OFFOR EVARISTUS OBIORA & ANOR v. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/12251(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2018
CA/L/859C/2018
RATIO
APPEAL: WHETHER LEAVE OF COURT IS NECESSARY
“It was held by this Court (Abuja Division) in Metuh v. F.R.N. (2017) 4 NWLR (pt.1554) 108 at 119 – 121 per the lead judgment prepared by Aboki, J.C.A., that a decision overruling a no case submission is interlocutory and where it requires looking at the evidence, as in this case, the leave of the Court must be sought and obtained before an appeal can be filed challenging the overruling of the no case submission; and that the failure to obtain the leave would render the appeal incompetent. The Supreme Court affirmed the decision of the Court of Appeal in Metuh v. F.R.N. (supra) in the Metuh v. F.R.N. (2018) 10 NWLR (pt.1628) 399.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
1. OFFOR EVARISTUS OBIORA
2. OFFOR ECO (NIG.) LTD Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is from the decision of the High Court of Lagos State (the Court below), overruling the no case submission of the appellants on sundry offences of obtaining the sum of N5 million by false pretence, stealing, forgery and use of false documents, as well as conspiracy to forge, and obtain money by false pretence contrary to Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, Section 419 of the Criminal Code of Lagos State, 2011, Section 364 of the Criminal Code of Lagos State, 2011, Section 363 of the Criminal Code of Lagos State 2011 and Section 6, 8(b) of the Advance Fee Fraud and Other Fraud Related Offences Act No.14 of 2006, respectively.
The respondent had closed its case after calling five (5) witnesses and tendering some documents in evidence as Exhibits. The appellants submitted on the no case that there was no scintilla of evidence in proof of the allegations of forgery, use of false document and stealing.
The appellants admitted through their learned counsel at the hearing of the appeal that they did not seek and obtain the leave of the Court to file the notice and ground of appeal; and that leave was not required as the appeal is on ground of law.
Pages 338 – 340 of the record of appeal (the record) contains the notice of appeal with a sole ground of appeal. For ease of reference the sole ground of appeal reads:
GROUNDS OF APPEAL
GROUND ONE
The Learned trial Judge erred in law herself when she held that the prosecution has made out a sufficient case on all the charges for the Appellants to answer.
PARTICULARS OF ERROR
1. By Section 239(1) and (2) of the Administration of Criminal Justice Law, 2011 (Lagos State), the lower Court is mandated to discharge a defendant where a case is not made out against the defendant sufficient to require him to enter upon his defence.
2. It is trite that a no-case submission by the defence entails that, and ought to be upheld where, there is no evidence to prove an essential element of the offence with which the – defendant is charged or 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 could safely convict on it. – Akpan v. The State (1986) 5 sc 186 at 204-205; Adeyemi v. The State (1991) 7 SCNJ (Pt.1) 131 at 159-160.
3. The law requires that the case that must be made out against a defendant must be such that as would be sufficient to require him to enter upon his defence. It is not such as only kicks up dust or suspicion against a defendant because suspicion, no matter how strong, is not sufficient proof of crime against a defendant. – Onagoruwa v. The State (1993) 7 NWLR (Pt. 303) 49 at 110; Ben Okafor v. C.O.P. (1965) NMLR 89; Agboji Abike & Anor. v The State (1975) 9 – 11 SC.
4. The Appellants were arraigned on 6 May, 2013 and later re-arraigned on 10 March; 2014, based on a five (5)-count Amended Information, dated 3 May, 2013. The ingredients of the five offences for which the Appellants were charged are clear in the various provisions of the laws creating them and have been subject of so much judicial attention by the Supreme Court and this Honourable Court that have churned out an enviable collection of case law on the issues.
5. Had the learned trial Judge properly considered and applied the provisions of the laws creating the offences, judicial decisions on what a no-case submission entails and the ingredients of the offences charged, it would have sustained the no-case submission made by the Appellants.
Obviously, the sole ground of appeal (supra) will require examining the evidence so far adduced by the respondent to gauge at a glance or prima facie whether the appellants have link with the commission of the offences charged. Even the brief of argument filed by the appellants on 06.07.18 refers to evidence here and there to urge that the ingredients of the alleged offences were not made out on the face of the evidence so far adduced by the prosecution.
The Supreme Court re-emphasised in the fairly recent case of C.O.P. v. Amuta (2017) 4 NWLR (pt.1556) 379 at 391 that:
“It is now settled by a long line of judicial authorities since Ibeziako v. C.O.P. (1963) 1 All NLR 61,(1963) 1 SCNLR 99 that a submission of no case to answer may be properly made and upheld in the following circumstances:
(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.
See: Okoro v. State (1988) 5 WLR (Pt.94) 255; Adeyemi v. The State (1991) 6 NWLR (Pt.195) 1; Abogede v. The State (1996) 5 WLR (Pt. 448) 270 and Suberu v. The State (2010) 1 NWLR (Pt. 1176) 494”.
It was held by this Court (Abuja Division) in Metuh v. F.R.N. (2017) 4 NWLR (pt.1554) 108 at 119 – 121 per the lead judgment prepared by Aboki, J.C.A., that a decision overruling a no case submission is interlocutory and where it requires looking at the evidence, as in this case, the leave of the Court must be sought and obtained before an appeal can be filed challenging the overruling of the no case submission; and that the failure to obtain the leave would render the appeal incompetent.
The Supreme Court affirmed the decision of the Court of Appeal in Metuh v. F.R.N. (supra) in the Metuh v. F.R.N. (2018) 10 NWLR (pt.1628) 399.
In conclusion, having not obtained the leave of the Court to file the notice of appeal, I find the appeal incompetent and hereby strike it out vide Metuh (supra).
UGOCHUKWU ANTHONY OGAKWU J.C.A.: I entirely agree with, and do not desire to add to, the decision of my learned brother, Joseph Shagbaor Ikyegh, JCA, which I was privileged to read in draft.
I adopt the entire decision as mine, with nothing more to add.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I agree with the leading judgment of my learned brother JOSEPH SHAGBAOR IKYEGH, JCA.
I also do not have any useful contribution or addition to make on the leading judgment.
Appearances:
Mr. L. C. Ohineme For Appellant(s)
The Respondent was unrepresented but served hearing notice.For Respondent(s)
