godwin Etim that my trucks were arrested. I also called Bello, one of my drivers at about midnight to inform me that the trucks were arrested by the military.”

Part of the evidence of PW1 reads: –
“Subsequently letter of investigation activities were written to several banks and Department of Petroleum Resources and response were received accordingly, and the response from DPR shows that the analysis result shows that the products were off specification, marketable and adulterated?…
Furthermore, a team of operative visited Ebuga Fishing terminal based on the volunteered statement of Frank Asukwo Godwin Etim to know if the said fishing terminal is used for haulage of petroleum product produce but on reaching Ebuga Fishing Terminal it was discovered that no activity concerning petroleum has taken place there, pictures were taken.”
Part of PW2’s evidence is that: –
“I also requested for license i.e. lifting or peddling which he said he did not have. I cannot recall that he showed any license.”

On his part, PW3 said: –
“I took the sample myself to Calabar to Akim Petroleum Ltd. A depot, the analysis was carried out which I witnessed personally. The result was received and all parameter fell outside the specification hence the product is off-specification, unmarketable and adulterated.”
When cross-examined, PW3 said: –
“Levy is not a licensed filling station. You cannot load product from NNPC without a license.”

Based on the above, the evidence adduced by the prosecution show that the respondents dealt in petroleum products without appropriate license. That the product was scientifically tested and proven to be off-specification. Thus, the prosecution in my view has made out prima facie case of dealing in petroleum product with appropriate license and thereby requiring some explanation from the respondents. And on the counts of conspiracy, the law is settled that conspiracy consists not merely the intention of two or more but in the agreement of two or more to do an unlawful act by unlawful means. On the particular facts of the present case, I entertain no doubt that the prosecution has also adduced evidence from

which an inference may be drawn as regards the common intention of the respondent to deal in petroleum product which also requires explanation from them. There are several decisions of the apex Court warning against discharge of accused persons after submission of no case to answer when as in this case, it is clear from the evidence adduced that the facts disclose some explanation which the accused has to make in view of what the prosecution may so far established from the evidence.

Learned trial judge has held that the prosecution witnesses PW1, PW2 and PW3 fielded by the prosecution have been so discredited under cross-examination and that none of them added anything to the prosecution case. The finding of the trial judge is far from been correct taking into account the fact that it is not the judge’s job at the stage of no case submission to weigh and evaluate evidence or decide who is telling the truth or who is lying and he is not to conclude that what the prosecution has adduced is unreliable. See R Vs Barker (1977) 65 Cr. APP R. 287.

In conclusion, I hold that this appeal is meritorious and is hereby allowed. The case is remitted to the

Honourable the Chief Judge Federal High Court for trial de novo before another Judge of the Federal High Court other than Hon. Justice F. O. Riman.

MOJEED ADEKUNLE OWOADE, J.C.A.: I had the privilege of reading in advance the judgment delivered by my learned brother M. L. Shuaibu, JCA. I agree with the reasoning and conclusion in the judgment. I also say that the appeal is meritorious and it is accordingly allowed. I abide with the consequential order.

PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Muhammed L. Shuaibu, JCA. I agree with the reasoning and conclusions reached therein and have nothing extra to add.
The appeal is hereby allowed.

Appearances:

K. Nkoha Esq. For Appellant(s)

Ime Umanah Esq. For Respondent(s)