IKUFORIJI v. FRN (2020)

IKUFORIJI v. FRN

(2020)LCN/14445(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, July 23, 2020

CA/L/1447C/2018

Before Our Lordships:

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

CHIEF OLAJIDE IKUFORIJI APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

THE ESSENCE OF A NO CASE SUBMISSION

The essence of a no case submission is that the evidence the Prosecution led had not made out a prima facie case to require the defendant to enter upon a defence of the Charge. Sections 302 and 303 of the Administration of Criminal Justice Act stipulate as follows:
“302. 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 them to enter his or their defence and the defendant shall accordingly be discharged and the Court shall call on the remaining defendant, if any, to enter his defence.”
“303.(1) Where the defendant or his legal practitioner makes a no case submission in accordance with the provisions of this Act, the Court shall call on the prosecutor to reply.
(2) The defendant or his legal practitioner has the right to reply to any new point of law raised by the prosecutor, after which, the Court shall give its ruling.
(3) In considering the application of the defendant under Section 303, the Court shall, in the 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 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.” PER OGAKWU, J.C.A.

THE PRACTICE DIRECTION ON WHEN TO MAKE A NO CASE SUBMISSION

The Practice Direction of Parker, L. C. J. issued by the Queen’s Bench Division of the High Court of England dated 9th February 1962 and contained in (1962) 1 All E. R. 448 on when to make a no case submission has for long served as a guide and has been generally applied by the Courts over the years in determining if the evidence against the defendant is sufficient to require him to make a defence. The Practice Direction provides:
“A submission that there is no case to answer may properly be made and upheld:
a) when there has been no evidence to prove an essential element in the alleged offence,
b) 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 can convict on it.”
See UBANATU vs. COP (supra), OHUKA vs. THE STATE (1988) 7 SC (PT 3) 25 at 26 and EMEDO vs. THE STATE (2002) 7 SC (PT 2) 162 at 164.
The conditions set out in the Practice Direction are not cumulative. Once any one of these conditions namely: (i) that an essential element has not been proved, (ii) that the evidence has been discredited by cross-examination, and (iii) the evidence adduced is manifestly unreliable exists, then a no case submission can be properly made and upheld. See UBANATU vs. COP (supra) at 38, 43, 44 and 53. These are some of the conditions which a Court usually takes into consideration in arriving at a decision on a no case submission and indeed they are in consonance with the latter day stipulations in Sections 302 and 303 of the Administration of Criminal Justice Act. See KALU vs. IGP (2017) LPELR (42857) 1 at 40 and FRN vs. SARAKI (2017) LPELR (43392) 1 at 40. PER OGAKWU, J.C.A.

A PRIMA FACIE CASE

A Prima facie case is said to be made out where there is ground for proceeding when the evidence before the Court is such that if uncontradicted and if believed will be sufficient to prove the case against a defendant. See Fidelis Ubanatu v. C.O.P. (2000) LPELR 3280 (S.C) per Ogwegbu [sic] JSC.
The Supreme Court in EMEDO & ORS V. THE STATE (2002) LPELR 1123 (S.C.) held on ruling on no case that:-
‘It is not the judge’s job, at that stage, 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.’ per Mohammed JSC. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): PROLEGOMENON The Appellant was arraigned before the Federal High Court, Lagos Division in CHARGE NO. FHC/L/323C/2016: FEDERAL REPUBLIC OF NIGERIA vs. CHIEF OLAJIDE IKUFORIJI. The Charge against the Appellant was a two count Charge of forgery and uttering of the Minutes of Emergency meeting of EKO EPE Forum held on 20th October, 2012, with intent to defraud.

In prosecution of the case, four witnesses testified for the Prosecution and some documents were tendered in evidence. At the close case for the Prosecution, the Appellant felt that the evidence adduced by the Prosecution was not sufficient for him to enter upon his defence of the Charge. It was also the Appellant’s contention that the lower Court did not have the jurisdiction to try the offences charged. The Appellant therefore filed an objection to the jurisdiction of the lower Court and a no-case submission. The lower Court dismissed the objection and no case submission, which decision precipitated this appeal.

The Ruling of the lower Court which was delivered on 14th September 2018 is at pages 412-428 of the

Records, while the Notice of Appeal, which was filed on 26th October 2018 is at pages 431-434 of the Records. In activation of the prosecution of the appeal, the Records of Appeal were compiled and transmitted and the Appellant filed his brief of argument on 5th December 2018. The Respondent equally filed its brief on 21st June 2019, but deemed as properly filed on 3rd October 2019. At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.

Two issues were distilled for determination in the Appellant’s Brief, scilicet:
“1. Whether the Federal High Court had jurisdiction to try the Appellant on the charges upon which he was arraigned in the Federal High Court Lagos Division (Distilled from grounds 1&2 of the Notice of Appeal)
2. Whether the lower Court was right in holding that the Respondent has made out a prima facie case to warrant the Appellant to enter a defence to the charge (Distilled from grounds 3, 4, & 5 of the Notice of Appeal).”

The Respondent equally formulated two issues for determination in the

Respondent’s Brief, videlicet:
“1. WHETHER GOING BY THE PROVISIONS OF MISCELLEANOUS OFFENCES ACT, CAP. M17 LAWS OF THE FEDERATION OF NIGERIA, 2004 THE LOWER COURT HAS JURISDICTION TO ENTERTAIN THE CHARGE THEREFROM.
2. WHETHER IN THE LIGHT OF OVERWHELMING EVIDENCES BEFORE THE LOWER COURT THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE PROSECUTION/RESPONDENT HAS ESTABLISHED PRIMA FACIE CASE AGAINST THE APPELLANT/DEFENDANT WARRANTING HIM OPENING HIS DEFENCE TO THE CHARGE.”

The issues crafted by the parties, though differently worded, are in their true essence and purport the same two and tuppence. Accordingly, it is on the basis of the issues as nominated by the Appellant that I will consider the submissions of learned counsel and resolve this appeal.

ISSUE NUMBER ONE
Whether the Federal High Court had jurisdiction to try the Appellant on the charges upon which he was arraigned in the Federal High Court Lagos Division

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant argues that the lower Court was wrong in holding that it had jurisdiction. It was stated that jurisdiction was fundamental and the

bedrock of adjudication since any proceedings conducted in the absence of jurisdiction is a nullity and the decision reached must be set aside. The cases of RODA vs. FRN (2015) 10 NWLR (PT 1468) 427 at 465, MADUKOLU vs. NKEMDILIM (1962) 1 ALL NLR 587, SHITTA-BEY vs. A-G FEDERATION (1998) 10 NWLR (PT 570) 392 and MBAH vs. THE STATE (2014) 5 SC (PT) [sic] 61 were referred to.

It was submitted that the criminal jurisdiction of the Federal High Court is as provided in Section 251 (3) of the 1999 Constitution vide AMIWERO vs. A-G FEDERATION (2015) 15 NWLR (PT 1482) 353 at 381 and that Section 1 (1) of the Miscellaneous Offences Act which the lower Court relied upon to hold that it has jurisdiction, is subject to the Constitution, and that by Section 1 (3) of the 1999 Constitution, the Constitution is supreme and so Section 1 (1) of the Miscellaneous Offences Act cannot be interpreted in such a way as to defeat the object of Section 251 (3) of the Constitution. The cases of AKPAMGBO-OKADIGBO vs. CHIDI (NO.3) (2015) 10 NWLR (PT 1466) 171, KANADA vs. GOV. KADUNA STATE (1986) 4 NWLR (PT 35) 361, ABSU vs. OTOSI (2011) 1 NWLR (PT 1229) 605 at 612 and

OGAGA vs. UMUKORO (2011) 18 NWLR (PT 1279) 924 at 929 were relied upon.

It was opined that by the ejusdem generis rule of interpretation, the forged document which the Federal High Court can try under the Miscellaneous Offences Act, are forged documents pertaining to banks, banking, bill of exchange and promissory note as listed in the Exclusive Legislative List of the Constitution. The cases ofOKEWU vs. FRN (2012) 9 NWLR (PT 1305) 327, OCHALA vs. FRN SC 782/2013 (unreported), AMIWERO vs. A-G FEDERATION (supra) and EZE vs. FRN (1987) 1 NWLR (PT 51) 506 at 518-519 were cited in support.

The Appellant asserted that the forged document, subject of the Charge at the lower Court, is the minutes of meeting of a social group relating to the chieftaincy of Epe Kingdom; and not related to any matter within the Exclusive Legislative List. It was therefore maintained that it was wrong to charge the Appellant before the lower Court and that doing so is an overreach which should not be allowed to stand. The cases of ONUORAH vs. KRPC LTD (2005) 6 NWLR (PT 921) 303, PETROJESSICA ENTERPRISES LTD vs. LEVENTIS TECHNICAL CO LTD (1992) 5 NWLR (PT 244) 675,

MANDARA vs. A-G FEDERATION (1984) NSCC 221 or (1984) 1 SCNLR 3 and AMIWERO vs. A-G FEDERATION (supra) at 385 were called in aid.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the lower Court was correct in its decision that it has jurisdiction to try offences under the Miscellaneous Offences Act. Jurisdiction was said to be the nerve centre of adjudication and that where a Court acts without jurisdiction, the entire proceedings will be a nullity vide NGERE vs. OKURUKET ‘XIV’ (2017) ALL FWLR (PT 882) at 1331-1332. It was stated that the jurisdiction of a Court is statutory and circumscribed within the confines of the law conferring jurisdiction. The cases of A-G ANAMBRA STATE vs. REGD TRUSTEES, C. D. A. LAGOS STATE (2017) ALL FWLR (PT 876) 16, DANGANA vs. USMAN (2012) ALL FWLR (PT 627) 612, ADENIJI vs. OROJA (1992) [no volume stated] NWLR (PT 325) 322 and NOKOPRISE INT. CO. LTD vs. DOBEST TRADING CORPORATION (1997) 9 NWLR (PT 520) 334 were referred to.

It is the further submission of the Respondent that Section 1(1) of the Miscellaneous Offences Act confers jurisdiction on the Federal High Court to try offences under the

Act. It was stated that the offences the Appellant was charged with are not in respect of negotiable instruments in order for the ejusdem generis rule to apply. This Court was urged to apply the mischief rule of interpretation, in order to validate the object of the Miscellaneous Offences Act. The cases of GEORGEWILL vs. OKWARA (2016) ALL FWLR (PT 837) at 751-752, OLOFU vs. ITODO (2010) LPELR – SC. 302/2010 at 41-42, UBN LTD vs. NWAOKOLO (1995) 6 NWLR (PT 400) 127 and UGWU vs. ARARUME (2007) 12 NWLR (PT 1048) 367 or (2007) ALL FWLR (PT 377) 807 were relied upon.

The Respondent maintained that the words used in Section 1 (1) of the Miscellaneous Offences Act were clear and unambiguous and should therefore be given the literal interpretation. The cases ofIFEZUE vs. MBADUGHA (1984) 5 SC 79, AMAECHI vs. INEC SC.252/2007 (unreported) delivered on 18/01/2008, SETRACO NIGERIA LTD vs. KPAJI (2017) ALL FWLR (PT 884) 1732 at 1758 and FIRST BANK vs. MAIWADA (2013) ALL FWLR (PT 661) 143 were called in aid. It was conclusively submitted that it is settled law that the Federal High Court has jurisdiction to try offences under the Miscellaneous Offences Act. The

case of OGUNBODEDE vs. FRN (2017) 5 NWLR (PT 1559) 337 at 345 was cited in support.

RESOLUTION OF ISSUE NUMBER ONE
At the core of the disceptation under this issue, is whether the lower Court had the requisite jurisdiction, to try the Appellant for the offences of forgery and uttering, with intent to defraud, of the Minutes of the Meeting of Eko Epe Forum held on 20th October 2012 and punishable under Section 1 (2) (c) of the Miscellaneous Offences Act. The crux of the Appellant’s contention is that the criminal jurisdiction of the lower Court is within the context of Section 251 (3) of the 1999 Constitution, and that the subject matter of the offence charged is a chieftaincy dispute which does not fall within the jurisdiction of the lower Court under Section 251 (1) of the 1999 Constitution. In the oft-cited case of MADUKOLU vs. NKEMDILIM (1962) ALL NLR 587 at 595 the apex Court stated as follows:
“A Court is competent to adjudicate when –
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) The subject

matter of the case is within its jurisdiction and there is no feature which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in the competence of the Court is fatal and the proceedings however well conducted and decided are a nullity as such defect is extrinsic to the adjudication.”
The law would appear to be settled that the competence of a Court and its jurisdiction to exercise its adjudicatory powers in respect of a matter before it are intervolved. A Court could have the jurisdiction in respect of the subject matter, but lack the competence thereby vitiating the effect of the jurisdiction it has. Jurisdiction and competence of a Court are complementary. They go hand in hand and are dependent on each other. In order to be properly seised of a matter, a Court must have both jurisdiction and competence. Competence of the Court is the handmaiden of the jurisdiction of the Court. See IBEANU vs. OGBEIDE (1994) 7 NWLR (PT 359) 697 at 700-701,

COTECNA INTERNATIONAL LIMITED vsIVORY MERCHANT BANK LIMITED (2006) All FWLR (PT 315) 26 at 43 and SOKOTO STATE GOVT vs. KAMDEX NIG. LTD (2007) LPELR (3093) 1 at 16. The authorities seem settled that where a Court is not competent, it cannot exercise jurisdiction.
In considering whether a Court has jurisdiction to entertain a matter, it has to be borne in mind that jurisdiction of a Court is not assumed, but must be based on the provisions of a statute. The jurisdiction of the Court does not derive from the sky or to put it in the Latinism, in nubibus. It is statutory. SeeIKECHUKWU vs. FRN (2015) LPELR (24445) 1 at 16. The jurisdiction of a Court is not something you employ a searchlight to discover, it must be plain for all to see: OBI vs. INEC (2007) 11 NWLR (PT 1046) 565 at 669. The Court’s duty when its jurisdiction to entertain a matter is put in issue is to expound its jurisdiction but not to expand it. See TUKUR vs. GOVT. OF GONGOLA STATE (1962) ALL NLR 587 at 549, EGBUE vs. ARAKA (2003) 9 MJSC 17 at 35 and MUDIAGA-ERHUEH vs. INEC (2003) 7 WRN 95 at 112-113.
A complete exposition of the jurisdiction of a Court would involve espousing the law as it relates to the

inherent jurisdiction of a Court. But that would not be necessary for the resolution of the quodlibet in this issue. Suffice it to say however that in addition to its statutory jurisdiction, a Court of record has its inherent jurisdiction which attaches to, and inheres in it, as an adjudicator and judex. The inherent jurisdiction of a superior Court of record is essential for its existence and necessary for the proper and complete administration of justice. The inherent power is innate in a Court of record, it is not granted by the Constitution or by legislation nor can it be abridged. It is however pertinent to state that Section 6 (6) (a) of the 1999 Constitution has recognised, endorsed and preserved the inherent jurisdiction, powers and sanctions of a Court of record. See AJAYI vs. OMOROGBE (1993) 6 NWLR (PT 301) 512 at 534 and EDE vs. MBA (2011) LPELR (8234) 1 at 51. In ADIGUN vs. A-G OYO STATE (1987) 2 NWLR (PT 56) 197, Oputa, JSC stated that “… the inherent power of a Court is the power which is itself essential to the very existence of the Court as an institution charged with the dispensation of justice … Inherent powers of the Court

are therefore those powers of the Court which are reasonably necessary for the administration of justice in the Court.” See alsoERISI vs. IDIKA (1987) LPELR (1160) 1 at 29-32.
The Appellant argues in paragraph 4.1.19 of the Appellant Brief that the document alleged to have been forged relates to Chieftaincy of Epe Kingdom and not related to any matter within the Exclusive Legislative List. It seems to me that in determining the Court with requisite jurisdiction to entertain a criminal matter, the Court would always consider the nature of the charge rather than the transaction forming the subject matter for the charge or the document attached as proof of evidence: UGO-NGADI vs. FRN (2018) LPELR (43903) 1 at 36-37. In the context of this matter, the consideration is the nature of the charge, id est, forgery and not the transaction (Chieftaincy of Epe Kingdom) forming the subject matter of the Charge. InEZE vs. FRN (supra) at 529 or (1987) LPELR (1193) 1 at 35-36, Oputa, JSC asseverated:
“What really was the complaint against the appellant? It is uttering a false document. If any person knowingly and fraudulently utters a false document, he

commits an offence … The nature of the document forged or falsified may go to punishment but it is otherwise immaterial to the offence disclosed … In other words, in determining jurisdiction in regard to the offence or offences charged in the information, the character and nature of the document alleged to be falsified and uttered is irrelevant.”
It therefore follows that the Appellant’s submission as to the character and nature of the document alleged to have been forged and uttered being in respect of chieftaincy tussle in Epe Kingdom is on quicksand. The quicksand cannot support the weight of the Appellant’s submission. The contention is irrelevant in ascertaining the jurisdiction of the lower Court.
Let me iterate that the Appellant was charged with forgery and uttering punishable under Section 1 (2) (c) of the Miscellaneous Offences Act. By Section 251(1) of the 1999 Constitution, the lower Court in addition to the jurisdiction conferred upon it by the said provision, shall have such other jurisdiction as may be conferred upon it by an Act of the National Assembly. The Miscellaneous Offences Act is an Act of the National

Assembly, so jurisdiction being statutory, and the Constitution having provided that an Act of National Assembly can confer such other jurisdiction on the lower Court, then the lower Court can exercise such other jurisdiction conferred on it by such an Act of the National Assembly, in addition to the jurisdiction conferred by the Constitution. There is no conflict between the Constitution and an Act of National Assembly conferring other jurisdiction on the lower Court in order to invoke the supremacy of the Constitution under Section 1 (3) of the Constitution as argued by the Appellant. After all, it is the Constitution that has sanctioned for an Act of the National Assembly to confer such other jurisdiction on the lower Court.
It is hornbook law that the object of interpretation of a statute is to discover the intention of the legislature, which intention is usually deduced from the language used in the statute. Where the words used are clear and unambiguous, they must be given their ordinary plain meaning so as to avoid reading into the provision, meanings not intended by the lawmakers. By implication, where the words used in the provision are clear and

unambiguous, the question of interpretation does not arise as there is nothing to be interpreted or construed since the Court is under the bounden duty to assign the words used in the provision their ordinary plain meaning. Put differently, the general rule of interpretation of statutes is that where the words of the statute are plain, clear and unambiguous, the Court shall give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the Court may seek internal aid within the body of the statute itself or external aid from statutes in pari materia in order to resolve the ambiguity or avoid doing injustice. The authorities for this trite law are legion. I will mention a few. See OGBUNYIYA vs. OKUDO (1979) 6-9 SC 32, MOBIL (NIG) LTD vs. FBIR (1977) LPELR (24896) 1 at 22, OJOKOLOBO vs. ALAMU (1987) LPELR (2392) 1 at 10, ABUBAKAR vs. NASAMU (2012) LPELR (7826) 1 at 34-35, ABEGUNDE vs. ONDO STATE HOUSE OF ASSEMBLY (2015) LPELR (24588) 1 at 41 and GANA vs. SDP (2019) LPELR (47153) 1 at 45.
Section 1 (1) of the Miscellaneous Offences Act, the law under which the Charge was preferred against the Appellant,

stipulates as follows:
“1 (1)The Federal High Court shall have power to try any person for any of the offences specified under this Section and to impose the penalty relating thereto.”
The words employed in the above stipulation are plain, clear and unambiguous. The Court is obligated to give effect to the literal meaning of the words, which words univocally confer jurisdiction on the lower Court in respect of the trial of offences under Section 1 of the Miscellaneous Offences Act.
The Charge preferred against the Appellant is punishable under Section 1 (2) (c) of the Miscellaneous Offences Act. So it comes within the offences in which jurisdiction has been conferred on the lower Court by Section 1 (1) of the Miscellaneous Offences Act. In ONWUDIWE vs. FRN (2006) 10 NWLR (PT 988) 382 at 425, Tobi, JSC stated:
“In criminal law and the administration of criminal justice, the determination of jurisdiction will be taken in the light of the enabling law setting out the jurisdiction of the Court vis-a-vis the charge preferred against the accused. In other words, in order to have jurisdiction the Court must be satisfied that the

offence or crime is directly donated by the jurisdiction conferred on the Court in the enabling law. Where the offence or crime is outside the enabling law, the Court cannot exercise jurisdiction because it lacks jurisdiction to do so.”
I gave due consideration to the Appellant’s invocation of the ejusdem generis rule of interpretation in paragraph 4.1.15 of the Appellant’s Brief where it is submitted that “any forged document” in Section 1 (2) (c) must be documents relating to or in connection with banks, banking, bill of exchange and promissory note. I am neither enamoured nor enthused by the submission. Section 1 (2) (c) of the Miscellaneous Offences Act stipulates as follows:
“(2) (c) makes or utters any forged document, cheque, promissory note or other negotiable instrument, knowing it to be false or with intent that it may in any way be used or acted upon as genuine, whether in Nigeria 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 or thing, whether in Nigeria or elsewhere,”

In the above provision, the sign or punctuation (,) is employed after document, before the words cheque, promissory note or other negotiable instrument is mentioned in the provision. The Chambers 20th Century Dictionary defines comma (,) as “in punctuation, the point (,) that marks the smallest division of a sentence: the smallest interval, break, discontinuity.” Equally the Oxford Advanced Learners Dictionary defines comma (,) as “the mark (,) used to separate the items in a list or to show where there is a sight pause in a sentence.” The online dictionary, Dictionary.com LLC, defines comma as follows:
“the sign (,), a mark of punctuation used for indicating a division in a sentence, as in setting off a word, phrase, or clause, especially when such a division is accompanied by a slight pause or is to be noted in order to give order to the sequential elements of the sentence. It is also used to separate items in a list…”
It seems to me that the comma (,), appearing after the word document in the aforesaid Section 1 (2) (c) of the Miscellaneous Offences Act has been used to set off the word document from the rest of

the items specifically mentioned, id est, cheque, promissory note or other negotiable instrument; thus denoting that forged document is not to be interpreted as the same genus as the other items mentioned after the break or division in the sentence which the comma (,) provided. The stipulation of Section 1 (2) (c) of the Miscellaneous Offences Act can therefore not be given the slant contended by the Appellant. The Section makes provision for the offence of forging a document. The settled law is that the character and nature of the document alleged to be falsified or the transaction forming the subject matter of the charge is irrelevant: UGO-NGADI vs. FRN (supra) and EZE vs. FRN (supra).
In upholding its jurisdiction to entertain the Charge against the Appellant, the lower Court reasoned and held as follows at pages 421-424 of the Records:
“Now to begin with the first issue raised on jurisdiction, the argument of the defence counsel is that the law under the miscellaneous offence Act deals only on case involving negotiable instruments. The law under which the defendant is charged before the Court is S.1 (2) (c) of the Act which states

thus:-…
The law above states ‘Any person who makes or utters any forged document’ Underlining is mine. It further provides other [sic] items such as cheques, and promissory note or other negotiable instrument.
My understanding of the intendment of the legislature here is that it applied to any document as the law provides while including negotiable instruments as an addition.
Secondly the defence counsel cited Section 251 (2) & (3) of the Constitution pertaining to treason and criminal causes and matters related to Section 251 (1) as conferred on the Federal High Court. Meanwhile counsel to the defendant had neglected to read beginning of Section 251 …
… the law provides for “such other jurisdiction as may be conferred” on the Federal High Court via an Act of the National Assembly. I believe the miscellaneous offences Act is an Act of the National Assembly and same have conferred jurisdiction on the Federal High Court for offences created therein via Section 1 (1) of the same law.
Thirdly Section 1(1) of the Miscellaneous Offences Act provides that: …
The law gives the

Federal High Court the jurisdiction to try the offences provided in the Act with particular reference to forgery or uttering of any document. The issue of chieftaincy as mentioned by counsel to the defendant in his submissions bears no relevance to the current proceedings. The issue before the Court is bothered [sic] on forgery and uttering of the minutes of meeting. The argument of counsel that the law only applies to negotiable instruments, cheques or promissory notes is of no moment and it is accordingly discountenanced. This Court has jurisdiction to entertain the action and I so hold.”
The decision of the lower Court upholding its jurisdiction is the correct decision. I have also insightfully examined the Charge against the Appellant and there can be no doubt whatsoever that the offences the Appellant was charged with are within the jurisdiction conferred on the lower Court by Section 1 (1) of the Miscellaneous Offences Act: See OGUNBODEDE vs. FRN (supra). Indubitably, this issue number one is resolved against the Appellant. The Federal High Court had jurisdiction to try the Appellant on the Charge upon which the Appellant was arraigned before

the lower Court.

ISSUE NUMBER TWO
Whether the lower Court was right in holding that the Respondent has made out a prima facie case to warrant the Appellant to enter a defence to the charge

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that a no case submission can be made and upheld where there is no evidence led to prove an essential element of the offence charged and/or when the evidence adduced is discredited during cross examination or is so manifestly unreliable that no reasonable Court or Tribunal can safely convict on it. The cases of ATOYEBI vs. FRN (2018) 5 NWLR (PT 1612) 350, ADEYEMI vs. THE STATE (1992) 6 NWLR (PT 195) 1 and OWONIKOKO vs. THE STATE (1990) 7 NWLR (PT 162) 381 were referred to. It was stated that the essential element in the charge of forgery is that the accused forged the document vide IDOWU vs. THE STATE (1992) 9 NWLR (PT 265) 260, but that there is no direct concrete definitive evidence that the Appellant forged the document. It was asserted that the evidence adduced was the mere suspicion that the Appellant forged the document, but that suspicion cannot found conviction. The case of

AL-MUSTAPHA vs. THE STATE (2013) 17 NWLR (PT 1383) 350 at 413 was relied upon.

It was posited that there was no evidence that the content of the document was false or untrue. It was maintained that since the essential ingredients of the offences charged were not established, the Prosecution failed to make out a prima facie case for the Appellant to defend. It was stated that evaluation of the evidence will disclose that the evidence adduced did not link the Appellant to the offences in order to make it mandatory for him to enter upon his defence.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that at the stage of no case submission, the Prosecution only needs to adduce sufficient evidence to make out a prima facie case, not proof beyond reasonable doubt and that no issue of credibility of witnesses arises as the Court is not to believe or disbelieve any witness. The cases of ONAGORUWA vs. THE STATE (1993) 7 NWLR (PT 303) 43 and OKAFOR vs. THE STATE (2016) ALL FWLR (PT 824) 130 were cited in support. It was stated that once a prima facie case is made out, the accused must enter upon his defence vide DABOH vs. THE STATE

(1977) 5 SC 179, THE STATE vs. AUDU (1986) VOL. 1 QLRN 226 and AJIDAGBA vs. IGP (1958) NSCC VOL. 120 [no page stated].

It was asserted that the Appellant having been seen with the forged document and making use of the same, leaves no doubt that he is responsible for the forged and uttered document. The cases of SMART vs. THE STATE (1974) 11 SC 173 at 185, AWOBOTU vs. THE STATE (1976) SC 49, OSONDU vs. FRN (2000) 12 NWLR (PT 682) 483 and AWOSIKA vs. IGP (1968) 2 ALL NLR 338 at 339-340 were called in aid. It was opined that the issue before the lower Court was not a chieftaincy tussle but forgery and uttering of a document and that the Prosecution led evidence in respect of the offences charged.

The Respondent further submitted that a prima facie case is made out when the evidence led establishes the essential elements of the offence and the evidence is not discredited by cross examination, and is not such that no reasonable Court or tribunal can convict on it. It was maintained that the prima facie case made out showed a ground for proceeding. The cases of IKOMI vs. THE STATE (1986) 5 SC 313, UDEOGU vs. FRN (2016) ALL FWLR (PT 837) at 598-600 and

ABACHA vs. THE STATE (2002) FWLR (PT 98) 863 were relied upon. It was conclusively submitted that the evidence against the Appellant was weighty and credible and that the justice of the case required the Appellant to enter upon his defence.

RESOLUTION OF ISSUE NUMBER TWO
There is nothing abstruse or esoteric about a no case submission. Indeed there is a surfeit of authorities on the principle that it has become banal and exoteric. The essence of a no case submission is that the evidence the Prosecution led had not made out a prima facie case to require the defendant to enter upon a defence of the Charge. Sections 302 and 303 of the Administration of Criminal Justice Act stipulate as follows:
“302. 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 them to enter his or their defence and the defendant shall accordingly be discharged and the Court

shall call on the remaining defendant, if any, to enter his defence.”
“303.(1) Where the defendant or his legal practitioner makes a no case submission in accordance with the provisions of this Act, the Court shall call on the prosecutor to reply.
(2) The defendant or his legal practitioner has the right to reply to any new point of law raised by the prosecutor, after which, the Court shall give its ruling.
(3) In considering the application of the defendant under Section 303, the Court shall, in the 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 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.”
By the above provision, a Court after hearing the evidence for the Prosecution, may, where it considers that the evidence is not sufficient to justify

the continuation of the trial, discharge the defendant. In reaching the decision on whether the evidence is sufficient or not to justify the continuation of the trial, the Court shall consider whether an essential element of the offence has been proved, whether there is evidence linking the defendant to the commission of the offence, whether the evidence is such that no reasonable Court or tribunal would convict on it and whether there is any other ground on which a Court may find that a prima facie case has not been made out against the defendant in order to call upon him to answer.
Put differently, a no case submission can be made and upheld where at the close of the evidence in support of the Charge, it appears to the Court that a case has not been made out against the defendant sufficiently to require him to make a defence. 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, UBANATU vs. COP (2000) 1 SC 31 at 36-37 and UMEZULIKE vs. CHAIRMAN, EFCC (2017) LPELR (43454) 1 at 18-19.
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 prima facie case is not made out against the defendant for him to be called upon to answer. The Practice Direction of Parker, L. C. J. issued by the Queen’s Bench Division of the High Court of England dated 9th February 1962 and contained in (1962) 1 All E. R. 448 on when to make a no case submission has for long served as a

guide and has been generally applied by the Courts over the years in determining if the evidence against the defendant is sufficient to require him to make a defence. The Practice Direction provides:
“A submission that there is no case to answer may properly be made and upheld:
a) when there has been no evidence to prove an essential element in the alleged offence,
b) 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 can convict on it.”
See UBANATU vs. COP (supra), OHUKA vs. THE STATE (1988) 7 SC (PT 3) 25 at 26 and EMEDO vs. THE STATE (2002) 7 SC (PT 2) 162 at 164.
The conditions set out in the Practice Direction are not cumulative. Once any one of these conditions namely: (i) that an essential element has not been proved, (ii) that the evidence has been discredited by cross-examination, and (iii) the evidence adduced is manifestly unreliable exists, then a no case submission can be properly made and upheld. See UBANATU vs. COP (supra) at 38, 43, 44 and 53. These are some of the conditions which a Court usually

takes into consideration in arriving at a decision on a no case submission and indeed they are in consonance with the latter day stipulations in Sections 302 and 303 of the Administration of Criminal Justice Act. See KALU vs. IGP (2017) LPELR (42857) 1 at 40 and FRN vs. SARAKI (2017) LPELR (43392) 1 at 40.
It is rudimentary law that a decision of a Court to overrule a no case submission is not a decision on the substantive case. At that stage, the defendant has not led evidence in his defence; the case has not been concluded. The Court therefore expresses no opinion on aspects of the case to which the defendant has not replied or rebutted in order not to fetter its discretion. The Court is not to make any observation on the facts of the case. See EMEDO vs. THE STATE (supra) at 204-205 and AJIBOYE vs. THE STATE (1995) 8 NWLR (PT 414) 408 at 413. As a matter of fact, in ODOFIN BELLO vs. THE STATE (1967) NMLR 1, the Supreme Court warned against a ruling of inordinate length as it might serve to fetter the discretion of the Court. The Supreme Court counselled that it is wiser for the Court to be brief and make no observation on the facts of the case; indeed

the Court should refrain from expressing any opinion on the evidence already adduced. See THE STATE vs. AUDU (supra).
In dismissing the no case submission, the lower Court reasoned and held as follows at pages 426-427 of the Records:
“At the stage of prima facie case, the Courts are admonished not to make any remarks or observations on facts. See Odofin Bello v. The State (1967) NWLR [sic] 1 A Prima facie case is said to be made out where there is ground for proceeding when the evidence before the Court is such that if uncontradicted and if believed will be sufficient to prove the case against a defendant. See Fidelis Ubanatu v. C.O.P. (2000) LPELR 3280 (S.C) per Ogwegbu [sic] JSC.
The Supreme Court in EMEDO & ORS V. THE STATE (2002) LPELR 1123 (S.C.) held on ruling on no case that:-
‘It is not the judge’s job, at that stage, 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.’ per Mohammed JSC.
From what the prosecution has so far established by the evidence before the Court, it is imminent that the

defendant herein provides some explanations. Hence I find that there is established before the Court a prima facie case for both offences of uttering and forgery contrary to Section 1(2)(c) of the Miscellaneous Offences Act Cap M17 LFN 2004. The defendant will therefore be given opportunity to prepare for the defence while hearing shall continue on the next adjourned date.”
The approach of the lower Court to the resolution of the no case submission eloquently demonstrates the appreciation and application of the law in that regard. In AJIBOYE vs. THE STATE (supra), it was held that what has to be considered in a no case submission is not whether the evidence against the defendant is sufficient to justify conviction but whether the Prosecution has made out a prima facie case requiring at least some explanation from the defendant. In EKWUNUGO vs. FRN (2008) LPELR (1105) 1 at 7, the apex Court held that the question whether or not the Court believes the evidence led does not arise at that stage of the proceedings. The credibility of the witness also does not arise at that stage. This is because the trial of the case had not been concluded at that

stage. It is for this reason that the Court should not concern itself with the credibility of witnesses or the weight to be attached to the evidence. The obligatory duty on the Court at this stage is not to find if there is sufficient evidence to justify the conviction of the defendant, it is merely to ascertain from the evidence adduced by the Prosecution, whether a prima facie case had been made out against the defendant, in order to require him to offer some explanation in defence. The trial Court is therefore not expected to evaluate and analyse the evidence with the finery of a toothcomb as would be done at the stage of writing final judgment. The trial Court is not even to make any observation on the facts placed before him: EMEDO vs. THE STATE (supra) and ADAMA vs. THE STATE (2017) LPELR (42266) 1. It is for this reason that I am unable to agree with the submission in paragraph 4.2.18 of the Appellant’s Brief “that in evaluating the evidence led by the prosecution, this Honourable Court will find that both oral and documentary evidence presented by the Respondent ad[sic] four (4) witnesses did not in any way whatsoever linked [sic] the

Appellant with the offences charged to make it mandatory for him to enter his defence.” No! That is not the law. We are not yet at the stage for evaluation of evidence in order to attach weight to the evidence. See IKUFORIJI vs. FRN (2018) LPELR (43884) 1 at 34-36.
Given the settled legal position as it relates to a decision dismissing a no case submission, it suffices to state that I have considered the evidence adduced as contained in the Records and I am satisfied from the evidence that the alleged forged document was attached to an affidavit deposed to by the Appellant in a civil matter at the High Court of Lagos State, coupled with the testimony of the forensic experts (PW3 & PW4) that the signature on the alleged forged document is not that of the PW1 and PW2 which it is supposed to be; that it sufficiently links the Appellant to the offences charged, making it necessary for him to give an explanation. Put simply, the evidence adduced by the Prosecution cannot just be waved off or wished away without hearing from the Appellant. Paucis verbis, a prima facie case was made out by the Prosecution, sufficient enough to justify the continuation

of the trial in order for the Appellant be called upon to answer. See ATOYEBI vs. FRN (2017) LPELR (43831) 1 at 16 and 30-32. Ineluctably, this issue number two is resolved in favour of the Respondent.

SUMMATION
The two issues distilled for determination have been resolved against the Appellant. This signifies that the appeal is bereft of any merit. Accordingly the appeal fails and it is hereby dismissed. The Ruling of the lower Court, Coram: Anka, J., delivered on 14th September 2018 is hereby affirmed. The Appellant is to enter upon his defence in the two count Charge preferred against him.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA and I adopt the judgment as mine with nothing further to add.

EBIOWEI TOBI, J.C.A.: I have read in advance the draft leading judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA, and I am in tandem with his reasonings and the conclusions reached therein. Section 303(3) of the Administration of Criminal Justice Act places the grant or refusal of an application on a no case submission at the

discretion of the Judge. All that is required of the judge exercising the discretion is to be satisfied that there are questions which the Defendant (Appellant in this present appeal) needs to proffer answers to. See Okafor Vs. State (2016) LPELR-26064 (SC); Adama vs. State (2017) LPELR-42266 (SC). Being an exercise of discretion, this Court being an appellate Court will not substitute its discretion in the place of that of the learned trial Judge, in so far as same is exercised judicially and judiciously. See Adaramaja vs. Adaramaja (1962) LPELR-25011 (SC).

I have gone through the record of appeal containing all the processes filed to the lower Court and the judgment of the learned trial Judge, and I do not see any reason to overturn or substitute my discretion for that of the learned trial judge. It is for this reason and the fuller reasons contained in the leading judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA, that this appeal is lacking in merit and fails in its entirety. The ruling of the learned trial judge overruling the no case submission of the Appellant is hereby upheld.

Appearances:

Oludele Adegboyega Adeogun, Esq. For Appellant(s)

Chukwu Agwu, Esq. For Respondent(s)