ABEBE v. F.R.N (2020)

ABEBE v. F.R.N

(2020)LCN/14641(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, September 17, 2020

CA/LAG/CR/441/2019

RATIO

PLEADINGS: PRELIMINARY OBJECTION.To begin with, a preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. UniIorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. CP, Rivers State (2013) 6 NWLR (Pt. 1350) 225; Amah v. FRN (2019) 6 NWLR (Pt. 1667) 160. For this reason, the law commands the Court to deal with a preliminary objection, when raised in any proceedings, first, see Uwazurike v. A —G., Fed. (2007) 8 NWLR (Pt. 1035) 1; Allanah Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2007) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142; Muhammed v. IGP (2019) 4 NWLR (Pt. 1663) 492; Lolapu v. C.O.P. (2019) 16 NWLR (Pt. 1699) 476. I will obey this legal commandment so as not to insult the law. Per OBANDE FESTUS OGBUINYA JCA

RATIO

PLEADINGS: INCOMPETENCE GROUNDS OF APPEAL IS CHALLENGE BY A MOTION ON NOTICE. It is now trite law, beyond any peradventure of doubt, that a motion on notice is filed where a party intends to challenge the incompetence of one or two grounds in the presence of an existing valid ground(s) in an appeal. Where a party, in such a circumstance, files a preliminary objection, such an objection is rendered incompetent, see Lawanson v. Okonkwo (2019) 3 NWLR (Pt. 1658) 77. UBN PLC V. Ravih Abdul & Co. Ltd. (2019) 3 NWLR (Pt. 1659) 203; FRN v. Atuche (2019) 8 NWLR (Pt. 1674) 338; Lolapo v. COP (2019) 16 NWLR (1699) 476. Opeyemi v. State (2019) 17 NWLR (Pt. 1702) 403. Per OBANDE FESTUS OGBUINYA JCA

RATIO

PLEADINGS: GROUND OF APPEAL MUST GIVE BIRTH TO AN ISSUE.In the eyes of the law, a ground of appeal must give birth to an issue or is deemed abandoned, see Ugboji v. State ( 2018 ) 10 NWLR (Pt. 1627) 346; Galadima v. State (2018) 13 NWLR (Pt. 1636) 357; Musa v. State (2019) 2 NWLR (Pt. 1655) 140; Matthew v. State (2019) 8 (Pt. 1675) 461); Abdullahi v. FRN (2018) 2 NWLR (Pt. 1604) 479; Sanni v. State (2019) 13 NWLR (Pt. 1690) 551; Lalopu v. State (2019) 16 NWLR (Pt. 1699) 476. In its barren/castrated state, ground 8 risks the liability of being struck out on account of abandonment. In the presence of the fate of ground 8, the respondent’s alluring contention, on the incompetence of grounds 1-7 because of their mixture with ground 8, with due reverence, pales into insignificance. Per OBANDE FESTUS OGBUINYA JCA

RATIO

PLEADINGS: CONCURRENT JURISDICTION OF THE HIGH COURT AND COURT OF APPEAL TO EVALUATE DOCUMENTARY EVIDENCE.Interestingly, the law, in order to repel injustice, donates concurrent jurisdiction to this Court and the lower Court on evaluation of documentary evidence, see Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sanni (2014) 16 NWLR (Pt. 1433) 299; Atoyebi v. FRN (2018) 5 NWLR (Pt. 1612) 350. I will reap from this co-extensive jurisdiction in the appraisal of the array of documentary evidence in this appeal. Per OBANDE FESTUS OGBUINYA JCA

RATIO

PLEADINGS: NO-CASE SUBMISSION AND THE INGREDIENTS OF NO-CASE SUBMISSION.By way of prefatory observations, a no-case submission connotes that there is no evidence on which a Court, even where it believes it, can convict an accused person, see C.O.P. v. Amuta (2017) 4 NWLR (Pt. 1556) 376; Odey v. State (2019) 2 NWLR (Pt. 1655) 97. It is a method usually, employed by an accused person as an alternative to defence, at the conclusion of the prosecution’s case in a criminal trial. In Ibeziako v. C.O.P. (1963) 1 All NLR 61/(1963) 1 SCNLR 99, the apex Court weaved two circumstances under which a no-case submission will be upheld thus:
(i) When there has been no evidence to prove an essential element in the alleged offence either directly, circumstantially or inferentially;
(ii) 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 safely convict on it.
The case-law sanctions that a trial Court’s ruling on a no-case submission must be brief, not lengthy, and should not make remarks on facts. The reason is not far-fetched. A lengthy ruling, touching on the facts and evidence, will likely fetter its discretion in the event that it overrules it. A no-case submission does not invite a trial Court to express opinion on the evidence or credibility of witnesses. All that is required is for it to ascertain whether there is any evidence, no matter the quantum, that links the accused person with the offence preferred against him, see Ubanatu v. C.O.P. (2000) 1 SCNQ 89; Omisore v. State (2005) 12 NWLR (Pt. 940) 591; Uzoagba v. C.O.P. (2014) 5 NWLR (Pt. 1401) 441; Okafor v. State (2016) NWLR (Pt. 1502) 248; Egharevba v. FRN (2016) 10 NWLR (Pt. 1521) 431; C.O.P. v. Amuta (supra); Oko v. State (2017) 17 NWLR (Pt. 1593) 24; Adama v. State (2018) 3 NWLR (Pt. 1605) 94; Ikuforiji v. FRN (2018) 6 NWLR (Pt. 1614) 742; Alex v. FRN (2018) 7 NWLR (Pt. 1618) 228; Martins v. FRN (2018) 13 NWLR (pt. 1637) 533; Chyfrank v. FRN (2019) 6 NWLR (Pt. 1667) 143; Amah v. FRN (2019) 6 NWLR (Pt. 1667) 160. In other words, the law requires the Court to glean, from the evidence on record, if the prosecution has established a prima facie case against an accused person vis a vis the crime levelled against him. Historically, prima facie, which has been disobedient to a single definition, traces paternity of its significance to the Indian case of Sher Singh v. Jitend-dranthen (1931) 1 LR 59 Calc. 275 which was adopted by the Nigerian Supreme Court in Ajidagba v. IGP (1958) SCNLR 60. It denotes the existence of ground(s) for proceeding in a matter. It is not coterminous with proof which comes at the twilight of a proceeding when a Court will decide the fate of a culprit. A piece of evidence discloses a prima facie case when it is such that, if unrefuted and believed, it will be enough to prove the case against an accused person, see Abacha v. State (2002) 11 NWLR (Pt. 779) 437; Ubanatu v. State (supra); Abogede v. State (1996) 4 SCNJ 223; Uzoagba v. C.O.P (supra); Okafor v. State (supra); C.O.P. v. Amuta (supra); Oko v. State (supra); Ibrahim v. State (2018) 1 NWLR (Pt. 1600) 279; Ehindero v. FRN (2018) 5 NWLR (Pt. 1612) 301; Felimon Ent. Ltd. v. Chairman, EFCC (2018) 7NWLR (Pt. 1617) 56; Igwe v. State (2019) 3 NWLR (Pt. 1660) 417. For a dispassionate determination of the appeal, this Court will wear these hallowed principles of no-case submission, like a badge, on its judicial shoulder. Per OBANDE FESTUS OGBUINYA JCA

RATIO

PLEADINGS: FORGERY AND THE INGREDIENTS OF FORGERYForgery is an amphibious concept that embraces criminal and civil matters. Admirably, the parties are consensus ad idem on the ingredients of the offence of forgery videlicet: (a) Existence of an original/genuine document; (b) That the document is forged; (c) That forgery was done by the accused person; (d) That the accused know that it was forged; and (e) That the accused intended the forged document to be acted upon as an original/genuine to the detriment of the victim, see Alake v. State (1991) 7 NWLR (Pt. 205) 567; APC v. PDP (supra); Obioma v. State (2020) 3 NWLR (Pt. 1710) 45; Modibo v. Usman (2020) 3 NWLR (Pt. 1712) 470. I will, in due allegiance to the desire of the law, use these ingredients of forgery as the major barometer to measure/gauge the presence or absence of prima facie case against the appellant. Per OBANDE FESTUS OGBUINYA JCA

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Obande Festus Ogbuinya Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

JOHN WARIMEME ABEBE APPELANT(S)

And

THE FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offspring of the decision of the High Court of Lagos State, Ikeja Division (hereinafter addressed as “the lower Court”), coram judice: M.A. Dada, J., in Charge No. LD/7750C/2018, delivered on 26th March, 2019. Before the lower Court, the appellant and the respondent were the defendant (accused) and the complainant respectively.

The facts of the case, which transfigured into the appeal, are amenable to brevity and simplicity. The appellant and Inducon (Nigeria) Limited, as plaintiffs, instituted an action against Statoil (Nigeria) Limited. in the Federal High Court, Lagos Division, in Suit No. FHC/L/CS/224/2010. On 6th December, 2010, the Federal High Court delivered its judgment in favour of the appellant and his co-plaintiff. The defendant (Statoil Nigeria. Limited.) appealed against it. It was registered as: Appeal No. CA/L/284/2011. It was duly heard. This Court dismissed the appeal on 5th June, 2012. Later on, on 14th December, 2016, Statoil (Nigeria) Limited wrote a petition to the Economic and Financial Crimes Commission (EFCC) against the appellant

and Inducon (Nigeria) Limited. The allegation in the petition centred on forgery of a letter dated 30th November, 1995. The petitioner prayed the EFCC to investigate the forgery allegation

After due investigation of the allegation in the petition, the respondent, through the EFCC, arraigned the appellant, before the lower Court on 26th July, 2018, on a 4-count information, for the offences of: forgery, fabricating evidence, using fabricated evidence and attempt to pervert the course of justice contrary to the provisions of Sections 467, 120 (1), 120 (2) and 126 (2) of the Criminal Code, Cap C17, Laws of Lagos State of Nigeria, 2003 respectively. The appellant pleaded not guilty to all the counts of the information. He was, on his application, released on bail pending the trial.

Following the plea of not guilty, the lower Court commenced a full-scale determination of the case. In proof of the case, the respondent fielded five witnesses, PW1-PW5, and tendered tons of documentary evidence: exhibits 1-24. At the closure of the respondent’s case, the appellant made a no-case submission. The parties joined issue on the no-case submission. In a

considered ruling, delivered on 26th March, 2019, found at pages 1301-1303, volume III, of the record, the lower Court dismissed the no-case submission and called the appellant to open his defence.

The appellant was aggrieved by the decision. Hence, on 2nd April, 2019, the appellant lodged an 8-ground notice appeal, copied at pages 932-942, volume II of the record, wherein he prayed this Court for:
1. An Order setting aside the Ruling of the lower Court delivered on 26th March 2019 refusing the Appellant’s No-Case Submission in CHARGE NO. LD/7750C/2018 – Federal Republic of Nigeria v. Dr. John Warimeme Abebe before the Lagos State High Court.
2. An Order upholding the Appellant’s No Case Submission and returning a verdict that a case has not been made out against the Appellant sufficiently to require him to make a defence.
3. An Order discharging and acquitting the Appellant in respect of the four count charge of forgery, fabricating evidence, using fabricated evidence and attempt to pervert the course of justice as contained in the information filed in CHARGE NO. LD/7750C/2018 – Federal Republic of Nigeria v. Dr. John

Warimeme Abebe before the Lagos State High Court.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure for hearing criminal appeal in this Court. The appeal was heard n 16th July, 2020.
Respondent’s preliminary objection.

The respondent registered a preliminary objection against the appeal on ground of abuse of Court process. Learned respondent’s counsel, Rotimi Oyedepo, Esq., submitted that following the decision of the lower Court delivered on 23rd October, 2018, on the appellant’s motion of 16th October, 2018, and the dismissal of this appeal against the decision in Appeal No. CA/L/11C/2019, delivered on 3rd July, 2019, the appellant’s is estopped from raising the issue of forgery in ground 8 of his notice of the appeal. He relied on Bamgbegbin v. Oriare (2009) 13 NWLR (Pt. 1158) 370. He reasoned that the appeal would lead to this Court overruling itself and so constituted an improper and abuse of judicial process. He cited R-Benkay Nig. Ltd. v. Cadbury Nig. Ltd. (2012) LPELR-7820 (SC). He stated that the order to make for an abuse of Court

process is one of dismissal. He cited Dingyadi v. INEC (No. 2) (2010) 18 NWLR (Pt. 1224) 154. He asserted, in the alternative, that the incompetent ground 8 was argued with the other seven grounds on the sole issue which rendered the issue incompetent. He referred to Sanmi v. State (2019) 13 NWLR (Pt. 1690) 551. He urged the Court to dismiss the appeal.

For the appellant, learned senior counsel, Uche Nwokedi, SAN, contended that the preliminary objection was not served on the appellant in the manner required by Order 10 rules 1 and 3 of the Court of Appeal Rules, 2016. He described the issue of service as a jurisdictional one and a process not served would be set aside. He relied on Harry v. Menakaya (2017) LPELR-42363. He claimed that the non-service should be given first consideration. He cited Adediran v. I.T. Ltd. (1991) 9 NWLR (Pt. 214) 155. He observed that rules of Court must be obeyed. He referred to Mustapha v. Abubakar (2011) 3 NWLR (Pt. 1233) 153.

Learned senior counsel further contended that the appeal is not an abuse of Court process as it was filed earlier than the decision in Appeal No.CA/L/11C/2019. He added that the ground 8 was not

among the grounds from which the issue was formulated and so it was abandoned. He cited Newswatch Comm. Ltd. v. Atta (2000) 2 NWLR (Pt. 646) 592. He described the preliminary objection as an academic exercise as the other grounds1-7 could sustain the appeal. He asserted that the appellant ought to have come by way of motion. He cited Azubuogu v. Oranezi (2018) 5 NWLR (pt. 1613) 447; Ekunola v. CBN (2013) 15 NWLR (Pt. 1377) 224; Nwaigwe v. Okere (2008) 13 NWLR (Pt. 1105) 445; Ikechukwu v. Nwoye (2014) 4 NWLR (Pt. 1399) 227. He maintained that the preliminary objection is an abuse of Court process. He cited SPDC v. Amadi (2011) 14 NWLR (Pt. 1266) 157.

Resolution of the preliminary objection.
Before I delve into the settlement of the preliminary objection, it is imperative to first and foremost, put the record straight. In paragraphs 2.12 and 2.13, at page 5, of the respondent’s brief of argument, learned respondent’s counsel Rotimi Oyedepo, Esq., claimed that the respondent raised a preliminary objection. Due to its kingly position here, it is germane to pluck out the two paragraphs from the respondent’s brief of argument, wherein

they are domiciled, verbatim as literattim, as follows:
12.12. The Respondent raised a preliminary objection dated 18th day of June, 2020 to the hearing of this appeal and urged this Court to dismiss the appeal for being an abuse of Court process.
2.13. My lords, the Respondent humbly adopts and incorporates by reference in this Brief of Argument, all the grounds of the Preliminary Objection and the facts in the affidavit filed in support of the objection.

Curiously, at the hearing of the appeal, learned respondent’s counsel did not call the Court’s attention to the alleged preliminary objection. None was found in the original Court’s file either. The learned appellant’s counsel, in the appellant’s reply brief, denied service of any preliminary objection. It stems from these, that there was/is no preliminary objection, dated 18th June, 2020, before the Court as claimed by the learned respondent’s counsel. The import of this prelude is to keep the record straight in the interest of the inalienable right of the feuding parties to fair hearing.

However, the learned respondent’s counsel argued

preliminary objection in paragraphs 2.14-2.27, at pages 5-8, of the respondents brief of argument. The law grants the respondent the unbridled licence to do so, see Onah v. Schiumberger (Nig.) Ltd. (2018), 17 NWLR (Pt. 1647) 84.

To begin with, a preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. UniIorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. CP, Rivers State (2013) 6 NWLR (Pt. 1350) 225; Amah v. FRN (2019) 6 NWLR (Pt. 1667) 160. For this reason, the law commands the Court to deal with a preliminary objection, when raised in any proceedings, first, see Uwazurike v. A —G., Fed. (2007) 8 NWLR (Pt. 1035) 1; Allanah Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2007) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142; Muhammed v. IGP (2019) 4 NWLR (Pt. 1663) 492; Lolapu v. C.O.P. (2019) 16 NWLR (Pt. 1699) 476. I will obey this legal commandment so as not to insult the law. The objector’s objection seeks to terminate the appellant’s appeal in limine on the

vitriolic ground of want of jurisdiction on the footing of abuse of Court process.

Incidentally, the appellant greeted the preliminary objection with a stiff opposition. The ground of protest is that the objection is against ground 8 of the notice of appeal which rendered it incompetent. It is now trite law, beyond any peradventure of doubt, that a motion on notice is filed where a party intends to challenge the incompetence of one or two grounds in the presence of an existing valid ground(s) in an appeal. Where a party, in such a circumstance, files a preliminary objection, such an objection is rendered incompetent, see Lawanson v. Okonkwo (2019) 3 NWLR (Pt. 1658) 77. UBN PLC V. Ravih Abdul & Co. Ltd. (2019) 3 NWLR (Pt. 1659) 203; FRN v. Atuche (2019) 8 NWLR (Pt. 1674) 338; Lolapo v. COP (2019) 16 NWLR (1699) 476. Opeyemi v. State (2019) 17 NWLR (Pt. 1702) 403.
An indepth study of the objection, discernible from the arguments thereon, reveals that it mainly chastises ground 8 of the appellant’s eight grounds of appeal. It castigates the ground 8 as hosting/housing an issue estoppel which contaminates the entire appeal which makes

it an abuse of Court process. I have married the meat of the objection with the inelastic position of the law as displayed above. The wisdom behind the comparison is not far-fetched. It is as certain if the objection is submissive or rebellious to the law. It admits of no argument that the appellant’s notice of appeal, which monopolises pages 932-942, volume II, of the mountainous record, warehouses 8 prolix/verbose grounds. The purport of the respondent’s onslaught against ground 8 is not a moot point. It discloses that the objection spared grounds 1-7 of the notice of appeal. In other words, the grounds 1-7 are viable and valid with the potency to sustain the appeal. In the face of the existential validity of grounds 1-7, the respondent ought not to have filed a preliminary objection. The proper/appropriate process is an application (motion on notice) challenging the viability of ground 8. In so far as the mission/target of the objection is against ground 8, it is impotent to determine the destiny of the entire appeal. In this wise, the respondent’s approach is highly offensive to the law as it ought to have beseeched the Court by

way of an application. The improper approach/mode constitutes a serious coup de grace on the competency of the objection. I endorse, in toto, the indefeasible enticing submission of the appellant on the point. On this score, I declare that the preliminary objection is infested with indelible incompetence.

That is not the only dent that plagues the preliminary objection that quarrels with the competence of ground 8. At the cradle of the appellant’s brief of argument, precisely in paragraph 3.0, at page 6, thereof, the solitary issue in the appeal issue is laid out. At expense of verbosity, but borne out of necessity, I will scoop up the sole issue form the brief, where it is ingrained, ipsissima verba, thus:
Whether in view of the facts and circumstances of this case, the lower Court was right to dismiss the Appellant’s No Case Submission (Distilled from Grounds 1, 2, 3 4, 5, 6 and 7 of the Grounds of Appeal)
It is decipherable from this issue, that ground 8, which is in the heat of expunction, is not listed, as one of the grounds that parented it. Indisputably, the appellant nominated that singular issue. Since ground 8 is

not in the configuration of those grounds, its status is obvious. It did not give birth to any issue. In the eyes of the law, a ground of appeal must give birth to an issue or is deemed abandoned, see Ugboji v. State ( 2018 ) 10 NWLR (Pt. 1627) 346; Galadima v. State (2018) 13 NWLR (Pt. 1636) 357; Musa v. State (2019) 2 NWLR (Pt. 1655) 140; Matthew v. State (2019) 8 (Pt. 1675) 461); Abdullahi v. FRN (2018) 2 NWLR (Pt. 1604) 479; Sanni v. State (2019) 13 NWLR (Pt. 1690) 551; Lalopu v. State (2019) 16 NWLR (Pt. 1699) 476. In its barren/castrated state, ground 8 risks the liability of being struck out on account of abandonment. In the presence of the fate of ground 8, the respondent’s alluring contention, on the incompetence of grounds 1-7 because of their mixture with ground 8, with due reverence, pales into insignificance.

This brief legal anatomy, with due respect, punctures and disables the respondent’s preliminary objection. It cannot fly. On this premise, the objection, invented by the Appellant to snuff life out of the respondent’s preliminary objection in its embryo, is imbued with merit. Consequently, I uphold the objection. In

total fidelity to the dictate of the law, l strike out the preliminary objection for being incompetent. I will proceed to handle the appeal on its merits.

Consideration of the appeal
During the hearing of the appeal, learned appellant’s counsel, Uche Nwokedi, SAN adopted the appellant’s brief of argument, filed on 22nd January, 2020 but deemed properly filed on 3rd June, 2020, and the appellant’s reply brief, filed on 6th July, 2020, but deemed properly filed on 16th July, 2020, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned respondent’s counsel, Rotimi Oyedepo, Esq., adopted the respondent’s brief of argument filed on 18th June, 2020 but deemed properly filed on 16th July, 2020, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellant’s brief of argument, learned appellant’s counsel distilled a single issue for determination to wit:
Whether in view of the facts and circumstances of this case, the lower Court was right to dismiss the appellant’s No Case Submission.

In the respondent’s brief of

argument, learned counsel crafted one issue for determination, namely:
Whether having regard to the totality of the evidence led by the prosecution’s witnesses (PW1-PW5), the lower Court was right when it dismissed the Appellant’s no case submission and directed him to open and proceed with his defence.

A close look at the two sets of issues shows that they are identical in substance. In fact, the respondent’s issue can be, conveniently, subsumed under the appellant’s. For this reason of sameness, I will decide the appeal on the issue nominated by the appellant: the undoubted owner of the appeal.

Arguments on the issue.
Learned appellant’s counsel submitted that the lower Court was wrong when it held that the respondent made a prima facie case against the appellant. He asserted that the appellant satisfied the ingredients and the guidelines for the lower Court to have upheld his no case submission. He relied on Ibeziako v. COP (1963) 1 All NWLR 60; Enedo v. State (2002) 7 SC (Pt. II) 162; Ajiboye v. State (1995) 8 NWLR (Pt. 414) 408; Onagoruwa v. State (1993) 7 NWLR (Pt. 303) 49; Ugwu v. State (2013) 4 NWLR

(Pt. 1343) 172; Ajuluchukwu v. State (2014) 13 NWLR (Pt. 1425) 641; Agi v. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121; Okafor v. State (2016) 4 NWLR (Pt. 1502) 246. He reasoned that asking an accused to enter his defence in the face of unreliable evidence would amount to asking him to prove his innocence. He cited Suberu v. State (2010) ALL FWLR (Pt. 520) 1263. He conceded that in dismissing a no case submission, a Court should be brief and should not evaluate the evidence. He referred to Adama v. State (2017) LPELR 42266 (SC). He, however, added that a Court should on the face of the record to find out if there was a legally admissible evidence against the accused. He cited Daboh v. State (1977) 5 SC 197; Emedo v. State (supra). He stated that the lower Court failed to consider the ingredients for upholding a no-case submission and that caused a miscarriage of justice and denial of fair hearing. He relied on Orji v. PDP (2009) 14 NWLR (Pt. 1161) 310; Egharevba v. Osagie (2009) 18 NWLR (Pt. 1173) 299.

Learned senior counsel enumerated the ingredients of the offence of forgery. He relied on APC v. PDP (2015) LPELR- 24587 (SC); Alake v. State (1991) 7

NWLR (Pt. 205) 567; Odiawa v. FRN (2008) LPELR-4230 (CA); Oduah v. FRN (2012) LPELR-9220 (CA). He described the evidence of PW1 as inadmissible hearsay and the documents he tendered, annexures, 1, 2 and 3 of exhibit 1 as inadmissible documentary hearsay that lacked credibility. He cited Section 37 of the Evidence Act, ANPP v. Usman (2008) 12 NWLR (Pt. 1100) 1; Utteh v. State (1992) 2 NWLR (Pt. 223) 257; Subramanian v. Public Prosecution (1956) 1 WLR 965; JSC v. Omo (1990) 6 NWLR (Pt. 157) 407; Achora v. A-G, Bendel State (1990) 7 NWLR (Pt. 160) 92; Abadom v. State (1997) 1 NWLR (Pt. 479) 1;Saraki v. FRN (2018) 16 NWLR (Pt. 1646) 405. He opined that PW1 was not an expert forensic document examiner to analyse the exhibit. He cited ANPP v. Usman (supra) Ladoja v. Ajimobi (2016) LPELR-40658 (SC). He explained that PW2 was not a staff of BP UK or BP Exploration Nig. Ltd but based her evidence on archival facility from Iron mountain. He took the view that her evidence was inadmissible hearsay. He relied on Utteh v. State (supra); JSC v. Omo (supra); Sections 67 and 72 of the Evidence Act, 2011; Ladoja v. Ajimobi (supra). He claimed that the respondent’s

failure to call the maker of the letter was fatal to its establishment of prima facie case against the appellant. He cited Alake v. State (1992) 3 NSCC 365; Saraki v. FRN. (supra).

Learned counsel posited that the respondent withheld the minutes of meeting of BP Exploration Nig. Ltd. contrary to the law. He cited Sections 241 and 243 of the Companies and Allied Matters Act (CAMA);International Agric. Ind. Ltd. v. Chika Bros Ltd. (1990) 1 NSCC 66. He maintained that BP Plc London was a separate legal entity from BP Exploration Nig. Ltd. He referred to Section 37 of CAMA; Onuekwusi v. Reg. Trustees of Christ Methodist Zion Church (2011) LPELR-2702 (SC); CDBI v. COBEC (Nig. ) Ltd. (2004) 13 NWLR (Pt. 948) 376; UBN Ltd. v. Penny Mart Ltd. (1992) 5 NWLR (Pt. 240) 228; Salomon v. Salomon & Co (1897) AC 22; Ebbw Vale UDC v. South Wales Traffic Area Licensing Authority (1951) 2 KB 366; Charterbrdige Copr. v. Llyod’s Bank Ltd. (1970) CH.62/(1969) All ER 1185); Section 54 (1) and (2) of CAMA.

Learned counsel described the evidence of PW3 as a mixture of irrelevancies, inconsistencies and falsehood and so inadmissible. He relied on Ezemba v. Ibeneme

(2004) 14 NWLR (Pt. 894) 617. He observed that the PW4 failed to investigate the appellant’s defence so that no prima facie case was made against him. He relied on Queen v. Itule (1961) 2 SCNLR 183/(1961) 1 All NLR 466; Shazali v. State (1988) 12 SC (Pt. II) 58; Irrechukwu v. State (2015) LPELR-25608 (CA); Aigbadion v. State (2000) LPELR-264 (SC). He added that the evidence of PW5 was inadmissible. He stated that a Court has to expunge inadmissible evidence. He referred toKuba v. Dickson (2013) 4 NWLR (Pt. 1345) 534. He opined that the failure of the count of forgery would make other counts to fail. He postulated that exhibits 1-9 were inadmissible under Section 36, 37, 38 and 52 of the National Archives Act, Cap. N61, LFN, 2004. He referred to Sections 1 (b) and 2 of the Evidence Act, 2011; Ugbala v. Okorie (1975) NSCC 42; Ayeni v. Dada (1978) NSCC 147; Anyaebosi v. R.T Briscoe Nig. Ltd. (1987) 2 NSCC 805. He urged the Court to uphold the no-case submission, discharge and acquit the appellant.

On behalf of the respondent, learned counsel submitted that the lower Court was right when it restrained itself from delving into evaluation of evidence. He

stated the elements of no-case submission as noted in Daboh v. State (1977) 5 SC 197; Agbo v. State (2013) LPELR-20388 (SC). He said that the lower Court was right to deliver that ruling. He cited Adama v. State (supra). He observed that where there was a slight evidence linking an accused with the offence, no-case submission would fail. He cited Shinkafi v. FRN (2017) LPELR-42701 (CA). He noted that this Court would not evaluate the evidence without the evidence of the appellant. He listed the ingredients of forgery as noted in Oduah v. FRN (supra). He observed that the appellant was not misled in the dates on exhibit 1 and the forwarding letter. He analysed the evidence of PW2. He insisted that evidence of staff of a company is not hearsay. He relied on Saleh v. BON (2006) 6 NWLR (Pt. 976) 316; MTN (Nig) Comm. Ltd. v. C-Soka (Nig. Ltd. (2018) LPELR-44423 (CA); Anaja v. UBA Plc (2010) LPELR-3769 (CA); Kato v. Daewoo (1985) 2 NWLR (Pt. 511) 116. He reasoned that Iron mountain was not the maker of the documents and its evidence unnecessary. He said that the appellant raised the issue of minutes of meeting unilaterally as no witness testified on it. He

highlighted the evidence of PW1-PW5. He demonstrated that their evidence were relevant and admissible. He claimed that there was no need for an expert evidence to prove the forgery as it required no forensic examination. He persisted that the forgery could be proved by comparison of the two documents. He cited Osondu v. FRN (2000) LPELR-1067 (CA).

Learned counsel argued, per contra, that the provisions of Sections 36-38 of the National Archives Act were not applicable to the documents tendered in the case. He cited Sections 34, 52 and 35 (1) of the National Archive Act. He explained the purport of those provisions and the reasons for their non-applicability to the exhibits in the case. He opined that where there is a link between an accused and the forged document, the Court is entitled to draw the inference that he is the author of the document. He cited Osondu v. FRN (2000) 12 NWLR (Pt. 682) 483.

On points of law, learned appellant’s counsel submitted that the respondent failed to discharge its evidential burden in the case. He cited Enahoro v. Queen (1965) LPELR-25238 (SC). He repeated that the evidence of PW1 with hearsay. He referred to

Brila Energy v. FRN (2018) LPELR-4396 (CA). He asserted that the evidence of the respondent’s witnesses were discredited under cross-examination. He cited Andrew v. INEC (2018) 9 NWLR (Pt. 1625) 507. He noted that only original of a document, not a copy of it, can prove forgery. He relied on Abdulsalam v. State (2018) LPELR-45371 (CA); Omon v. Ekpa (2019) 15 NWLR (Pt. 1696) 504; APC v. PDP (supra); Oduah v. FRN (supra). He insisted that Section 38 of the National Archives Act applies to all Nigerian persons or companies and their archives.

Resolution of the issue
It is germane to place on record, upfront, that loads of documentary evidence were presented before the lower Court by the respondent. Interestingly, the law, in order to repel injustice, donates concurrent jurisdiction to this Court and the lower Court on evaluation of documentary evidence, see Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sanni (2014) 16 NWLR (Pt. 1433) 299; Atoyebi v. FRN (2018) 5 NWLR (Pt. 1612) 350. I will reap from this co-extensive jurisdiction in the appraisal of the array of documentary evidence in this appeal. Having been adequately fortified by this

inflexible position of the law, I will proceed to attend to the solitary issue in this appeal. The kernel of the issue, which is canalised within a narrow compass, is plain. It queries the lower Court’s dismissal of the appellant’s no-case submission before it.

By way of prefatory observations, a no-case submission connotes that there is no evidence on which a Court, even where it believes it, can convict an accused person, see C.O.P. v. Amuta (2017) 4 NWLR (Pt. 1556) 376; Odey v. State (2019) 2 NWLR (Pt. 1655) 97. It is a method usually, employed by an accused person as an alternative to defence, at the conclusion of the prosecution’s case in a criminal trial. In Ibeziako v. C.O.P. (1963) 1 All NLR 61/(1963) 1 SCNLR 99, the apex Court weaved two circumstances under which a no-case submission will be upheld thus:
(i) When there has been no evidence to prove an essential element in the alleged offence either directly, circumstantially or inferentially;
(ii) 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 safely

convict on it.
The case-law sanctions that a trial Court’s ruling on a no-case submission must be brief, not lengthy, and should not make remarks on facts. The reason is not far-fetched. A lengthy ruling, touching on the facts and evidence, will likely fetter its discretion in the event that it overrules it. A no-case submission does not invite a trial Court to express opinion on the evidence or credibility of witnesses. All that is required is for it to ascertain whether there is any evidence, no matter the quantum, that links the accused person with the offence preferred against him, see Ubanatu v. C.O.P. (2000) 1 SCNQ 89; Omisore v. State (2005) 12 NWLR (Pt. 940) 591; Uzoagba v. C.O.P. (2014) 5 NWLR (Pt. 1401) 441; Okafor v. State (2016) NWLR (Pt. 1502) 248; Egharevba v. FRN (2016) 10 NWLR (Pt. 1521) 431; C.O.P. v. Amuta (supra); Oko v. State (2017) 17 NWLR (Pt. 1593) 24; Adama v. State (2018) 3 NWLR (Pt. 1605) 94; Ikuforiji v. FRN (2018) 6 NWLR (Pt. 1614) 742; Alex v. FRN (2018) 7 NWLR (Pt. 1618) 228; Martins v. FRN (2018) 13 NWLR (pt. 1637) 533; Chyfrank v. FRN (2019) 6 NWLR (Pt. 1667) 143; Amah v. FRN (2019) 6 NWLR (Pt. 1667) 160. In other

words, the law requires the Court to glean, from the evidence on record, if the prosecution has established a prima facie case against an accused person vis a vis the crime levelled against him. Historically, prima facie, which has been disobedient to a single definition, traces paternity of its significance to the Indian case of Sher Singh v. Jitend-dranthen (1931) 1 LR 59 Calc. 275 which was adopted by the Nigerian Supreme Court in Ajidagba v. IGP (1958) SCNLR 60. It denotes the existence of ground(s) for proceeding in a matter. It is not coterminous with proof which comes at the twilight of a proceeding when a Court will decide the fate of a culprit. A piece of evidence discloses a prima facie case when it is such that, if unrefuted and believed, it will be enough to prove the case against an accused person, see Abacha v. State (2002) 11 NWLR (Pt. 779) 437; Ubanatu v. State (supra); Abogede v. State (1996) 4 SCNJ 223; Uzoagba v. C.O.P (supra); Okafor v. State (supra); C.O.P. v. Amuta (supra); Oko v. State (supra); Ibrahim v. State (2018) 1 NWLR (Pt. 1600) 279; Ehindero v. FRN (2018) 5 NWLR (Pt. 1612) 301; Felimon Ent. Ltd. v. Chairman, EFCC (2018) 7

NWLR (Pt. 1617) 56; Igwe v. State (2019) 3 NWLR (Pt. 1660) 417. For a dispassionate determination of the appeal, this Court will wear these hallowed principles of no-case submission, like a badge, on its judicial shoulder.

Now, the offences which were preferred against the appellant in the lower Court are: forgery, fabricating evidence, using fabricated evidence and attempt to pervert the course of justice contrary to the provisions of Sections 467, 120(2) and 126 (2) of the Criminal Code Cap. C17, Laws of Lagos State, 203. The document alleged to be forged is a letter of 30th November, 1995 belonging to BP Exploration Nigeria Limited. In paragraph 4.65, at page 30, of the appellant’s brief, learned appellant’s senior counsel posited that the other three counts are dependent on the count of forgery. Put simply, the other three counts will swim or sink with the fortune of the count of forgery. Forgery is an amphibious concept that embraces criminal and civil matters. Admirably, the parties are consensus ad idem on the ingredients of the offence of forgery videlicet: (a) Existence of an original/genuine document; (b) That the document is forged;

(c) That forgery was done by the accused person; (d) That the accused know that it was forged; and (e) That the accused intended the forged document to be acted upon as an original/genuine to the detriment of the victim, see Alake v. State (1991) 7 NWLR (Pt. 205) 567; APC v. PDP (supra); Obioma v. State (2020) 3 NWLR (Pt. 1710) 45; Modibo v. Usman (2020) 3 NWLR (Pt. 1712) 470. I will, in due allegiance to the desire of the law, use these ingredients of forgery as the major barometer to measure/gauge the presence or absence of prima facie case against the appellant.

In an abiding loyalty to the expectation of the law, I have consulted the record: the bedrock of every appeal. My port of call is at the residence of the evidence of the respondent’s witnesses: PW1-PW5. Their prolix viva voce testimonies and the galaxy of documentary evidence colonise pages 659-788 and 962-1250, volume III, of the elephantine record. I have perused them with the finery of a tooth comb. Interestingly, they are comprehension-friendly. I have, in due obeisance to the law, situated the testimonies with the ingredients of the offences. The raison d’etre for the

juxtaposition is simple. It is to discover if the former, the evidence, satisfied the requirements/injunctions of the latter: the ingredients. The evidence, both oral and documentary, amply, demonstrate a serious nexus/connection between the appellant and the offences charged. Put differently, the evidence clearly, revealed some incriminating points against the appellant which demand certain explanations from him. Those explanations fall within perimeter of his personal knowledge. Since they are personal to him, he can only avail or starve the lower Court of them by entering a defence.

At the foot/bottom of page 1303, lines 24-28, volume III, of the windy record, the lower Court declared.
From the facts and evidence adduced so far in this case, it is my view that the prosecution has established a prima facie case which requires the defendant to state his own side of the divide.
I therefore hold that the Submission of No Case is wanting in this case and is hereby dismissed.

In the light of the earlier brief juridical survey, done in due consultation with the law, the solemn finding is an immaculate one. The lower Court did not, in the

least, fracture the law on no-case submission as to warrant the intervention by this Court.
By the same token, I find no justification, in law, to label the lower Court’s judicial exercise as one that smacked of miscarriage of justice: “A grossly unfair outcome in judicial proceedings as when a defendant is convicted despite lack of evidence on an essential elements of crime,” see Adeyemi v. State (2014) 13 NWLR (Pt. 1423) 132; Itu v. State (2016) 5 NWLR (Pt. 1506) 446; Gazzali v. State (2019) 4 NWLR (Pt. 1661) 98. The appellant, based on the available concrete evidence, was not smeared/inflicted with any negative incidents of miscarriage of justice. I therefore, dishonour the appellant’s salivating invitation to crucify the decision of the lower Court on the underserved altar of miscarriage of justice for want of legal justification. In the end, I have no choice than to resolve the lone issue against the appellant and in favour of the respondent.

On the whole, having resolved the mono issue against the appellant, the fate of the appeal is obvious. It is devoid of any grain of merit and is liable to the penalty of dismissal.

Consequently, I dismiss the appeal. I affirm the decision of the lower Court delivered on 26th March, 2019.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in full agreement with the exhaustive judgment prepared my learned brother, Obande Festus Ogbuinya, J.C.A.

BALKISU BELLO ALIYU, J.C.A.: My learned brother OBANDE FESTUS OGBUINYA JCA has availed me with the draft of the judgment just delivered. I agree with him that the Preliminary Objection of the Respondent is incompetent and it is also struck out by me.

On the main appeal, I adopt the reasoning and conclusion reached in the lead judgment as mine. I find no merit in the appeal and I dismiss it. The ruling of the trial Court in respect of Charge No: LD/7750C/2018 is affirmed by me. Appeal dismissed.

Appearances:

Uche Nwokedi, SAN with him, A. Ayodeji, Esq. For Appellant(s)

Rotimi Oyedepo, Esq. For Respondent(s)