AUGUSTINE ACHI V. THE STATE (2010)

AUGUSTINE ACHI V. THE STATE

(2010)LCN/4061(CA)

In The Court of Appeal of Nigeria

On Monday, the 29th day of November, 2010

CA/C/67/2009

RATIO

NO-CASE SUBMISSION: WHETHER AN ACCUSED PERSON HAS A RIGHT OF APPEAL OVER A NO-CASE SUBMISSION

In his Reply Brief of Argument, the learned counsel to the appellant contended that in view of the numerous cases on no-case submission that had found their way to the supreme court, it is no longer in dispute that the ruling on no-case to answer is appealable. He argued that it was held in Onagoruwa v. The state (1992) 5 NWLR (pt. 333) 504 that the case of Nwosu V. The State (1990) 7 NWLR (pt. 162) 322 was reached per incurriam and that an accused person has a right of appeal over a no-case submission. He urged court to allow this appeal. PER ISAIAH OLUFEMI AKEJU, J.C.A.

NO-CASE SUBMISSION: CIRCUMSTANCES UNDER WHICH A SUBMISSION OF NO CASE TO ANSWER MAY PROPERLY BE MADE AND THE DUTY OF THE JUDGE THEREON

The circumstances under which a submission of no case to answer may properly be made and the duty of the judge thereon have been elaborately explained by Udo Udoma JSC in Daboh & Anor V. State (1977) 5 SC 197 at 209-211 as follow: Before however, embarking upon such an exercise, it is perhaps expedient to observe that it is a well known rule of criminal practice that in criminal trial at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of an accused person postulates one of two things or both of them at once. Firstly such a submission postulates that there has been throughout the trial no legally admissible evidence at all against the accused person on behalf of whom the submission has been made linking him in any way with the commission of the offence with which he has been charged which would necessitate him being called upon for the defence. Secondly… that whatever the evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable court can be called upon to act on it as establishing criminal guilt in the accused person concerned…. Therefore, when a submission of no prima facie case is made on behalf of an accused person, the trial court is not thereby called upon at that stage to express any opinion on the evidence before it. The court is only called upon to take note and to rule accordingly that there is before the court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the record. If such is not the case, then the submission is bound to fail.” See also Tongo V. C.O.P. (2007) ALL FWLR (Pt. 376) 636; Aituma V. The State (2007) All FWLR (Pt.381) 1798. The judge is expected to find from evidence on record whether the prosecutor has at that stage made out a prima facie case to warrant the accused person being called upon to answer. PER ISAIAH OLUFEMI AKEJU, J.C.A.

WHAT A “PRIMA FACIE” CASE ENTAILS

WHETHER SUSPICION CAN BE BASIS FOR A FINDING OF GUILT OR CONVICTION IN A CRIMINAL PROCEEDING

It is now settled that however strong or great it may be suspicion cannot be basis for a finding of quilt or conviction in criminal proceedings. See Ahmed V. State (2001) 18 NWLR (pt. 746) 622; Ajor V. State (1997) 4 NWLR (Pt. 501) 511; Babalola V. State (1989) 4 NWLR (pt. 115) 264. PER ISAIAH OLUFEMI AKEJU, J.C.A.

WHEN CAN IT BE SAID THAT A PRIMA FACIE CASE HAS BEEN MADE OUT

A prima facie case can only be said to have been made out when the prosecution has presented evidence that establishes the elements of the alleged offence or offences devoid of any doubt in the mind of a reasonable court or tribunal. PER ISAIAH OLUFEMI AKEJU, J.C.A.

JUSTICES:

KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria

MASSOUD A. OREDOLA Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

AUGUSTINE ACHI – Appellant(s)

AND

THE STATE – Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A.(Delivering the leading Judgment): The appellant was one of the accused persons in case No.HJ/7C/2004 before the High court of Cross River state sitting at Ogoja on a three count charge of:
1. Conspiracy contrary to Section 518 (6);
2. Damaging trees contrary to Section 451;
3. Removal of boundary marks contrary to section 457; all of Criminal code all of Cap.31 Volume II Laws of cross River State of Nigeria.
The particulars of offence were that the appellant with other accused persons conspired among themselves on or about 15th July, 2001 at Ipoute Aliforkpa, Yala in Ogoja Judicial Division to effect unlawful purpose, to wit malicious damage of trees and removal of boundary marks planted and or erected by Dr. Paul Elanya Adi willfully and unlawfully damaging 300 Teak trees and 70 casuarina trees as we, as willfully and unlawfully removing beacon stones erected on the land by Dr. Paul Elanya Adi as boundary marks.
The accused persons (appellant inclusive) pleaded not guilty to the allegations and the case went to trial at which the prosecution cared 5 witnesses after which the learned defence counsel made a submission of no case to answer on behalf of the accused persons. The learned trial judge delivered a ruling and rejected the submission of no case to answer as a result of which the appellant filed this appeal.
The appellant had initially filed one ground of appeal but with the leave of court he filed five additional grounds. From these grounds of appeal, the learned counsel, Matthew Ojua Esq. raised the following issues for determination:
1. Whether the learned trial judge was right in overruling the no case submission and holding that there is a ground to proceed.
2. Whether the learned trial judge was right in applying the contents of the extra judicial statement of a co-accused in the determination of the fate of the appellant.
3. Whether the learned trial judge was right in holding that the defence of bonafide claim of right was not available to the appellant because he said he knew that the removal of beacons was wrong and forbidden by law.
4. Whether the learned trial judge was right in of the holding that rising of the defence of bona-fide claim of right amounted to admission of the commission of an offence, thereby making it otiose for the prosecution to proof its case beyond reasonable doubt.
5. Whether the learned trial judge was right in failing to be brief in his ruling on a no-case submission and making pronouncements that are conclusive of the guilt of the appellant.
The learned counsel submitted on issue No.1 that for a court to hold that there is a case to proceed against the accused person, the prosecution must have made out a prima facie case against the accused. He argued that a no-case submission postulates that there has been no legally admissible evidence at all to link the accused person with the commission of the offence alleged to warrant his being called upon for a defence, or that evidence against the accused has been so discredited that no reasonable court can convict thereupon. He submitted that the case against the appellant was based on suspicion and that suspicion on matter how high, cannot ground conviction, citing Orji v. State (2008) 10 NWLR (Pt. 1094) 31; Idowu v. State (1998) 9-10 SC 1; Onah v. State (1985) 12 NWLR (pt. 12) 236; Emine v. State (1991) 7 NWLR (pt. 204) 480; Ubo Chi v. State (1998) 8 NWLR (pt. 314) 697; Ahmed v. State (2001) 18 NWLR (Pt. 746) 622; F.R.N. v. Ekwenugo (2002) 3 NWLR (pt. 1021) 209.
On issue No. 2; the learned counsel submitted that admission made by an accused person in his statement to police is admissible against the maker only and not against his co-accused except where it is adopted. He cited R. v. Ajani (1936) 5 WACA 3; Oyakhire v. State (2007) ALL FWLR (Pt. 30) 604; Badmus v. C.O.P (1948) 2 WACA 432 and submitted that the learned trial judge was wrong when he applied the extra judicial statement of a co-accused to determine the defence raised by the appellant.
One issue 3, the learned counsel argued that the trial court was wrong in rejecting the defence of bonafide claim of right raised by the appellant and hording that the defence was not available to him a decision that was based on a wrong interpretation of section 23 of Criminal Code. On the correct interpretation of that provision, he cited Ibeziako v. The State (1989) CLRN 123; Nwakire v. COP (1992) 5 NWLR (pt.241) 289.
Still arguing on the bonafide claim of right in issue No. 4, the appellant’s counsel said the bonafide claim of right was raised as an alternative defence without conceding the fact that the appellant committed the acts complained of.
On issue No. 5, the learned counsel submitted that in a ruling on a no-case submission, the judge ought not to express opinion on the evidence before it or draw inferences or make comments that may be prejudicial to the case of the defence. He cited State v. Okoye (2007) 16 NWLR (pt. 1061) 607. He argued that the learned trial judge had evaluated the evidence in the case, arrived at conclusions and foreclosed the appellants, possible defences. He urged this court to hold that the ruling of the learned trial judge was not in line with the standard in a no-case submission. On the whole counsel urged that this appeal be allowed.
The respondent raised a Preliminary objection to the hearing of this appeal which the learned counsel to the respondent argued on pages 2-5 of the respondent’s Brief of Argument. He however raised two issues for determination in the event of failure of the preliminary objection.
The argument of the learned counsel on the objection is that the ruling on a no-case submission was not an appealable decision under Section 318 (1) of the constitution of the Federal Republic of Nigeria, 1999, and as such, this court has no jurisdiction to entertain it. He referred to the cases of Nwosu V. The State (1990) 7 NWLR (pt. 162); Ajisefini V. DPP (1998) 8 NWLR (pt. 562) 447; Onagoruwa V. The State (1992) 5 NWLR (Pt. 244) 713; Mohammed Olawumi V. The State (1990) 2 NWLR (pt. 133) 458. He made a review of these cases and urged this court to hold that this appeal is incompetent and should be refused in limine.
In the alternative the learned counsel formulated two issues for determination in the appeal;
1. Whether the learned trial judge was right in overruling the no-case submission and calling on the Appellant to enter his defence.
2. Whether the decision of the learned trial court was fettered by the length of the ruling in the no-case submission.
On issue No. 1, the learned counsel argued that there was abundant ground for the appellant to be called upon for explanation on the case. He submitted that a submission that there is no-case to answer may be upheld where:
(a) there has been no evidence to prove an essential element of the alleged offence; or
(b) when the evidence of the prosecution has been so discredited as a result of cross examination and such evidence has become so manifestly unreliable that no reasonable tribunal could safely convict on it. He cited Aminu V. The State (2005) ALL FWLR (pt. 244) 933; Ubanatu V. COP (2002) 2 NWLR (pt. 643) 115; Abacha V. The State (2002) FWLR (pt. 118) 1224 and submitted that a prima facie case was made against the appellant at the trial court which cared for some explanation from him. He argued that a case of conspiracy was made out against the appellant and submitted that non inclusion of somebody in the charge wit not weaken the case of conspiracy made against the appellant; citing Layiwola V. The State (1959 (IV) FSC 119.
Respondents’ counsel urged court to hold that there existed evidence on the record to establish the offences of malicious and unlawful damage to the economic trees as well as removing boundary beacons and to uphold the ruling of the learned trial judge that there is ground for proceeding against the appellant.
On issue number 2, the respondent’s counsel argued that the ruling of the learned trial judge was neither too lengthy nor too involving. He said the learned trial judge showed consciousness of the need not to enter into conclusion of the guilt of the accused persons and showed sufficient awareness that the case was still not conclusive at that stage.
On the whole the respondent’s counsel urged court to dismiss this appeal and return the case to the lower court for conclusion of the trial.
In his Reply Brief of Argument, the learned counsel to the appellant contended that in view of the numerous cases on no-case submission that had found their way to the supreme court, it is no longer in dispute that the ruling on no-case to answer is appealable. He argued that it was held in Onagoruwa v. The state (1992) 5 NWLR (pt. 333) 504 that the case of Nwosu V. The State (1990) 7 NWLR (pt. 162) 322 was reached per incurriam and that an accused person has a right of appeal over a no-case submission. He urged court to allow this appeal.
The preliminary objection of the respondent is that in view of the provision of section 318 (1) of the constitution of the Federal Republic of Nigeria 1999 this appeal is a nullity because that provision does not accord to a party a right to appeal against the ruling on a submission of no case to answer because it, does not amount to a decision.
Without doubt, the ruling on a no case submission is a determination of the issue (s) that arose therein, with a decision on whether the case should proceed beyond that stage followed by an order of discharge where successful. All these in my view are in line with the meaning ascribed to the word “decision” in section 318 (1) of the constitution of the Federal Republic of Nigeria, 1999 that in relation to a court decision means any determination of that court and includes judgment, decree, order, conviction sentence or recommendation. It is obvious from that definition that “decision” includes both a ruling and a final judgment of court.
I am in full agreement with the appellant’s counsel that the large number of cases that have been recorded in this court and the apex court on no case submission has reduced the objection of the respondent on the appellant’s right of appeal to a mere adventure. The cases are quite numerous and only a very few will suffice here; see: Ajidagba V. IGP (1958) 3 FSC 5; Ibeziako V. C.O.P (1963) 1 All NLR 61; Onagoruwa V. State (1993) 7 NWLR (pt. 303) 49;Ajiboye V. State (1995) 8 NWLR (pt. 414) 408; Emedo V. State (2002) 15 NWLR (pt. 789) 196; Mohammed V. State (2007) All FWLR (pt.366) 668; Ubanatu V. COP (2000) 1 SC 31; Aituma V. State (2007) All FWLR (pt. 381) 1798; Tongo V. COP (2007) All FWLR (Pt. 376) 636.
It is on this note that I hold that the preliminary objection completely lacks merit and I accordingly overrule it and proceed to determine the merit of this appeal.
All the five issues formulated by the learned counsel to the Appellant as well as the two raised by the learned counsel to the Respondent in their respective Briefs of Argument have come down to:
Whether the learned trial judge correctly approached the no case submission made by the appellant’s counsel and made the proper findings thereon.
The circumstances under which a submission of no case to answer may properly be made and the duty of the judge thereon have been elaborately explained by Udo Udoma JSC in Daboh & Anor V. State (1977) 5 SC 197 at 209-211 as follow:Before however, embarking upon such an exercise, it is perhaps expedient to observe that it is a well known rule of criminal practice that in criminal trial at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of an accused person postulates one of two things or both of them at once.
Firstly such a submission postulates that there has been throughout the trial no legally admissible evidence at all against the accused person on behalf of whom the submission has been made linking him in any way with the commission of the offence with which he has been charged which would necessitate him being called upon for the defence.
Secondly… that whatever the evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable court can be called upon to act on it as establishing criminal guilt in the accused person concerned…. Therefore, when a submission of no prima facie case is made on behalf of an accused person, the trial court is not thereby called upon at that stage to express any opinion on the evidence before it. The court is only called upon to take note and to rule accordingly that there is before the court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the record. If such is not the case, then the submission is bound to fail.” See also Tongo V. C.O.P. (2007) ALL FWLR (Pt. 376) 636; Aituma V. The State (2007) All FWLR (Pt.381) 1798. The judge is expected to find from evidence on record whether the prosecutor has at that stage made out a prima facie case to warrant the accused person being called upon to answer.

“Prima facie” case is an expression that has been accorded several definitions and descriptions. In Ubanatu v. C.O.P (2000) 1 SC 31 after reviewing earlier definitions Ogwegbu JSC explained it as follows at page 38.
“At the close of the prosecution’s case, a trial court should consider whether there is evidence which will suffice to support the allegation made in the charge and whether such evidence will stand unless the accused produces evidence to rebut it. If at the close of evidence for the prosecution there is no proof of an essential element in the said charge and a submission of no case is made, a trial court should uphold the submission.”
In the instant case I have had a very close and calm study of the evidence produced by the five (5) witnesses called by the prosecution following the plea of not guilty by the appellant and the other accused persons. Dr. Paul Eleanya Adi whose property allegedly destroyed and therefore a key witness was the PW1. The evidence of this witness from pages 17-19 of the record largely relates to how he acquired a piece of land for residential purpose and he started to plant seedlings on the land but at page 20 he said as follows:
“On 1st July, 2001, I was invited by 1st accused to his house. There I met other accused persons. They confronted me with the issue of the land, accused me of illegally entering their land, threatened to deal with me, they vowed to destroy my development on the land, and they resolved to remove the beacon stones. On 15th July 2001 I went with some labourers to plant 70 casuarinas seedlings … When I got there I discovered to my greatest dismay that the 10 beacon stones were removed and taken away by the accused.”
At page 32-33 of the Record however under his cross examination on 28th March, 2006, this witness (PW1) said “… On 15th July, 2001, I was at Alfokpa village. I went for the purpose of developing my parcel of land. It is my father’s village. I did not see the accused persons destroy anything in my land. On 16th July, 2001, I was in Alifokpa village.” Nobody informed me that he saw the accused destroying things on my land. I suspect they did it…”
The PW2, Pius Ogar Okpe testified that he interpreted during the process of giving rand to the PW1 and that his signature was on the lease agreement given to PW1. There is nothing in the evidence of this witness that related to the offence alleged against the appellant.
The PW2 said in his cross examination on page 39 as follows:
“They went and destroyed the beacon stones and all the things planted. I cannot tell the date. I only heard. I did not see those who removed because I was not there with them.”
The PW3 was Abini Ochi. The material part of the evidence of this witness on pages 41-43 of the record simply relates to what transpired at the Chiefs (1st accused) palace on an unspecified date in Jury, 2001 and nothing about the charge.
The PW4, Owali Ekiko, who was Secretary attached to Land Allocation Advisory Committee Ogoja testified only on how land was allocated to the PW1 by the committee.
Inspector Samuel Ebi of NPA Police, Onne, Port Harcourt, Rivers State was the PW5. He was the Investigator. The relevant portion of his evidence goes thus:
“the houses of 3 of the accused persons searched for possible recovery of the removed beacon stones.
In the house of the 1st accused some casuarinas tree seedlings were recovered in the roof of the 1st accused who is the Clan Head of Alifokpa.
The 1st accused person refused to sign the search warrant that it was the PW1 who kept the exhibit. To that effect the 1st accused made additional statement stating why he did not sign the search warrant.
After going through their statements and documents, I found out the accused persons actually committed the offence.”
PWS said further:
From my investigation no eye witness made a statement to me. PW1 did not tell me that he saw those who removed the boundary marks…. I cannot remember how many beacon stones were removed. I picked 7 destroyed trees; casuarinas and teak. It is a conspired act so I do not know which of them removed the beacon stones but all of them. I can not remember the time they removed the beacon stones. I was not there when they did it.”
The summary of the above pieces of evidence is that nobody saw the accused persons committing any of the allegations against them, but as clearly and unequivocally stated by him, the PW1 suspected them based on the encounter he had with them earlier regarding the dispute over that land.
It is now settled that however strong or great it may be suspicion cannot be basis for a finding of quilt or conviction in criminal proceedings. See Ahmed V. State (2001) 18 NWLR (pt. 746) 622; Ajor V. State (1997) 4 NWLR (Pt. 501) 511; Babalola V. State (1989) 4 NWLR (pt. 115) 264.
The learned trial judge did not consider the testimonies of the witnesses in the case, but devoted so much to analysis of the issue of bonafide claim of right which the learned defence counsel mentioned in his no case submission, even when the learned trial judge said on page 7 that he was considering “the damage or discredit which cross-examination is said to have done or otherwise to the testimony of PWS 1-5 star witness.” The evidence he lifted therein related to issue of acquisition of land.
Then on page 87 the learned trial judge said thus:
“At this stage the issue of the complainant or any other person seeing when the accused persons did the destruction or damage would not arise, would not conjure meaning and would not be in forensic point in the light of the bonafide claim of right raised by the defence in the first place. This cursorily interpreted means ‘yes I did it so what because I have the right to do it’… The accused person have as it were, reported themselves. So what more eye witness report is needed.”
A prima facie case can only be said to have been made out when the prosecution has presented evidence that establishes the elements of the alleged offence or offences devoid of any doubt in the mind of a reasonable court or tribunal. It cannot be premised on suspicion as relied upon in the instant case. The evidence of the witnesses in the instant case have not, in anyway linked the appellant with conspiracy which is an agreement to carry out an unlawful act; or willful damage and/or willful or fraudulent removal of beacon stones which he was never seen to nave committed, but merely suspected to have committed.
The learned trial judge did not properly consider the submission of no case to answer and he thereby arrived at a conclusion that was wrong and perverse. The issue in this appeal is consequently resolved in favour of the appellant, and with this view I believe it will be merely academic for me to embark on the issue of the length or quantum of the ruling of the learned trial judge as canvassed by the appellant’s counsel in his Brief of Argument.
On the whole, I find merit in this appeal and it is allowed. The ruling of the learned trial judge delivered on 4th August, 2008 is hereby set aside. In its place, I uphold the submission of no case to answer by the appellant and I discharge him accordingly.

KUMAI B. AKAAHS, J.C.A: I was privileged to read in draft the judgment of my learned brother Akeju, J.C.A. I agree that the appeal has merit and I accordingly allow it. The Ruling of the learned trial Judge overruling the no case submission is hereby set aside. The said submission ought to have been upheld and the accused discharged. The Appellant is accordingly discharged.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A: I have had the privilege of having a preview in draft of the elucidating lead judgment just delivered by my learned brother, Akeju, J.C.A. I am in complete agreement with his reasoning, resolution of the various issues raised in the instant appeal coupled with his final conclusion reached thereon. I adopt them as mine. I also find merit in the appeal and it is accordingly allowed by me. I further set aside the ruling of the learned trial judge wherein he overruled the no case submission made by the appellant. The appellant is discharged accordingly.

Appearances

Matthew Ojua Esq. For Appellant

AND

Peter Sunday Bisong Esq. Deputy Director, Ministry of Justice, Calabar For Respondent