HON. IORWASE HERMAN HEMBE v. FEDERAL REPUBLIC OF NIGERIA
(2014) LCN/6976(CA)
RATIO
CRIMINAL LAW: WHEN A NO CASE SUBMISSION COULD BE PROPERLY MADE
A submission of no case to answer could therefore only be properly made and upheld when -(a) there has been no evidence to prove an essential element in the alleged offence, and/or (b) when the evidence adduced by the prosecution has been so discredited that no reasonable tribunal could safely convict on it: See Ibeziako vs. Commissioner of Police (1963) 1 SCNLR 99; Owonikoko vs. The State (1990) 7 NWLR (Pt.162) 381 and Adeyemi vs. 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 facie case requiring at least some explanation from the accused person: See Ajiboye vs. The State (supra). Per JOSEPH TINE TUR, J.C.A.
CRIMINAL LAW: RULES GOVERNING THE APPLICATION TO PREFER A CHARGE
Also in Ohwovoriole, SAN vs. FRN (2003) FWLR (Pt.141) 2019 at page 2033-2034, Kalgo, JSC (as he then was) held as follows: “In this case, the following documents were filed with the application for leave to prefer the charge:-
a. a copy of the charge;
b. list of prosecution witnesses;
c. proof of evidence (not written statement) of the said witnesses;
d. written statements, under caution of all the accused person.
It must also be understood that the provisions of Section 185(b) of the C.P.C. must be read with those contained in the rules governing the application to prefer a charge as in this case, and any application to quash the charge preferred by leave of the High Court, must necessarily involve the consideration of those provisions.
There is no doubt that the learned trial Judge has the discretion to grant or refuse leave to prefer the charge but the discretion as usual, must be exercised judicially and judiciously. In that exercise, he must ensure that he has taken into consideration all the materials placed before him including the relevant law applicable thereto. See UBA Limited vs. Stahlabau GMBH & Co. KG. (1989) 3 NWLR (Pt.110) 374. Per JOSEPH TINE TUR, J.C.A.
