EKWUGHA v. STATE (2020)

EKWUGHA v. STATE

(2020)LCN/14548(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Wednesday, August 05, 2020

CA/OW/576C/2018

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

JAPHETH CHINWENDU EKWUGHA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT AN ACCUSED PERSON IS PERSON IS PERMITTED TO MAKE A NO-CASE SUBMISSION

By Section 286 of the Criminal Procedure Act, an Accused person is permitted to make a NO CASE SUBMISSION at the end of the prosecution’s case, at the trial, if Counsel for the Accused person, thinks that no prima facie case has been made out, to warrant calling on the Accused person to enter his defence. The trial Court is also enjoined, to invoke that provision, on its own, if the Accused person does not raise it, if at the end of the prosecution’s case, no prima facie case is established against the Accused person. See Olaofe vs FRN (2018) LEPLR – 45319 (CA); Chyfrank Nigeria vs FRN (2019) LPELR – 46401 (SC); Ekwunife Vs FRN (2018) LPELR – 44897 CA.
The said Section 286 states:
“At the close of the evidence in support of the charge, if 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.”
That provision has enjoyed several judicial interpretation, application and enforcement, as generously, cited by Counsel on both sides in this Appeal. See the case of Adama Vs The State (2017) LPELR — 42266 (SC), wherein the Supreme Court stated and guided the trial Court on the proper approach to considering a No Case Submission, and ruling thereon, thus:
“In Abogede Vs The State (1996) NWLR (Pt.118) page 270 at 280, the Supreme Court held that:
When a Court is giving consideration to a submission of no case, it is not necessary at that stage of the trial for the Learned trial Judge to determine if the evidence is sufficient to justify conviction. The trial Court only has to be satisfied that there is a prima facie case requiring at least some explanation from the accused person” see also R vs Ogucha (1959) 4 FSC Pg.64. In Shatta vs FRN (2009) 3 NCC 527 the Court of Appeal held that:
“Without going into the credibility of the witnesses called by the prosecution, but based on the evidence presented before the trial Court it is my view that the Court does not have to believe the evidence adduced by the prosecution at this stage but the issue to be determined is that if the case for the prosecution is believed, is there anything for the prosecution to explain.” PER MBABA, J.C.A.

THE MEANING OF A PRIMA FACIE CASE
In Aduku vs FRN (2009) 4 NCC 350, on the meaning of prima facie case, the Court of Appeal had this say:
“what is meant by prima facie case? It only means that there is a ground for proceedings… but a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is finally guilty or not… and the evidence discloses prima facie case, when it is such that un-contradicted and if believed it will be sufficient to prove the case against the accused.” See on this Dr. Olu Onagoruwa Vs The State (1993) 7 NWLR (Pt.303) 49 at 80 – 83… It is the judges duty, however, when a submission of no case to answer is made to discharge an accused, where the evidence adduced by the prosecution does not disclose the necessary minimum evidence establishing the facts of the crime charged. In doing so, the judge, does not write judgment. It is not the judges job, at that stage, to weigh and evaluate evidence or who is lying and is not to conclude that the prosecution is unreliable.”See also Ekwunugo vs FRN (2008) LPELR – 1105 (SC); DPP VS Akpan (2018) LPELR – 44047 (CA); Medinat vs C.O.P. (2017) LPELR – 43292 (CA).
The practices and law is that, No Case Submission is allowed and considered, when at the end of the evidence by the prosecution witness(es), no legally admissible evidence for the offence with which the defendant has been charged, is made out to necessitate calling on the Accused person (defendant) to defend himself, or state his own side of the story; or that whatever evidence that the prosecution has disclosed to link the defendant has been so discredited and watered down by cross examination that no reasonable Court or tribunal can rely on it to convict the defendant (accused person). See the case of Tongo and Anor Vs C.O.P. (2007) LPELR – 3257 (SC); (2007) 12 NWLR (Pt.1049) 525; Daboh & Anor vs State (1977) LPELR – 904 (SC).
In the case of C.O.P. Vs Amuta (2017) LPELR — 41386 (SC), the Supreme Court, again, said:
“It is settled law that a submission that there is no case to answer by an accused person means that there is no evidence upon which, even if the Court believed it, it could convict. In other words, where there has been no evidence to prove an essential elements of the offence, or where the evidence adduced by the prosecution has been so discredited as a result of cross examination, or is so manifestly unreliable that no reasonable Court or Tribunal can safely convict on it. At the stage when a no case submission is made, the trial Court is not called upon to express an opinion on the evidence before it. The credibility of the witnesses is not in issue at this stage. All that the Court is required to do is to determine whether or not there is any legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the Record. (See Daboh vs The State (1977) ALL NLR 146, per Udo Udoma, JSC).”
Of course, once a no case submission is made, the trial Court is expected to rule on it, whether or not a prima facie case has been disclosed, to warrant calling on the Accused (Defendant) to enter his defence in the case. The trial Court is not expected to query the Counsel for making the no case submission, and cannot decline to take the address, or refuse to consider it. The trial Court cannot coerce the Accused person to drop the no case submission and/or force him to rely on it. Also, a Counsel worth his name, who knows what to do, cannot be cowed by the disposition of the trial Court to drop his no case submission, simply because the trial Court does not seem favourable to it, and he (Counsel) cannot also be intimidated to rely on the no case submission (rest on it), at the expense of his client (Accused person), if he (Counsel) does not believe in the efficacy or outcome of the No Case Submission. PER MBABA, J.C.A.

WHETHER OR NOT DENIAL OF FAIR HEARING ARISES WHERE A PARTY REFUSES TO UTILIZE THE OPPORTUNITY GIVEN TO HIM TO PRESENT HIS CASE

Denial of fair hearing does not arise where a party refuses to utilize the opportunity given to him to present his case and/or be heard. Nwokocha Vs A.G. Imo State (2016) LPELR – 40077 (SC); Ahmed vs Ahmed & Ors (2013) LPELR – 21143 (SC); Emekpu vs A.G. Fed. (2018) LEPLR – 49350 CA; Eze Vs FRN (2017) LPELR 42097 SC; NAFDAC Vs ONWUKA (2013) LPELR – 22316 CA; The Gov. of Imo State & Ors Vs E.F Network Nig. Ltd & Anor (2019) LPELR – SC:1001/2016 (SC). PER MBABA, J.C.A.

THE DEFENCE OF SELF-DEFENCE

This is because in self defence the measure of force used in warding off any danger posed to a party acting in self defence, must be commensurate with the threat posed by the attacker. See Fulani M. vs The State (2018) LPELR – 45195 (SC); Afosi vs State (2013) LPELR –20751 (SC); Uwagboe vs The State (2008) LPELR – 3444 (SC):
“The defence of self defence is open only to an accused person who is able to prove that he was a victim of an unproved assault, causing him reasonable apprehension of death or grievous harm. But he is even entitled to use such force to defend himself as he believes on reasonable grounds to be necessary to preserve him from danger.”
See also Joseph Vs The Nigerian Navy (2020) LPELR — 49692 CA, where the conditions to invoke self defence were outlined, and the same are not available to the Appellant in this case. In that case, Barka JCA, said:
Defence of self defence “would have been available to the Appellant, where, at the time the accused person was said to have killed the deceased, a reasonable apprehension of death or grievous harm, and the belief by the accused that the act of killing was necessary in order to save his own life. It must be spontaneous reaction by the accused to an unprovoked attack, to ward off or avoid the said attack against him and to defend himself from further attack. See Jeremiah Vs The State (2012) 14 NWLR (Pt.1320) 248; Omoregie vs The State (2008) 18 NWLR (Pt.1119) 464; Famakinwa Vs The State (2016) 11 NWLR (pt.1524) 538; Baridam vs The State (1994) 1 NWLR (Pt.320) 262; Saheed vs The State (2018) LPELR 46675 (CA); Sule Vs The State (2018) LPELR — 46110 CA.”PER MBABA, J.C.A.

ESTABLISHING THE OFFENCE OF MURDER

By law, offence of murder (or any crime) can be proved by credible evidence of eye witness(es) of the commission of the offence, or by circumstantial evidence, which is cogent, positive and complete, linking the Accused person to the commission of the offence, or by confessional statement of the accused, voluntarily, made and adjudged so. See the case of Dada Vs State (2017) LPELR – 43468 (SC); Adesina & Anor vs The State (2012) LPELR – 9722 SC; State vs Isah (2013) 8 NCC 320; Okeke vs State (1999) 2 NWLR (Pt.590) 246; Akinsuwa vs The State (2019) LPELR – 47621 SC; State vs Sunday (2019) LPELR – SC:709/2013; Tobi Vs State (2019) LPELR — 46537 SC. PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this Appeal on 3/6/2013 to appeal against the decision of the Imo State High Court in Charge No. HOW/42C/2011, delivered on 7/3/2013, wherein the Learned trial Judge Hon. Justice Ngozi Opara, convicted the Accused person (now Appellant) for murder and sentenced him to death, by hanging.

The Charge (Information) against the Appellant, at the trial Court, was:
STATEMENT OF OFFENCE
MURDER, Contrary to Section 319(1) of the Criminal Code, Cap. 38 Laws of the Federation of Nigeria, 2004 as applicable in Imo State of Nigeria.
PARTICULARS OF OFFENCE:
JAPHETH CHINWENDU EKWUGHA on the 26th day of March, 2010 at Mumuobo Nnorie in Ngor Okpala Local Government Area, within Owerri Judicial Division, Murdered one James Nwaeke Okoronkwo.”

Upon arraignment, Accused (Appellant) pleaded “Not Guilty” to the Charge. The prosecution called 2 witnesses and tendered exhibits — 1 to 4. The Accused person (Appellant) called no evidence, but made a “NO CASE SUBMISSION” on 12/11/2012, and rested his case on that of the Prosecution. After considering the

addresses of Counsel and the evidence, the trial Court held:
“I am really taken aback and I cannot find any reasonable rationale in the defence Counsel embarking on this desperado. In the face of Exhibits 1 and 4 which were admitted before him (sic) without objection, he still went for a no case submission, and relied on it. I must say he toyed with his defence and the life of his client — the accused. It is not enough to postulate and cite cases and statutes, without tying them or linking them to facts before the Court. Litigation is more than a game of chance. In this case, defence Counsel tried, as it were, to test the dept (sic) of the river with his two legs — a very foolish thing to do. The net result is that the facts before me and the submissions of both state and Defence, the State has discharged its duty and the accused is hereby found guilty as charged.” See page 70 of the Records of appeal.

On Alocutus, the Appellant said: “I did not do anything. am not begging for anything. “(Page 70 of the Records).

Aggrieved by the judgment, Appellant filed this Appeal. He filed Amended Notice of Appeal on 21/6/2019, and raised two

grounds of Appeal namely (without their particulars):
“GROUND ONE:
The learned Trial Judge erred in law in convicting the Appellant for murder, without considering and examining all the defences open to the Appellant on the Records.
GROUND TWO:
The Learned Trial Judge erred in law when he held that “this Court will not dance to the tune of the Counsel for the accused. Either he relies on his no case submission or puts his client for defence. The Court will not indulge in his hide and seek. No two judgments will be written. Counsel for the Accused once again relinges (sic) says he now relies on his no case submission” and thereby convicted the Appellant on the basis of his no case submission.”

Appellant filed his Brief of Arguments on 15/10/2019 and a Reply Brief on 6/2/2020, which was deemed duly filed on 15/6/2020. In the Appellant’s Brief, he formulated two Issues for the determination of the Appeal, as follows:
(1) Whether the Appellant suffered any miscarriage of justice when the Court below refused to consider the several defences available to the Appellant on the Records before convicting him? (Ground one)

(2) Whether the Appellant was denied a fair hearing by the Lower Court and whether the Lower Court judgment against the Appellant, on the basis of a no case submission, occasioned a travesty of justice by the said denial of fair hearing? (Ground two)

The Respondent filed its Brief on 9/1/2020, which was deemed duly filed on 15/6/2020. Respondent distilled Two Issues too for the determination of the Appeal, as follows:
(1) Whether the trial Court was right in holding that the prosecution (Respondent) lifted its burden of proving the essential ingredients of the offence of murder against the Appellant.
(2) Whether the trial Court did what it should do before it convicted the Appellant (the Accused person) who rested his case on his “no case submission.”

Arguing the Appeal, on 9/7/2020, Appellant’s Counsel Kelechi Obi, Esq, (who settled the Brief), on Issue 1, relied on Section 316(1) of the Criminal Code, for the meaning and particulars (ingredients) of offence of murder — that:
(a) The offender intended to cause death of the person killed or that of someone else.
(b) The offender intended to do the person killed or some other person some

grievous harm.
(c) The act or omission of the accused, which caused the death of the deceased, was intentional with knowledge that its probable consequence.

He added that there must be proof of death; that the accused person caused the death and did so intentionally. Counsel also relied on Ogba Vs The State (1992) 2 NWLR (Pt.222) 164; Monday Nwaeze Vs The State (1996) 4 NWLR (Pt.143?) 375; Gira vs The State (1996) 4 NWLR (Pt.443) 375 and Kada vs State (1991) 11/12/SC 1. He added that the above ingredients must co-exist, before the prosecution can be said to have proved the charge, and relied on Haruna Vs A.G. Federation (2012) 9 NWLR (Pt.1306) 422; Ubani vs State (2003) 18 NWLR (Pt.851) 224; Anyanwu Vs State (2012) 16 NWLR (Pt.1326) 221.

Counsel submitted that on a calm evaluation of the evidence led at the trial Court, the prosecution failed to prove the charge beyond reasonable doubt. He argued that, though there was proof of the death of the deceased, there was no proof that Appellant was the cause of the death or that the death was attributable to the act or omission of the Appellant. He relied on R Vs Abengowe 3 WACA 85; Ozo Vs The State (1971) 1 ALL NLR

111; Omogodo Vs The State (1981) 5 SC 5; Akinfe vs State (1988) 3 NWLR (Pt.85) 729; Frank Onyenankeya vs The State (1964) 1 ALL NLR 151.

Counsel added that the trial Court did not consider all the defences available to Appellant before convicting him. He relied on Umani Vs The State (1988) 1 NWLR (Pt.70) 274; Njoku Vs The State (1993) 7 SCNJ (Pt.1) 36 at 41. Counsel said there was evidence (as per Appellant’s statement to the Police) that there was altercation between Appellant and the deceased; the deceased attempted to hit the Appellant with a stick, and in retaliation, Appellant struck him (deceased) with a machete that he was working with; that Appellant had stated in his Statement that he did not intend to kill the deceased and only acted in self defence. Counsel said that the statement of Appellant (Exhibits 1 & 4) established a case of self-defence; that that evidence was part of the Records for the Court to act on. He relied on some authorities, including Uzodinma Vs Izunazo (No.2) (2011) 17 NWLR (Pt.1276) 30 at 75; Oyewole Vs Akande (2009) 15 NWLR (Pt.1163) 119; Akinola Vs V.C. Unilorin (2004) 11 NWLR (Pt.885) 616; NJC vs Aminu (2012) 6 NWLR

(Pt.1302) 300.

On self-defence, Counsel relied on Liya Vs The State (1998) 2 NWLR (Pt.538); Kwaghsir vs State (1996) 3 NWLR (Pt.384) 651; Omoregie vs The State (2008) 12 SCM (Pt.2) 599; Laoye vs The State (1985) LPELR -1754 SC.

On Issue 2, whether Appellant was denied fair hearing, when the Court convicted him on the basis of a no case submission, which he relied on; whether that did not occasion miscarriage of justice, Counsel answered in the affirmative, and said that the trial Court was wrong to deliver a judgment instead of a ruling, on the “no case submission” and convicted Appellant, sentencing him to death. Counsel reproduces the proceedings on page 46 of the Records, as to what transpired at the Court on 12/11/2012, wherein it was stated:
“Counsel for accused makes a no case submission.
Further adjourned to the 15th day of November, 2012 for adoption of address. Counsel now changes his mind, says he will no longer rely on the No Case Submission.
Court: this Court will not dance to the tune of the Counsel for the accused. Either he relies on his No Case submission or puts in his client for defence. The Court will not indulge in

his hide and seek. No two judgments will be written.
Counsel for the accused once again rewinges (sic) says he now relies on his no case submission. Stands adjourned to the 14th day of November, 2012.”

Counsel said that, contrary to the above holding of the trial Court, that decision (judgment) of the trial Court was based on wrong principles and the trial Court acted in error, to convict and sentence the Appellant on the basis of a No Case Submission; that the Court misapplied the principle on no case submission, and accordingly, constrained and denied the Appellant his unfettered right to fair hearing, as he was not heard, prior to the Court’s decision to adjourn for judgment. He relied on Momoh Jimoh Medinat vs C.O.P. (2017) LPELR – 43292 CA, on what he called the prescription of law on No Case Submission.

Counsel said that the trial Court had forced Appellant to choose either his no case submission or his defence; that that goes against established principles of law; that that offended Appellant’s right of fair hearing, one of which demands that the Court should not be seen to foreclose parties from presenting their case in the way they see

fit. He relied on NURTW & Anor vs RTEAN & Ors (2012) LPELR – 7840 SC.

Counsel also relied on other cases, including Mohammed vs State (2007) LPELR – 1894 (SC); UBN Plc vs CFAO (Nig) Ltd & Anor (1997) LPELR – 6195 (CA) and FRN Vs Ekwenugo (2007) 3 NWLR (Pt.1021) 209, where it was held:
“After a no case submission, the trial Court ought to give a ruling and not a judgment. If at the close of evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficient to require him make a defence, the Court shall discharge him.”

Counsel said the trial Court erred in its duty, while ruling on the no case submission. He relied on the case of Ossai Emedo & Ors vs The State (2002) LPELR – 1123 SC; Adama vs The State (2017) LPELR – 42266 (SC), where Bage JSC, held:
“In Abogede Vs The State (1996) NWLR (Pt.118) page 270 at 280, the Supreme Court held that:
When a Court is giving consideration to a submission of no case, it is not necessary at that stage of the trial for the Learned trial Judge to determine if the evidence is sufficient to justify conviction. The trial Court only has to be

satisfied that there is a prima facie case, requiring, at least, some explanation from the accused person.”
See also R Vs Ogucha (1959) 4 FSC Pg.64. In Shatta vs FRN (2009) 3 NCC 527 the Court of Appeal held that:
“Without going into the credibility of the witnesses called by the prosecution, but based on the evidence presented before the trial Court, it is my view that the Court does not have to believe the evidence adduced by the prosecution at this stage, but the issue to be determined is that, if the case for the prosecution is believed, is there anything for the prosecution to explain.”
In Aduku Vs FRN (2009) 4 NCC 350, on the meaning of prima facie case, the Court of Appeal had this say:
“What is meant by prima facie case? It only means that there is a ground for proceedings… but a prima facie case is not the same as proof, which comes later when the Court has to find whether the accused is finally guilty or not… and the evidence discloses prima facie case, when it is such that un-contradicted and if believed, it will be sufficient to prove the case against the accused.” See on this Dr. Olu Onagoruwa Vs The State (1993) 7

NWLR (Pt.303) 49 at 80-83… It is the judges duty, however, when a submission of no case to answer is made, to discharge an accused, where the evidence adduced by the prosecution does not disclose the necessary minimum evidence establishing the facts of the crime charged. In doing so, the judge, does not write judgment. It is not the judges job, at that stage, to weigh and evaluate evidence or who is lying and is not, to conclude that the prosecution is unreliable.”

Thus, Counsel said the duty of the trial Court is finite at the stage of the no case submission, to determine whether the prosecution has disclosed prima facie case to warrant calling on the Accused person to defend himself. It neither involves evaluation of evidence, nor consideration of the credibility of witnesses. He relied on Ekwunugo Vs FRN (2008) LPELR — 1105 (SC); DPP Vs Akpan (2018) LPELR – 44047 CA.

He added that the procedure adopted by the trial Court in this matter was perverse and contrary to established principles of law. He said that the principles of Section 36 of the Constitution are mandatory and any breach of same would lead to denial of fair hearing,

consequently, vitiating the trial. He relied on the case of Orugbo & Anor vs Una & ors (2002) LPELR – 2778 SC; FRN vs Akubueze (2010) 17 NWLR (Pt.1223) 625; Ogunsanya vs State (2010) 14 NWLR (Pt.1213) 349.

He urged us resolve the Issues for Appellant and to allow the Appeal, set aside the decision of the trial Court and discharge and acquit the Appellant.

Responding, Learned Counsel for the Respondent, Osita Chukwuemeka, Esq, (who settled the brief) their Issue 1, answered in the affirmative. He said that by law, the prosecution is not bound to call a host of witnesses but enough to ground the conviction. He relied on Buba Vs State (Pt.215) 11; Saidu Vs State (1982) 4 SC 41; he added that one credible witness, whose evidence is material, is enough to ground conviction. See Ekpenyong Vs State (1991) 6 NWLR (Pt.200) 683.

He said that the witnesses called by the prosecution were material, and supplied credible evidence to establish the offence beyond reasonable doubt; he said that establishing offence beyond reasonable doubt does not mean “proof beyond all iota of doubt.” Miller Vs Minister of Pensions (1947) 3 ALL ER 373; Woolminton vs DPP

(1935) AC 4621; Yongo & Anor vs C.O.P. 8 NWLR (Pt.257) 36; see also Sections 131, 132 and 135 of the Evidence Act, 2011.

Counsel listed the various ways of proving offence of murder (or any crime) namely by confessional statement, circumstantial evidence and/or evidence of eye witness of the commission of the offence, relying on Igabele Vs State (2006) ALL FWLR (Pt.311) 1797. He submitted that the prosecution had establish the commission of the offence by evidence of eye witness (PW1), who saw when Appellant stabbed the deceased, and he was confirmed dead on being rushed to the hospital.

On Issue 2, whether the trial Court did what the law said it should do before it convicted Appellant, who rested his evidence on his “no case submission”, Counsel answered in the affirmative. He submitted that, where an accused person merely makes a no case submission without resting on it, the trial Court would write a ruling, not a judgment. He relied on Emedo & Ors vs The State (2002) 13 SCM 61; Atano Vs A.G. Bendel State (1988) 2 NWLR (Pt.75) 201. He submitted that, if in making a no case submission, Counsel for the accused person relies on it,

resting his case on the no case submission (or on the case of the prosecution), as in this case, then he will be at liberty to address on the acts and the laws as well as on the credibility or veracity of the witnesses, which will entitle the Court to deliver judgment. He relied on Atano Vs A.G. Bendel State (supra).

He said that in making a no case submission (founded on Section 286 of the Criminal Procedure Act) and relying on it (resting on the case of the prosecution, the accused person implies that he has not only accepted the evidence led by the prosecution as the infallible truth of what happened, but is also contending that, irrespective of that position, the evidence is not enough to ground conviction against him. Counsel relied on the Igabele vs The State (2005) NCC vol. 1 Page 59 at 74:
“When an accused rests his case on the prosecution, on a “no case submission”, the effect is that he banks his case completely on the evidence adduced by the prosecution. To my mind, he takes a risk, as he must stand or fall upon such evidence adduced by the prosecution. At times it can be perilous to take a risk.”

Counsel also relied on Ajibade Vs The State (2013) 6 NWLR (Pt.1349) 25, where the Supreme, per Ogunbiyi JSC, held:
“In further emphasis and even at the risk of repeating myself, I will restate that an accused person who rests his case on that of the prosecution has taken a gamble and a risk. He has, in other words, shut out himself and will have no one but himself to blame. This is because he does not want to place any facts before the trial Court, other than those which the prosecution has presented in evidence. It also confirms that he does not want to explain any facts or rebut any allegation made against him. The rating of the effect is not less than admission of the evidence led by the prosecution.” See also the case of Magaji Vs Nigerian Army (2008) ALL FWLR (Pt.420) 603 and Igabele Vs State (2005) 1 NCC59.”

Counsel also relied on Ali & Anor Vs The State (1988) 1 SCNJ 17.

Finally, Counsel said that, by the Appellant (Accused person) resting its case on the No Case Submission, in this Case, it was for the trial Court to examine the case, to ascertain if the prosecution had proved the ingredients of the offence, and where the trial Court found that to be so, it could

convict the Accused. He urged us to so hold; that Appellant cannot complain of denial of fair hearing, at this stage, having elected not to lead evidence, by resting or relying on the No Case Submission and adopting the case presented by the prosecution; he said that fair hearing means a trial Court ensures that justice is done to the parties in a case. Egbo Vs Agbara (1997) 1 NWLR (Pt481) 293; Ariori vs Elemo (1983) 1 SCNLR 1; he said that Appellant’s complaint of denial of fair hearing has no basis, as he was given opportunity to present his case, but he dashed it. Counsel relied on Mil. Gov, of Lagos State Vs Adeyiga (2001) FWLR (Pt.83) 2137; Obmiami Brick & Stone Nig. Ltd vs ACB Ltd (1992) 3 NWLR (Pt.229) 260; Ibekendu vs Ike (1993) 6 NWLR (Pt.229) 28.
He urged us to resolve the Issues against the Appellant and to dismiss the Appeal.

In his Reply Brief, Appellant said that the 1st Issue raised by the Respondent for the determination of the Appeal was not founded on the grounds of Appeal by the Appellant and so the arguments were not competent.

On the no case submission, Counsel said the cases of Atano Vs State (supra); Ali Vs State

(supra) and Ajibade Vs State (supra), relied upon by Respondent, are only authorities for what they decided; that the facts of two cases must either be the same, or at least similar before the decision reached in the earlier case, can apply to the later case and even then, it will serve merely as a guide. Thus, the cases are not applicable, as Appellant was forced and pressured by the trial Court into relying on its no case submission.

On the confessional statement by Appellant, Counsel said the trial Court had a duty to consider the same, and the defence open to Appellant in the statement. He relied on Ali Zaman Vs The State (2015) LPELR – 24595 CA, which was founded on the Supreme Court case of Saidu Vs The State (1982) 1 NCLR 49. He urged us again to allow the Appeal.

RESOLUTION OF THE ISSUES
I think the real Issues for determination of this Appeal are:
(1) Whether the trial Court was right to convict the Appellant for murder, upon determining an address of No Case Submission by Counsel, who relied on the said address, and
(2) Whether the trial Court was right to hold that the prosecution had proved the essential ingredients of the

offence of murder of the deceased — James Nweke Okonkwo, considering the fact in Appellant’s Statement to the Police, that he was hit by the deceased with a stick, before he stabbed him (deceased), thus acted in self defence.

Appellant in his Reply Brief had said that Respondent’s Issue 1 did not flow from, or relate to any of the grounds of the Appeal. I do not think that was a correct submission, as the Issue, clearly, derived from the ground 1, whereof, Appellant alleged that:
“The Learned Trial Judge erred in law in convicting the Appellant for murder, without considering and examining all the defences open to the Appellant on the records.”

The Respondent’s Issue, therefrom, was:
“Whether the trial Court was right in holding that the prosecution (Respondent) lifted its burden of proving the essential ingredients of the offence of murder against Appellant.”

Of course, that issue accommodated the allegation that the Court did not consider defences open to the Appellant, and failure to consider the same would, in my opinion, imply that the Respondent (Prosecution) did not discharge the burden of proof, and did not

establish the ingredients of the offence of murder against the Appellant! As a matter of fact, I consider the two Issues by the two parties to be the same, except for semantics, and I adopt them, as modified, above, but in reverse order.

discharge him.”
That provision has enjoyed several judicial interpretation, application and enforcement, as generously, cited by Counsel on both sides in this Appeal. See the case of Adama Vs The State (2017) LPELR — 42266 (SC), wherein the Supreme Court stated and guided the trial Court on the proper approach to considering a No Case Submission, and ruling thereon, thus:
“In Abogede Vs The State (1996) NWLR (Pt.118) page 270 at 280, the Supreme Court held that:
When a Court is giving consideration to a submission of no case, it is not necessary at that stage of the trial for the Learned trial Judge to determine if the evidence is sufficient to justify conviction. The trial Court only has to be satisfied that there is a prima facie case requiring at least some explanation from the accused person” see also R vs Ogucha (1959) 4 FSC Pg.64. In Shatta vs FRN (2009) 3 NCC 527 the Court of Appeal held that:
“Without going into the credibility of the witnesses called by the prosecution, but based on the evidence presented before the trial Court it is my view that the Court does not have to believe the evidence adduced by the prosecution at

this stage but the issue to be determined is that if the case for the prosecution is believed, is there anything for the prosecution to explain.”
In Aduku vs FRN (2009) 4 NCC 350, on the meaning of prima facie case, the Court of Appeal had this say:
“what is meant by prima facie case? It only means that there is a ground for proceedings… but a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is finally guilty or not… and the evidence discloses prima facie case, when it is such that un-contradicted and if believed it will be sufficient to prove the case against the accused.” See on this Dr. Olu Onagoruwa Vs The State (1993) 7 NWLR (Pt.303) 49 at 80 – 83… It is the judges duty, however, when a submission of no case to answer is made to discharge an accused, where the evidence adduced by the prosecution does not disclose the necessary minimum evidence establishing the facts of the crime charged. In doing so, the judge, does not write judgment. It is not the judges job, at that stage, to weigh and evaluate evidence or who is lying and is not to conclude that the prosecution is unreliable.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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See also Ekwunugo vs FRN (2008) LPELR – 1105 (SC); DPP VS Akpan (2018) LPELR – 44047 (CA); Medinat vs C.O.P. (2017) LPELR – 43292 (CA).
The practices and law is that, No Case Submission is allowed and considered, when at the end of the evidence by the prosecution witness(es), no legally admissible evidence for the offence with which the defendant has been charged, is made out to necessitate calling on the Accused person (defendant) to defend himself, or state his own side of the story; or that whatever evidence that the prosecution has disclosed to link the defendant has been so discredited and watered down by cross examination that no reasonable Court or tribunal can rely on it to convict the defendant (accused person). See the case of Tongo and Anor Vs C.O.P. (2007) LPELR – 3257 (SC); (2007) 12 NWLR (Pt.1049) 525; Daboh & Anor vs State (1977) LPELR – 904 (SC).
In the case of C.O.P. Vs Amuta (2017) LPELR — 41386 (SC), the Supreme Court, again, said:
“It is settled law that a submission that there is no case to answer by an accused person means that there is no evidence upon which, even if the Court believed it, it could convict. In

other words, where there has been no evidence to prove an essential elements of the offence, or where the evidence adduced by the prosecution has been so discredited as a result of cross examination, or is so manifestly unreliable that no reasonable Court or Tribunal can safely convict on it. At the stage when a no case submission is made, the trial Court is not called upon to express an opinion on the evidence before it. The credibility of the witnesses is not in issue at this stage. All that the Court is required to do is to determine whether or not there is any legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the Record. (See Daboh vs The State (1977) ALL NLR 146, per Udo Udoma, JSC).”
Of course, once a no case submission is made, the trial Court is expected to rule on it, whether or not a prima facie case has been disclosed, to warrant calling on the Accused (Defendant) to enter his defence in the case. The trial Court is not expected to query the Counsel for making the no case

submission, and cannot decline to take the address, or refuse to consider it. The trial Court cannot coerce the Accused person to drop the no case submission and/or force him to rely on it. Also, a Counsel worth his name, who knows what to do, cannot be cowed by the disposition of the trial Court to drop his no case submission, simply because the trial Court does not seem favourable to it, and he (Counsel) cannot also be intimidated to rely on the no case submission (rest on it), at the expense of his client (Accused person), if he (Counsel) does not believe in the efficacy or outcome of the No Case Submission.
Of course, where the Counsel for the Accused person accepts to rely on the No Case Submission, resting on the same, and invariably adopting the evidence presented by the Prosecution, the trial Court is bound to go beyond merely ruling on the No Case Submission, to considering the evidence adduced by the prosecution, on the merit, and delivering a judgment in the case. In such a situation, the Accused person (or his Counsel) has himself to blame, not the Court, if the decision of the trial Court on the no case submission disappoints him/his

client and makes him regret throwing away the opportunity he had to defend himself in the case. Counsel cannot complain of denial of fair hearing, in the circumstances. See the case of Igabele Vs The State (2005) NCC vol. 1 Page 59; (2004) LPELR-11065(CA), where my lord, Fabiyi JSC said:

“When an accused rests his case on the prosecution, on a “no case submission”, the effect is that he banks his case completely on the evidence adduced by prosecution. To my mind, he takes a risk as he must stand or fall upon such evidence by the prosecution. At times it can be perilous to take a risk.”
See also Ajibade vs The State (2013) 6 NWLR (Pt.1349) 25, where my lord, Ogunbiyi JSC, held:
“In further emphasis and even at the risk of repeating myself, I will restate that an accused person who rests his case on that of the prosecution has taken a gamble and a risk. He has in other words, shut out himself and will have no one but himself to blame. This is because he does not want to place any facts before the trial Court other than those which the prosecution has presented in evidence. It also confirms that he does not want to explain any facts or rebut any

allegation made against him. The rating of the effect is not less than admission of the evidence led by the prosecution.” See also the case of Magaji Vs Nigerian Army (2008) ALL FWLR (Pt.420) 603 and Igabele Vs State (2005) 1 NCC 59.”
In the case of Ali & Anor Vs The State (1988) 1 NWLR (Pt.68) 1 at 18; (1988) 1 SCNJ 17, my lord, Oputa JSC, had said:
“It is always a gamble to rest the defence on the case of the prosecution and that it is a risk where issues of fact will have to be decided in favour of the Accused person before his defence will succeed. The defence has in effect shut itself out and will have itself to blame as the Court will not be expected to speculate on what the Accused person might have said.”
At page 13 of that Judgment, his Lordship, said:
“The Accused person’s resting his case on that of the prosecution means no more than that the Accused did not wish to place any fact before the Court other than those which the prosecution had presented in evidence. It signifies that the Accused person did not wish to explain any fact or rebut any allegation against him. ”
The above procedure (resting on the case of

prosecution, or relying on No Case Submission) is usually adopted, where/when the Accused person acknowledges or is conscious of his culpability, but is not bold enough to plead, guilty, and/or is afraid of the grilling on being subjected to the cross examination which would force him to implicate himself. He therefore takes the gamble of resting on the No Case Submission; or may even elect to keep mute at the trial. Of course by Section 287(1) of the Criminal Procedure Act, the accused person is entitled to the option.
I must however observe that in this case, the trial Court appeared to have intimidated the Counsel for the Appellant to take the option of resting on the case of the prosecution, or relying on the No Case Submission, as shown on page 46 of the Records (earlier reproduced). But as I also stated earlier in this judgment, no lawyer (Counsel) worth his name, would allow himself to be intimidated or cowed to compromising the interest of his client and impugn his legal integrity by relying on a no case submission, which he did not believe in.

There is clear evidence that Appellant’s Counsel finally elected to rely on the No Case

Submission and to rest on the same, and so Counsel for Appellant cannot complain on appeal against the consequences of that election, or raise issue of denial of fair hearing, Appellant having forfeited his opportunity to state his own side of the story. Denial of fair hearing does not arise where a party refuses to utilize the opportunity given to him to present his case and/or be heard. Nwokocha Vs A.G. Imo State (2016) LPELR – 40077 (SC); Ahmed vs Ahmed & Ors (2013) LPELR – 21143 (SC); Emekpu vs A.G. Fed. (2018) LEPLR – 49350 CA; Eze Vs FRN (2017) LPELR 42097 SC; NAFDAC Vs ONWUKA (2013) LPELR – 22316 CA; The Gov. of Imo State & Ors Vs E.F Network Nig. Ltd & Anor (2019) LPELR – SC:1001/2016 (SC).

Was the trial Court right to convict the Appellant for murder in the face of the evidence and the statement of Appellant to the Police, Exhibits 1 & 3, alleging he was hit by the deceased with a stick and suggesting he acted in self defence?

The evidence before the trial Court, as per the PW1 (the wife of the deceased) Blessing Okoronkwo, who witnessed the event that resulted in the death of the husband, was that:

“On the 26th of March, 2010, they went to work. She knows the accused, her husband’s relation. As they journeyed home, after the day’s work, her husband from Mbutu Okahia Umuhu, their machine got spoilt and was packed at a mechanics house — Anayo Eke and started trekking home. The accused and his friend were standing by an electric pole. They exchanged greetings and continued their home word (sic) journey. The husband brought N5,000.00 for purchase of drugs for their use and his mother. The next they heard was a voice, that of the accused, saying Owunna Eke James gaje ihea — is it Nnaeke James going pass? He answered, yes adding that he had earlier greeted him. He said her husband should wait for this message. As he waited for the said message, the accused reached down to his trouser and out was a marchet (sic). He then gave him a cut as to severe (sic) his hand, but her husband dodged with his and gave him a deep cut on his hand and the joint. Then blood started pumping out. She started shouting, he has killed my husband. As she did this, she was running and a crowd started rushing out. The accused also stabbed her husband at the stomach, causing him to fall

down. The crowd came out and he ran away. They gave first aid but blood was all over him. He was then rushed to the hospital and was confirmed dead on arrived. She made a statement to the Police. Under cross examination, witness stated that there was land dispute between her husband and the accused and his deceased father…” (See page 58 — 59 of the Records, where the trial Court summarized the evidence of the PW1).

The PW2 (IPO) said the Appellant was arrested and he made a confessional statement to the Police:
“this his statement was read over to him and interpreted to him. He signed and he (sic) Counter signed. It was made exhibit 1, without objection from the defence… The Accused was later taken before a superior Police Officer… who attested to the Statement, where the accused agreed he made it voluntarily, without any inducement or intimidation. He then signed it. This addendum was received as Exhibit 3… ” (See page 60 of the Records)

In his findings the trial Court said:
“The defence tried to impeach this piece of evidence, first by saying this was the evidence of the deceased wife and needed corroboration. The answer could be

found in the two statements made by the accused himself — exhibits 1 and 4 (sic). In both he provided the needed corroboration. As rightly pointed out by the prosecution in exhibit 1, the accused had this to say. “I heard he has died It was as (sic) the matchet cut I gave him. That’s all, a result I am verv sorry about it because I did not want to kill him.” (See page 66 of the Records and Pages 16 – 17 carrying the Exhibit 1 by the Appellant).

The confessional statements of Appellant were admitted without any objection (see page 36 of the Records), thus, there was no challenge as to the voluntariness of the confession.

By both the evidence of the eye witness (PW1) and the confessional statements of the Appellant (Exhibits 1 & 3), it was obvious the prosecution had established the commission of the offence by the Appellant clearly, and so the trial Court was right in my view, to hold him guilty, as charged.

I have not seen where Appellant raised and defence of acting in self defence in the Exhibits 1 and 3. Of course, there could not have been any such defence, as Appellant did not give evidence to defend the charge, and the

confessional statements, made by him, rather, showed he admitted the commission of the offence, though he said he did not intend to kill the deceased. But he should have known the probable consequence of inflicting such brutal marchet cuts on the deceased, causing him grievous harm. Accused person is deemed to have intended the probable consequences of his callous and/or brutal act.

He had stated, in Exhibit 1, alleging that the deceased “hit me with a stick. I now cut his left hand with the matchet I was working with. He sustained injury…” See page 16 of the Records of Appeal.

Even if the allegation of deceased hitting Appellant with a stick were to be true (which is not conceded), the act of dealing grievous matchet cuts on the deceased cannot, in my opinion, be commensurate with the alleged hitting of Appellant with a stick, to avail him the defence of acting in self defence. This is because in self defence the measure of force used in warding off any danger posed to a party acting in self defence, must be commensurate with the threat posed by the attacker. See Fulani M. vs The State (2018) LPELR – 45195 (SC); Afosi vs State (2013) LPELR –

20751 (SC); Uwagboe vs The State (2008) LPELR – 3444 (SC):
“The defence of self defence is open only to an accused person who is able to prove that he was a victim of an unproved assault, causing him reasonable apprehension of death or grievous harm. But he is even entitled to use such force to defend himself as he believes on reasonable grounds to be necessary to preserve him from danger.”
See also Joseph Vs The Nigerian Navy (2020) LPELR — 49692 CA, where the conditions to invoke self defence were outlined, and the same are not available to the Appellant in this case. In that case, Barka JCA, said:
Defence of self defence “would have been available to the Appellant, where, at the time the accused person was said to have killed the deceased, a reasonable apprehension of death or grievous harm, and the belief by the accused that the act of killing was necessary in order to save his own life. It must be spontaneous reaction by the accused to an unprovoked attack, to ward off or avoid the said attack against him and to defend himself from further attack. See Jeremiah Vs The State (2012) 14 NWLR (Pt.1320) 248; Omoregie vs The State (2008) 18

NWLR (Pt.1119) 464; Famakinwa Vs The State (2016) 11 NWLR (pt.1524) 538; Baridam vs The State (1994) 1 NWLR (Pt.320) 262; Saheed vs The State (2018) LPELR 46675 (CA); Sule Vs The State (2018) LPELR — 46110 CA.”
In this case at hand, evidence shows that Appellant was the aggressor and attacker, who provoked and took charge of the whole events that led to the murder of the deceased. See the case of Moses Vs The State (2020) LPELR 49640, (CA), where Nimpar JCA, relying on decision of Apex Court, said
“The circumstance under which the plea of self-defense avails the accused person is one of facts. The accused person who used excessive force on his assailant cannot be heard to say that he had no safe or reasonable mode of retreat and that the taking of life of one who was not even his attacker cannot (sic) justified. Thus, as Ariwoola JSC restated in Afosi vs The State (2013) 13 NWLR (Pt. 1371) 329 at 357-358; the four factual components of the plea of self defense there are: (a) The accused person must himself be free from fault or blame in bringing about the encounter. He must not be blame worthy, for if he was blame worthy then he cannot

benefit from his own iniquity. (b) There must be present an impending peril to human life or some grievous bodily harm. The existence of such peril must be real or an honest belief of an existing necessity. (c) There must be no state or reasonable mode of escape by retreat. (d) There must have been a necessity for taking of life. It must be borne in mind that the accused person was under a tense mental situation upon which, within a split moment, he must act. The state of his mind is material particularly that within such split moment the accused has very limited options available to him. I should think the only accused person who can successfully plead self-defense is the one who acted at the spur of the moment to ward off the peril either to himself or to another person coming from the attacker killed. The law does not permit him to act in a manner excessive or disproportionate.”

confessional statement of the accused, voluntarily, made and adjudged so. See the case of Dada Vs State (2017) LPELR – 43468 (SC); Adesina & Anor vs The State (2012) LPELR – 9722 SC; State vs Isah (2013) 8 NCC 320; Okeke vs State (1999) 2 NWLR (Pt.590) 246; Akinsuwa vs The State (2019) LPELR – 47621 SC; State vs Sunday (2019) LPELR – SC:709/2013; Tobi Vs State (2019) LPELR — 46537 SC.

In this case at hand, the evidence of the eye witness (PW1) had linked the Appellant with the murder of the deceased, and the confessional statement of the Appellant confirmed the said eye witness account that Appellant gave the deceased matchet cuts which caused his death. I cannot therefore fault the decision of the trial Court as I resolve the Issues against the Appellant and dismiss the Appeal. The decision of the trial Court convicting and sentencing Appellant to death is therefore affirmed.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: The issues donated for determination in this appeal have been adequately treated by my learned brother, I. G. Mbaba, JCA, who has ably

given due consideration thereto. I agree with his reasoning and conclusion that this appeal lacks merit and same is hereby dismissed. I equally affirm the judgment of the trial Court together with the conviction and sentence of the Appellant.

Appearances:

KELECH OBI, ESQ.

For Appellant(s)

OSITA CHUKWUEMEKA, ESQ. (SC M.O.J. IMO STATE) For Respondent(s)