OKO ATUTU & ORS v. THE STATE (2013)

OKO ATUTU & ORS v. THE STATE

(2013)LCN/6518(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 19th day of November, 2013

CA/C/76C/2012

RATIO

CONDITIONS TO DETERMINE WHETHER AN EVIDENCE DISCLOSES A PRIMA FACIE CASE

It, simply, comes to this: evidence discloses a pima facie case when it is such that if un-contradicted and if believed, will be sufficient to prove the case against the defendant, Ohwovoriole v. FRN [2003] 2 NWLR (Pt. 803) 176; [2003] 1 SC (Pt. 1) 1; (2003) LPELR-SC.392/2001; Ajiboye v State (1994) 8 NWLR (Pt. 364) 587; Ekunugo v. FRN (2008) 15 NWLR (Pt. 1111) 630; [2008] 7 SC 196; Tongo v. C.O.P. (2007) LPELR-SC.105/2000; Abacha v. State (2001) 3 NWLR (Pt. 699) 35; Daboh v State (1977) 5 SC 197. Per CHIMA CENTUS NWEZE, J.C.A.

WORDS AND PHRASES: HEARSAY EVIDENCE

The law is also firmly established that hearsay evidence is not admissible in evidence as proof of the facts stated therein. Hearsay evidence simply put, is the statement by a person, oral or written, who is not called as a witness in a trial, civil or criminal, given by a witness as proof of the facts contained therein. It arises where a witness in a trial and in his testimony, repeats a statement made by another person who was not a witness in the case, in order to prove the truth of the facts stated. Thus to prove that an accused person committed an offence with which he was charged before a court, a witness will not be allowed to offer as evidence or testify that he heard someone else say that the accused had committed the offence. Section 37 of the Evidence Act, 2011, as amended, defines hearsay evidence as follows:-
“37. Hearsay means a statement-
a) oral or written made otherwise than by a witness in a proceeding; or
b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.”
The Section 38 of the Act tacitly provides that:-
“38. Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act.”
See Subramaniam v. Public Prosecutor (1956) 1 WLR, 965; Ozude v. IGP (1965) 1 ALL NLR, 102; Aiworo v. State (1987) 2 NSCC, 710; Oguko v. State (1991) 2 NWLR (175) 578; Buhari v. Obasanjo (2005) 7 SC (Pt. 1) 1; Omangh v. State (2006) ALL FWLR (306) 930; JSC v. Omo (1990) 6 NWLR (157) 407. Per MOHAMMED LAWAL GARBA, J.C.A.

WHEN IS A PIECE OR PIECES OF EVIDENCE DEEMED CONTRADICTORY

In law, therefore, a piece or pieces of evidence are said to be contradictory if it/they assert/s or affirm/s the opposite of what other piece/s of evidence assert/s or affirm/s and by itself/themselves, inconsistent by being mutually repugnant and cannot both stand. Two pieces of evidence are inconsistent when they are mutually exclusive such that if one is true, the other must be false. See Ogoala v. State (1991) 2 NWLR (125) 509 at 525; Isiekwe v. State (1999) 9 NWLR (617) 43 at 69; Asanya v. State (1991) 3 NWLR (180) 422; Gabriel v. State (1989) 5 NWLR (122) 457 at 468; Kwagshir v. State (1994) 2 NWLR (328) 592. Per MOHAMMED LAWAL GARBA, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

1. OKO ATUTU
2. OGBOR UKWA
3. SUNDAY PETER
4. FRANCIS AGU
5. ODUMA JOSEPH
6. DANIEL OGAR
7. OKO OGAR ADAM
8. EMEGU ODEY
9. OWAJA OGABOR
10. ODAMA ODAGBOR
11. EDE OKO
12. CHRISTIANA ANTHONY
13. LETTER IMEGU
14. UGA OTUMA Appellant(s)

AND

THE STATE Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of Cross River State sitting at Ogoja in the four (4) counts charge No. HJ/2C/2011 against the Appellants by which the no case submission made for the Appellants was overruled and they were called upon to enter their defence in the case. From the information in the charge, the facts of the case against the Appellants are that they, on the 10/5/2010, at Oloko-Agwape village in Yala Local Government Area, conspired to and unlawfully assembled, caused malicious damage and stole a motorcycle, 12 goats, two (2) bicycles and bush meat, property of Oganode Awoko Ipuole. Five (5) witnesses testified for the prosecution at the trial and, at the end of their evidence, a no case submission was made on behalf of the Appellants, ruling on which resulted in the present appeal as stated above.

The Appellants’ notice of appeal filed on the 12/3/2012, contains seven (7) grounds of appeal from which six (6) issues are said to arise for determination in the appeal at paragraph 3.1 on page 4 of the Appellant’s brief filed on the 31/5/2012. They are as follows:-
1) Whether there was legally admissible evidence before the lower court based upon which the lower court held that prosecution has made out a prima facie case for the accused persons to answer?
2) Whether the lower court was correct in picking and choosing between the violently conflicting evidence of the prosecution witnesses to enable him overrule the no case submission?
3) Whether the prosecution was able to prove beyond reasonable doubt all the essential elements of each of the offences the appellants were charged with?
4) Whether the lower court was not in error in not discharging and acquitting all the appellants in all the counts on the ground that the prosecution’s evidence was so discredited by cross examination that no reasonable tribunal could convict upon it?
5) Whether the failure of the prosecution to call vital witnesses was not fatal to her case which should have resulted in the appellants’ discharge and acquittal?
6) Whether the lower court did not fall into error in failing to discharge and acquit the appellants on grounds of poor investigation of the matter by the police?

In the Respondent’s brief filed on 15/4/2013 but deemed on 17/9/2013, a lone issue is said to arise for decision in the appeal, thus:-
“whether from the evidence on record the Prosecution/Respondent made out a prima facie case against the Accused/Appellants to warrant their defence.”

Clearly, all the issues submitted by the learned counsel for the Appellants above are subsumed and concisely contained in the sole issue formulated by the Respondent’s issue. Since the primary complaint and attack on the decision of the High Court by the Appellants is that it was wrong in law to have overruled their no case submission, the crucial issue that calls for decision is whether that decision is right or wrong in law.

In Criminal Procedure and Practice, the law is now elementary that an accused person will only be called upon by the court to enter a defence to any charge/s for which he stands trial, if at the close of the evidence by the prosecution in proof of the charge/s, it appears to it that a case which warrants explanations from him, has been made out or shown by the evidence and which in the absence of such explanations, will be sufficient in law for conviction for the charge/s. A decision therefore of the issue whether the evidence adduced by the Respondent at the trial of the Appellants before the High Court was/is such that if believed without explanations from them would ground their conviction for all, some or any of the charges they were prosecuted for, would fully cover all the six (6) issues raised by the learned counsel for the Appellants.

For being precise and concise, I intend to use the issue framed by the learned counsel for the Respondent which has been addressed by the learned counsel for the Appellants in the submissions on his issues, in the determination of the appeal.

The learned counsel for the Appellants, relying on Ubamatu v. Commissioner of Police (2000) FWLR (Pt. 1) 138 at 142 on when a no case submission can be made and when a prima facie case is made out in a trial, submitted that the High Court was wrong to have overruled the no case submission made by the Appellants on all the counts of the charge against them.

Learned counsel said there was contradiction between the evidence of PW1 and PW2 on the date the incident leading to the charge occurred. That PW1 said it was 10/5/2010 while PW2 said it was 10/5/2011 and that there was no evidence of the unlawful assembly by the Appellants but only of the destruction of property. According to him, the evidence of PW2 was hearsay because he did not say in his statement to the police, what was destroyed by the Appellants and that of PW1 was also hearsay because he had said he was not present when his property was destroyed. It was his argument that there was no evidence of planning the unlawful assembly by the Appellants and urged us to hold that the counts II and III of the charge were not proved.

On count IV, learned counsel’s submissions are that the evidence before the High Court was that the motor cycle and bicycles in question were damaged and not stolen, citing page 68, line 16 of the record of appeal. That the evidence on the 12 goats was inconsistent while the evidence on the bush meat was hearsay which is incapable of proving a prima facie case. We are urged to discharge the Appellants on the count.

Learned counsel said on count 1 that because all the substantive offences have failed, it must fail especially on ground of the differences in the evidence of PW1 & PW2 on the date the incident occurred.

For the Respondent, it was submitted that the law is settled that the prosecution must prove or establish a prima facie case against the accused person before he can be called upon to enter his defence on the authority of Abacha v. State (2011) NSCQR, 345. The evidence of PW1 and PW2 who were said to be eye witness, was said to have shown that the Appellants had gathered at the village square and from there to the PW2 house which they damaged. The High Court was said to be right to infer conspiracy from the evidence of the witnesses and that PW2 used 10/5/2010 and 10/5/2011 in his evidence interchangeably and so was not a material contradiction which destroyed the evidence. The case of Oselola v. State (2012) 6-7, MJSC (Pt. II) 41 was cited and it was contended that none of the parties was misled by the use of the two dates as the incident did not take place on two (2) dates. That the Appellants were first charged before the Magistrate Court, Yala in 2010, the year on the charge sheet and so the use of 2011 by PW2 is said to be minor. In further argument, it was submitted that the prosecution was at this stage not required to prove its case beyond reasonable doubt, but only to prove the essential elements of the offences and establish a prima facie case to warrant the High Court to call on the Appellants to make some explanations. The case of Okoro v. State (1988) 5 NWLR (94) 255 was cited for the submission and it was said that evidence of PW1, PW2 and PW3 proves that the property of PW2 was damaged by the Appellants and the items listed to have been stolen since they were not found after the damage by the Appellants. In conclusion, the court is urged to hold that the evidence adduced by the prosecution has shown a prima facie case against the Appellants and that the High Court was right in overruling the no case submission by the Appellants.

It may be observed that I have been very brief and restrictive in my review of the submissions by learned counsel as contained in their respective briefs of argument. I am mindful of the fact that this appeal is interlocutory in the sense that the charges against the Appellants before the High Court have not been determined on the merit since the guilt or otherwise of the Appellants for the offences they were charged with has not been determined in the decision appealed against. Just like the law has cautioned trial courts before which submissions of a no case to answer were made at the close of the prosecution evidence in criminal trials not to embark on the detailed forensic examination assessment or evaluation of the one sided evidence adduced before it at that stage, this court is also required by the law not to encroach on the undecided substantive issues in a case before a court in the determination of an interlocutory appeal from the case. For instance, in the case of State v. Audu (1986) 1 QLRN 220 at 227, it was held that when a no case submission was made, a court is not called upon to evaluate the credibility of the evidence before it and believe or disbelieve it, but to consider whether there is admissible evidence before it to warrant the accused person to be called upon to answer. Also in Abikake v. Police (1966) 1 ALL NLR, 132 it was held inter alia, that at that stage, the court has no right to consider the credibility of witnesses or evidence for the purpose of deciding whether or not there is a case to answer. Again, in the case of Daboh v. State (1977) 5 SC, 122, the Supreme Court had emphasized the position of the law when it held:-
“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.”
See also Bello v. State (1967) NWLR, 1; Ogoja v. C.O.P. (1975) 11 SC, 74. It was in order to avoid inadvertently delving into an examination or assessment of the credibility of the evidence adduced by the respondent before the High Court here that I just restricted my review of the submissions by learned counsel to that I have set out.
Now, by way of general statement, a submission made on behalf of or by an accused person at the close of the evidence by the prosecution in a trial that there is no case for him to answer in the charge/s against him, postulates one (1) or two (2) positions in law or even both of them. In the first instance, that throughout the trial no legally admissible and sufficient evidence was adduced by the prosecution linking him with the offence he was charged with to necessitate his being called upon by the trial court to enter a defence or offer explanations in respect of the charge/s. In the second instance, that even if there was such admissible evidence linking him to the offence/s charged, it has been so discredited that no reasonable court can act on it as proving the elements of such offence/s to warrant the finding of guilt in the case. The submission is entirely premised on the absence of legally admissible evidence on which a court could convict an accused person for the offences he was charged and being tried for, if believed by the court. See Daboh v. State (supra) at 209; State v. Audu (supra) at 228; Chianugo v State (2001) FWLR (74) 242; Abacha v. State (supra) also reported in (2002) FWLR (118) 1224 at 1337; Duke v. State (2003) FWLR (171) 1654 at 1688; Adeyeni v. State (1991) 6 NWLR (195) 1; Igabele v. State (2004) 15 NWLR (896) 314; Aituma v. State (2007) 5 NWLR (1028) 466. In addition, the procedure for making the submission of a no case to answer by an accused person in a trial may either, be
a) making the submission simpliciter at the close of the prosecution’s evidence thereby requiring the trial court to take a decision on it at that stage. In this situation, the trial court as enunciated in the cases cited above, is required to decide if the prosecution had adduced legally admissible evidence to prove the essential elements of the offence/s with which the accused was charged which if believed, could warrant the finding of guilt in the case. If the trial court finds such evidence and therefore overrules the no case submission by the accused person, he will be called upon to enter, open or commence his defence. The accused person is then entitled to call evidence to defend the charges against him and the trial court would then consider the entire evidence in the case adduced by both the prosecution and the accused person and deliver its final verdict of either guilt or acquittal in the case. It should always be borne in mind that under this procedure, what is to be considered by a trial court is not whether the evidence produced by the prosecution against an accused person is sufficient to justify a conviction, but whether the evidence has made out or shown a prima facie case requiring, at least, some explanations from the accused person as to his conduct or otherwise. See Ikoni v. State (1986) 3 NWLR (29) 340 at 366; Onagoruwa v. State (1993) 7 NWLR (303) 49 at 80; Akwa v. C.O.P. (2003) 4 NWLR (81) 461; Congo v. C.O.P. (2007) 4 SC (Pt. III) 1, (09) 12 NWLR (1049) 525.
b) in making the no case submission, an accused person or his counsel may choose to specifically rest his case on the evidence adduced against him by the prosecution. In this situation, the implication is that the accused person is deemed to have adopted the evidence led in the charge/s against him by the prosecution by way of his defence in the case and so would not give evidence or call witnesses for the defence. Here, the accused person or his counsel will be required to address the trial court at that stage, on all the issues in the evidence which are relevant to the proof of the case against him ranging from admissibility, insufficiency, credibility of the witnesses and the evidence, as well as the weight due to such evidence. In this situation, a trial court is required to consider, clinically scrutinize and evaluate or assess the evidence adduced by the prosecution, in line with the submissions by the accused person or his counsel, the facts and the relevant law and deliver a final decision as to the guilt or otherwise of the accused person to the charges for which he was tried.
An accused person who chooses this option of the procedure and rests his case on the evidence against him as his defence, takes the weighty risk of succeeding or failing on that evidence as he had waived thereby, his right and opportunity to testify or call evidence in his defence, subsequent to the final decision on the no case submission by the trial court. See Peter v. State (1992) 9 NWLR (265) 323; Akwa v. C.O.P. (supra).

Because the submission that there is no case for an accused to answer in a trial is made when the evidence adduced against him by the prosecution is said not to have established or shown a prima facie case which necessitates some explanations from the accused person, the question may be asked as what is a prima facie case in criminal trials. The term “prima facie” has not been defined in our evidence laws or laws of our criminal procedure in Nigeria, possibly because it is Latin in language. However plainly, the phrase means “on the face appearance” or “first appearance or instance”. In trials however, the phrase has received judicial definitions which include that in the case of Ajidagba v. IGP (1958) NSCC, vol. 120, where it was defined as follows:-
“A prima facie means there is ground for proceedings…”
In Chianugo v. State (supra) a “prima facie” case is said to be made out when evidence discloses evidence which if believed will be sufficient to prove the case against the accused, it is evidence that has covered all the essential elements of an alleged offence. Black’s Law Dictionary, 7th Edition, at page 1209 defines prima facie case as
(1) “the establishment of a legally required rebuttable presumption
(2) a party’s production of enough evidence to allow a fact tribunal to infer the fact at issue and rule in party’s favour.” See also Tongo v. C.O.P. (supra) at 191; Nyame v. FRN (2010) 421 NSCQR, 45 at 84; Abacha v. State (supra).
In the premises of the above general principles of law, I now turn to the decision by the High Court overruling the no case submission by the learned counsel for the Appellants at the close of the evidence adduced by the prosecution, along side the evidence.

The Ruling by the High Court appears at pages 95 – 99 of the record of appeal and because it contains a brief of the evidence adduced by the Respondent on all the four (4) counts charge against the Appellants which the High Court found to have shown or established a prima facie case that necessitates calling on the Appellants for explanations, it is expedient to set it out in full. This is the ruling appealed against.

“RULING
Fourteen accused persons are charged on information with four counts. After the prosecution closed its case, Counsel for the all accused persons submitted that the prosecution has not made a case against any of the accused persons to warrant calling on him to answer. At this stage I am not required to available the evidence but only to look to see whether there is admissible evidence on all the ingredients of the offences charged.

I will begin with court 2: unlawful assembly. Section 69 of the Criminal Code Law of Cross River State under which this count is laid defines unlawful assembly as follows:
“Where three or more persons, with intention to carry out some common purpose, assemble in such a manner or, being assembled, conduct themselves in such a manner, as to cause persons in the neighbourhood to fear on reasonable grounds that the persons so assembled will tumultuously disturb the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons tumultuously to disturb the peace, they are an unlawful assembly.
It is immaterial that the original assembly was lawful if, being assembled they conduct themselves with a common purpose in such a matter of (as) aforesaid.
An assembly of three or more persons who assemble for the purpose of protecting any house against persons threatening to break and enter the house in order to commit a felony or misdemeanor therein is not an unlawful assembly…..”
As stated in Brett & Meleans “The criminal law and procedure of the six southern states of Nigeria 2nd Edition by Madarikan and Aguda at paragraph 1482 at page 543, the test is whether the assembly gives grounds to persons in the neighbourhood to fear that it will commit or provoke a tumultuous breach of peace. In R v. Eyo (1962) 1 ALL NLR 515 it was held that the distinction between unlawful assembly and riot under the code is that an unlawful assembly gives ground to fear a tumultuous disturbance of the peace whereas riot requires that the peace shall actually be disturbed in a tumultuous manner.
PW1 said on 30/6/2011 thus:-
“On 10/5/2010 at about 7.20 a.m. I left Echumoga village to Echumofana to write my Senior School Certificate Examinations. I saw a large crowd including the accused person. They carried sticks and cutlasses…. I saw the accused singing war songs and breaking my father’s buildings.”
Only the underlined portion is material for our purpose here. During cross-examination, the witness said:
“I met the crowd there. They were already breaking houses when I got there.”
PW2 said:-
“I hid in my sitting room,…. I heard sixth accused (Cathechist) shouting, “Holy Ghost fire”. That everything will end that day. I heard first accused calling people to come up …”everybody move up.” They moved and got to my gate.” Those pieces of evidence show that people, including the accused persons, gathered with sticks and cutlasses and moved up to the gate of PW2. They started breaking the houses of PW2. It is only left for me to decide whether they conducted themselves in such a manner as to cause persons in the neighbourhood to fear on reasonable grounds that the persons so assembled will tumultuously disturb the peace or that they will provoke other persons tumultuously to disturb the peace. There is prima facie evidence from the above evidence in support of this charge and I call upon the accused persons to offer their explanations.
Count 3 is for malicious damage to property. PWs 1 & 2 said they saw the accused persons destroying the property of PW2.
Counsel for the accused persons fell into error in his address when he went into how the property was damaged: whether by breaking down or by fire. This is not the stage for that. Section 451 of the criminal code law under which the charge is laid does not make such distinction. There is prima facie evidence put in by the prosecution that accused persons and others destroyed PW2’s house. A prima facie case is a case upon which the accused persons can be convicted, if believed. Accused persons are called upon to offer their defences.
Count 4 is for stealing:
1. Daylong motorcycle
2. 12 goats
3. 2 bicycles
4. Dried bush meat from PW2
PW2 said the above items were in his house when the accused persons destroyed his house and that after the destruction he could no longer find those items in his house. That is prima facie evidence of stealing those things. It is now time for them accused persons to tell me what happened, and if they do not, I can convict them on the evidence of PW2 alone.
Count 1 is one of conspiracy: The evidence of PWs 1 & 2 is that the accused persons gathered at the village square and from there moved on to damage the houses of PW2. A court can infer conspiracy from the fact of doing things together. Upon that inference I can convict the accused persons, so, they owe me an explanation which I call upon them now to offer.
The no case submission is overruled in respect of all the counts and all the accused persons. They are hereby called upon to offer their defences.

It can be observed that the above finding by the High Court is primarily based on the evidence of PW1 and PW2 the relevant extracts of which were set out in the ruling. The requirement of a prima facie case, it may be recalled, is that there is some admissible evidence which if believed by the court and no explanations were offered to controvert it, would warrant a conviction for the offence charged.
The challenge by the learned counsel for the Appellants on the evidence of PW1 and PW2 on the all counts of the charge is that the evidence was contradictory in respect of the date of the incident and that it was hearsay on the nature and extent of damage to PW2’s property and the unlawful assembly. That PW1 and PW2 were not eye witnesses.

Let me say that contradiction in evidence of a witness/s in a criminal trial is not a defence but is considered where material, to be crucial in the discharge of the burden of proof beyond reasonable doubt imposed by the law on the prosecution who charges any person before a court of law, with the commission of a crime or criminal offence. Ordinarily, contradiction means to say the opposite and thus a contradictory evidence is evidence which asserts or affirms the opposite of what other evidence asserts or affirms.

The learned counsel are right that the law is that contradictions in the evidence of a witness/s for the prosecution in a criminal trial which are material in the proof of the essential elements of the offence/s with which an accused person was charged are bound to result in doubts in the prosecution’s case which the law requires, must be resolved in his favour. Where such material contradictions are shown to exist in the prosecution’s evidence, the standard of proof beyond reasonable doubt would not be met or satisfied and so are fatal to the case. Let me point out that in criminal trials, the fact is issue which requires proof beyond reasonable doubt by the prosecution is the charge/s against the accused person as to whether or not he committed the offence/s contained therein. Consequently, any/every piece of evidence on the proof of the essential elements of such offence/s is material for the charge and the discharge of the burden of proof by the prosecution in the case. Any contradictions as defined above, in such piece/s of evidence would therefore be material in the case for the purpose of the standard proof required by law. See Onuoha v. State (1989) 1 NSCC, 411; Namsoh v. State (1993) 5 NWLR (292) 129; Isibor v. State (2002) FWLR (98) 843; Egwim v. State (1998) 1 NWLR (532) 59; Dibie v. State (2007) ALL FWLR (363) 83; Dagayya v State (2006) ALL FWLR (308) 1212.

In the case of the Appellants, I have read the evidence of PW1 and PW2 at pages 63 – 68 and 68 – 75 and 77 respectively of the record of appeal and I agree with learned counsel for the Respondent that the use interchangeably of 10/5/2010 and 10/5/2011 by PW2 in his testimony as to the date when the incident happened did not relate to any essential elements of the offences the Appellants were charged with. For none of the counts of the charge is the date of the commission of the offence an essential element that the law requires to be proved beyond reasonable doubt. The Appellants and indeed their learned counsel did not show any inclination that they were in any doubt as to the actual date on which the incident leading to their arraignment on the charge before the High Court, happened or occurred. The date on which the incident occurred, the 10/5/2010 was clearly stated in the charge and the statements made by all the Appellants in respect of the charge to the Police during their investigation of the incident, were made on various days of May, 2010 after the 10/5/2010, as borne out by the statements at pages 10-26 of the record of appeal. Since the date of the incident is not one of the essential elements of any of the offences the Appellants were charged with and was not in dispute or doubt, the use of the date with any other date but particularly the 10/5/2011 by PW1 does not amount to any material contradiction of the date the incident occurred but minor in accuracy in the year and not the date of the incident. The difference in the two dates mentioned by PW2; a seventy-five (75) years old man by his statement at page 5 of the record of the appeal, it may be observed, was only on the year and not the day or month of the incident. Such a difference is far from and does not amount, in the circumstances of the case, to any material contradiction in the evidence of the Respondent in the proof of any offences with which the Appellants were charged.

Furthermore, there is nothing that can correctly be described as hearsay in the evidence of the witnesses on the nature and extent of the damage to PW2’s property and the unlawful assembly by the Appellants. The evidence on its face, as highlighted by the High Court in its Ruling, shows that the Appellants with other people had gathered at the village square, armed with sticks and cutlasses, singing war songs and the 3rd Appellant even holding a gun (see page 63, line 1-13 of the record of appeal) from where they were moved to and damaged the property of PW2. Perhaps, I should also say that I find nowhere in the cross examination by the Appellants’ counsel of the said witnesses, where the evidence was discredited to such an extent that rendered it inadmissible and or incapable of being acted upon by a court, if believed, to convict the Appellants for the offences to which it relates.

In particular, the High Court is right in its ruling that the offence of conspiracy can in law be inferred from the facts and evidence of the conducts of the Appellants and does not require proof of express agreement between and by them. See Odunaye v. State (2001) 1 SC (Pt. 1) 1 at 6-7, (01) FWLR (38) 1203 at 1213; Egunjobi v. State (2002) FWLR (105) 896 at 927-8; Ogbu v. State (2007) ALL FWLR (361) 1657 at 1674; Alaoape v. State (2001) FWLR (211) 1872 at 1898.

In the final result, for reasons set out above, I find that the evidence adduced by the Respondent at the trial of the Appellants before the High Court was admissible evidence in proof of the offences they were charged with, which in the absence of explanations from them, would warrant conviction for the offences. The evidence in the circumstances of the case has established and shown a prima facie case against the Appellants which in law, necessitates their being called upon by the High Court to enter their defence. The High Court was right to have so found and held in the Ruling appealed against.

Before concluding this judgment, I would like to observe that learned counsel for the Appellants had made submissions that the Respondent had failed to call vital witnesses and so had not proved its case against the Appellants beyond reasonable doubt. I should just point out that the High Court as seen in the during set out earlier, considered the evidence adduced before it in proof of the offences the Appellants were charged by the Respondent, as it was required to do in law, in the determination of the no case submission made by the learned counsel which incidentally, is impari materia with the Appellants’ brief in this appeal. At this stage, as was demonstrated in the cases cited on the point, the High Court was not called upon by the Appellants to determine whether the charge was proved beyond reasonable doubt as required by law, but to simply consider if the evidence has disclosed or shown on its face, reasons to proceeding in the trial by calling on the Appellants to offer explanations to challenge or controvert the state of that evidence. As pointed out earlier, the High Court can only properly embark on the determination of whether there was proof beyond reasonable doubt in the final decision in the case by evaluating or assessing the credibility of the witnesses and sufficiency of the evidence adduced in the case in one of two (2) situations;
a) when both parties had adduced evidence and addressed it on all the issues raised in the case and
b) when at the close of the prosecution’s case, the Appellants chose not only to make a no case submission simpliciter, but also rested their case on that of the Respondent by relying on the evidence so far adduced and thereby waiving the right and opportunity to give evidence and/or call witnesses in defence if the submission did not succeed.

The Appellants’ case did not fall under any of the above situations and the High Court had no duty to consider anything outside the evidence placed before it by the Respondent in its determination of the Appellants’ no case submission. Failure to call any witness whatsoever at that stage, was not part of the evidence before the High Court and so not relevant in the decision on the no case submission. Be that as it may, the Appellants have not appealed against the failure by the High Court to consider the failure to call what the learned counsel for the Appellants called “vital witnesses”.

Ground 5 of the Appellants’ notice of appeal is not on the failure by the High Court to consider the issue which was raised in the learned counsel’s no case submission before it, but as part of the issue raised and argued in support of the no case submission in this appeal. That is an issue for consideration in the determination of whether there was proof beyond reasonable doubt at the appropriate stage when the evidence would be evaluated, credibility and probative valued ascribed by the High Court.

Consequently, I find no merit in the appeal and dismiss it. The Ruling of the High Court delivered on the 5/3/2012 is hereby affirmed and the Appellants shall enter their defence to the offences they were charged with as directed by that court.

CHIMA CENTUS NWEZE, J.C.A.: I had the advantage of reading the draft of the leading judgment which my noble Lord, Garba, JCA, just delivered now. I am persuaded by the splendid reasoning and the most cogent conclusion.

Ever since Abbot FJ, in Ajidagba v. Police (1958) 3 FSC 5, approvingly, adopted the definition of the phrase “prima facie” case from the Indian decision in Sher Singy v. Jitendranathsen (1931) I.L. R. 59 Calc 275, subsequent decisions have, consistently, endorsed it.

Against this background, in considering a no-case submission, the court’s duty is finite: it is only to determine whether the prosecution has made out a prima facie case; hence, it neither involves the evaluation of evidence nor the consideration of the credibility of the witnesses, State v. Audu (1986) 1 QLRN 220, 227; Daboh v. State (1977) 5 SC 122.

It is for this, and the more detailed, reasons in the leading judgment that I, too, endorse the leading judgment’s affirmation of the lower court’s ruling of March 5, 2012. I abide by the consequential orders in leading judgment.

ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading in draft the Judgment just delivered by my learned brother, Mohammed Lawal Garba, JCA. The issues raised in this appeal have been very comprehensively addressed by my learned brother. I completely agree with his reasoning and conclusion that this appeal is without merit. I will only make a few comments in support.

In considering the nature and requirements for determining a no-case submission, the Supreme Court, per Akintan, JSC in Ekwunugo v. FRN (2008) CLR 7(d) (SC), (2008) 10 MJSC 79, said:
“The main question raised in this appeal brings to the fore what a trial Judge should look for in a case where a no case submission is made of the close of the case for the prosecution. The position of the law is that a submission that there is no case to answer by an accused person means that there is no evidence on which even if the Court believes it, it could convict. In other words, certain essential element of the offence for which the accused stands charged was not proved by the prosecution. No evidence was led to prove such essential element. The question whether or not the Court believes the evidence led does not arise at that stage of the proceedings. The credibility of the witnesses also does not arise at that stage. This is because the trial of the case was at that stage not yet concluded. This is therefore the reason why the court should not concern itself with the credibility of witnesses or the weight to be attached to the evidence, even if they are accomplices. See Ajiboye v. The State (1995) 8 NWLR (Pt. 414) 408; R v. Coker 20 NLR 62; R v. Ekanem (1950) 13 WACA 108; Bella v. The State (1967) NMLR 1; Ajidagba v. Police (1958) 3 FSC 5; and Aguda, Criminal Law and Procedure of the Southern State of Nigeria, 3rd edition; (1982) paragraph 427, page 150.

A submission of no case to answer could therefore only be properly made and upheld when-(a) there has been no evidence to prove on essential element in the alleged offence; and/or (b) when the evidence prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it: See Ibeziako v. Commissioner of Police (1963) 1 SCNLR 99; Owonikoko v. The State (1990) 7 NWLR (Pt. 162) 381 and Adeyemi v. The State (1992) 6 NWLR (Pt. 195) 1. It follows therefore that what has to be considered at the stage of a no case submission is not whether the evidence against the accused is sufficient to justify conviction but whether the prosecution has made out a prima case requiring at least same explanation from the accused person: See Ajiboye v. The State, supra.”

In Ajiboye v. State (1994) CLR 11(G) (CA), (1994) 8 NWLR (Pt. 364) 587, Kalgo, JCA (as he then was) said:
“It is also my view that when a counsel makes a no case submission on behalf of his client, the saying that the prosecution has not made a prima facie case against his client and that the client should not therefore be made to face the ordeal and the rigour of the whole trial.
What then is prima facie case in criminal trial? In Ajigbade v. I.G.P. (supra) the Federal Supreme Court while considering the effect of making a prima facie case in a criminal trial, adopted in toto the meaning of that phrase prima facie as interpreted in the Indian case of Sher Sting v. Jitendranathen (1931) ILR 59 Calc. 275 where it was said that:-
What is meant by prima facie case? It only means that there is ground for proceeding… but a prima facie case is not the same as proof which comes later when the court had to find whether accused is guilty or not guilty.” (Per Grose J.) And “The evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused (Per Lort-Williams J)”.

The expression ‘prima facie’ was also considered in Duru v. Nwosu (1989) 1 NWLR (Pt. 113) 24 at 43 where Nnamani, J.S.C. said thus:
“It seems to me the simplest definition is that which says that “there is ground for proceeding”. In other words, that something has been produced to make it worthwhile to continue with the proceeding. On the face of it, “suggests that the evidence produced so far indicates that there is something worth looking at”.

In the consideration of a no-case submission, therefore it is the evidence before the trial court that must be considered. The trial court cannot go outside the evidence (oral and documentary) tendered by the prosecution in coming to any conclusion. The said evidence must be placed alongside the essential elements of the offence for which the accused/applicant is charged.

From the evidence adduced by the prosecution in this case, a prima facie case was made out against the Appellants, for which they could be convicted if no satisfactory explanation is elicited. The learned trial Judge was therefore in order to have so held.

For these and for the more comprehensive reasons given in the lead Judgment, I also dismiss this appeal, and affirm the Ruling of the lower court delivered on 5/3/2012 in charge No. HJ/2C/2011.

Appearances

P. S. EkpoFor Appellant

AND

Okoi Ukam, Ministry of Justice, CalabarFor Respondent