DIRECTOR OF PUBLIC PROSECUTIONS v. BISHOP PAUL AUGUSTINE AKPAN
(2018)LCN/12375(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 20th day of February, 2018
CA/C/71C/2017
RATIO
COURT AND PROCEDURE: WHEN A NO CASE SUBMISSION IS MADE
“It also must be pointed out that at the stage a No Case submission is made, all that the trial Court is supposed to consider is not whether the evidence so far adduced by the prosecution against the accused is sufficient to justify conviction but simply whether the prosecution had made out prima facie case requiring some explanation from the accused person’s regard his conduct or otherwise. See DURU VS. NWOSU (1989) 4 WRL (PT. 113) 24; IKONU VS. THE STATE (1986) 3 NWLR (PT. 28) 340.@ 365; ONAGORUWA VS. THE STATE (1993) 7 NWLR (PT. 303) 49 @ 80. See also the case of UBANATU VS C.O.P. (2000) LPELR- 3280 (SC) WHERE Kalgo, JSC held that on a ‘submission of no case to answer’ it is wiser for a Judge or Magistrate to be brief of his ruling and make no remarks or observations on the facts: See R. VS. EKANEM 13 WACA 108. This is because in a ruling of an inordinate length, too much might be said which at the end of the case might fetter the discretion of the Judge or magistrate. See ODOFIN BELLO VS. THE STATE (1967) NMLR 1, R. VS. COKER & ORS. 20 NLR 623; AKINPELU AJANI VS. QUEEN 3 WACA 3.” PER STEPHEN JONAH ADAH, J.C.A.
TRUST: WHO IS A TRUSTEE
“For the purposes of this section, the term ‘trustee’ includes the following persons and no others –
(a) trustees upon express trusts created by a deed, will, or instrument in writing, whether for a public or private or charitable purpose;
(b) trustees appointed by or under the authority of an Act, Law or Statute for any such purpose;
(c) person upon whom the duties of any such trust as aforesaid devolve;
(d) executors and administrators.” PER STEPHEN JONAH ADAH, J.C.A.
Before Their Lordships
CHIOMA EGONDU NWOSU-IHEMEJustice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAHJustice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLEJustice of The Court of Appeal of Nigeria
Between
DIRECTOR OF PUBLIC PROSECUTIONSAppellant(s)
AND
BISHOP PAUL AUGUSTINE AKPANRespondent(s)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Cross River State sitting in its appellate capacity in Calabar Judicial Division delivered on the 19th December, 2016 by ENEJI J.
The Respondent had been charged before the Chief Magistrate Court, Grade 1, Calabar on 2 counts of stealing and conversion of land for personal use respectively, property belonging to Mount Zion Light House Gospel Church Inc. Calabar where he was a bishop. At the close of prosecution’s case the defence made a no case submission which was upheld by the learned trial Chief Magistrate.
Dissatisfied, the Appellant appealed to the Court below where the appeal was heard and dismissed in a judgment delivered as aforesaid on the 19th December, 2016.
Still dissatisfied, the Appellant filed a notice of appeal to this Court on the 3rd January, 2017 containing 3 grounds of appeal.
At the oral hearing of the appeal, Mr. Ukam, Senior State Counsel at the Cross River State Ministry of Justice adopted the Appellant’s brief filed on the 27th September, 2017 but deemed properly filed and served on the 18th January, 2018 as the arguments of the Appellant in furtherance of this appeal.
For the Respondent, Mr. Uno the learned lead counsel for the Respondent adopted the Respondent?s brief filed on the 31st October, 2017 but equally deemed properly filed and served on the 18th January, 2018 as the arguments of the Respondent in contesting this appeal.
The Appellant formulated 3 issues for determination albeit without tying them to the grounds of appeal, a most indolent attitude if I may say, but the said formulated issues were adopted by the Respondent. The said issues are as follows:
1. Whether the lower Court was right in holding that the extra judicial statement of the accused ‘Exhibit C’ is not a confessional statement mainly because it was not attested to before a superior police officer.
2. Whether the lower Court did not fall in error in holding that the prosecution/Appellant failed to prove a prima facie case against the Accused/respondent particularly in view of the admissions made by the Accused/Respondent in ‘Exhibit C’.
3. Whether the findings and judgment of the lower Court was not based on facts outside the printed records and largely speculative.
Let me start by stating that this appeal is against a decision in respect of a no case submission and that being so, issue 2 is the kernel of the complaint of the Appellant against the judgment of the Court below and its resolution will necessarily determine the fate of issues 1 and 3. I shall accordingly proceed with the said issue 2.
Arguing the said issue, the learned counsel for the Appellant, Mr. Ukam outlined the legal principles guiding a no case submission and submitted that the lower Court wrongfully evaluated exhibit C the confessional statement of the Respondent which on its own sufficiently constituted prima facie case against the Respondent. He referred to UBANATU VS POLICE (2000) 1 SCNJ 50, IGABELE VS THE STATE (2005) 1 NCC 69 at 81, ONAGORUWA VS STATE (1993) 7 NWLR (PT 303) 409 and CHIANUGO VS STATE (2002) 2 NWLR (PT 750) 225 at 235 236.
The riposte of Mr. Uno for the Respondent was that exhibit C could not be justifiably accredited in the circumstances of this case as being a confessional statement it was not taken before a superior police officer as required by law and it was accordingly inadmissible. He referred to SMART VS THE STATE (2016) 9 NWLR (PT 1518) 447, AMINU TANKO VS THE STATE (2009) 4 NSCR 91, GENERAL SANI ABACHA VS SAMUEL DAVID EKE SPIFF & ORS (2009) 4 NSCLR 48 at 67 and AMAECHI VS INEC (2008) 1 MJSC 1.
As stated earlier, the decision of the Court below emanated from a successful no case submission made at trial before the Chief Magistrate’s Court by the Respondent herein.
The meaning of a submission that there is no case for an accused person to answer is that there is no evidence on which even if the Court believes it, it could convict. The question whether or not the Court does believe the evidence does not arise at that stage neither is the credibility of the witnesses in issue at this stage. See R VS COKER & ORS 20 NLR 62.
The law is that a no case submission may properly be made and upheld when there has been no evidence to prove an essential element of the alleged offence or 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 could safely convict on it. See IBEZIAKO VS C.O.P (1963) 1 SCNLR 99, and STATE VS EMEDO (2001) 12 NWLR (PT 726) 131.
The point cannot be over-emphasized that all the law requires a Court to determine at the stage of a no case submission is whether the prosecution had made out a prima facie case, it is not to evaluate evidence or consider the credibility of witnesses even if the evidence adduced were that of an accomplice. See DABOH VS STATE (1977) 11 NSCC 309 at 315 and STATE VS EMEDO (supra).
It must also be clarified that a prima facie case is not the same as proof, which comes later when the Court is to make a finding of guilt of the accused, it is evidence which if believed and uncontradicted, will be sufficient to prove the guilt of the accused. SeeAJIDAGBA VS I.G.P. (1958) SCNLR 60 and EMEDO VS STATE (SUPRA) at 151-152.
In its ruling on no case submissions, no matter the elaborate submissions of counsel, the Judge must resist the temptation to go into extensive comments or premature evaluation of adduced evidence mainly because at the stage of a no case submission only one side of the case has been heard and it would be prejudicial to comment on the evidence or facts of the case at that stage. See ?CRIMINAL PROCEDURE IN NIGERIA, LAW AND PRACTICE? by OLUWATOYIN DOHERTY at 272-273 and R VS COKER (supra).
The above clarification becomes most important especially in view of the elaborate and extensive evaluation of the adduced evidence especially exhibit C by the trial Chief Magistrate and the Court below. The wise counsel of KUTIGI JSC (as he then was) on situations such as this readily comes to mind as follows:
“At the stage of no case submission, trial is not yet concluded and the Court should not concern itself with the credibility of witnesses or the weight to be attached to their evidence even if they are accomplices. The Court should also at this stage be brief in its ruling as too much might be said which at the end of the case might fetter the Court?s discretion. The Court should at this stage make no observation on the facts.” See AJIBOYE VS STATE (1995) 8 NWLR (PT 414) 408 at 413.
In the same vein, ADEMOLA CJN had earlier stated as follows:
“Whilst it is not the aim of this Court to discourage a Judge from discussing matters of interest in his judgment, we would like to warn against any ruling of inordinate length in a submission of no case to answer, as too much might be said, as was done in this case, which at the end of the case might fetter the Judge?s discretionIt is wiser to be brief and make no observation on the facts.” See CHIEF ODOFIN BELLO VS THE STATE (1967) NMLR 1 at 3.
All comments on exhibit C made by the Courts below were totally premature, prejudicial and totally out of place at the stage of a no case submission. Evaluation of evidence comes after the entire case is concluded and not at the interlocutory stage of a no case submission.
The Respondent herein was charged with 2 counts of offences of stealing pursuant to Section 390 (7) and Conversion of Trust Property pursuant to Section 434 (1) of the Criminal Code Law of Cross River State Cap C16. The provisions are as follows:
390. Any person who steals anything capable of being stolen is guilty of a felony and is liable, if no other punishment is provided, to imprisonment for three years.
(7) If the offender is a director or officer of a corporation or company, and the thing stolen is the property of the corporation or company, he is liable to imprisonment for seven years.
434. Trustees fraudulently disposing of trust property. Any person who, being a trustee of any property, destroys the property with intent to defraud, or, with intent to defraud, converts the property to any use unauthorised by the trust, is guilty of a felony and is liable to imprisonment for seven years.
The offender cannot be arrested without warrant.
If civil proceedings have been taken against a trustee in respect of any act done by him, which is an offence under the provisions of this section of this code, he cannot be afterwards prosecuted for the same cause, as for an offence, on the complaint of the person by whom the civil proceedings were taken without the sanction of the Court or judge before whom the civil proceedings were had or are pending.
For the purposes of this section, the term ‘trustee’ includes the following persons and no others –
(a) trustees upon express trusts created by a deed, will, or instrument in writing, whether for a public or private or charitable purpose;
(b) trustees appointed by or under the authority of an Act, Law or Statute for any such purpose;
(c) person upon whom the duties of any such trust as aforesaid devolve;
(d) executors and administrators.
The adduced evidence by the Appellant comprised the testimonies of its 3 witnesses and documentary exhibits which included exhibit C, the confessional statement of the Respondent.
After outlining the applicable legal principles, the trial Chief Magistrate proceeded to appraise and evaluate the adduced evidence with emphasis on exhibit C, the confessional statement of the Respondent stating as follows on pages 83-85 of the record of appeal:
In the instant case the accused admitted that he collected the 3.6 million naira meant for his installation as the president of the church but that he diverted the money when the installation was aborted to build the president quarters and lockup shops in front of his official residential quarters.
He stated that the lockup stores and the residential quarters are all located at No. 29 Mount Zion Road which is church land the rents he collected from the shop were used to defray the debts he incurred in building his official quarters and the lockup shops. The accused did not divert money to buy property elsewhere but used the money to build his residential quarters and the stores on church land. It is clear that the accused at the end of his tenure as the president of the church will vacate his official residence for the next president of the church. So also will he not take the shops away as they are built on church land and therefore church property.
The faux pas of the learned trial Chief Magistrate in embarking on this interlocutory and premature evaluation becomes more grievous when exhibit C is examined, as it contains the following portions in lines 7-11 of page 95 and 12-24 of page 96 of the record of appeal respectively:
It is true that since I have been collecting rent at the place, I have never remitted any amount to the church account. The amount of three million, six hundred thousand naira that was raised for my installation as the president was later diverted for the building of president’s quarters and lock-up shops at No. 29 Mount Zion Road Calabar. I once asked my lawyer, Barr William Agbor of Joe Agi Chambers, Calabar, to write a letter to all tenants in No. 29 Mount Zion Road, Calabar telling them that the property in which they are in belong to me and that they should not pay rent to anybody else.
The outlined portions of exhibit C support the contention of the Appellant that indeed the case presented at trial constitutes prima facie against the Respondent sufficient for him to enter into his defence. Issue 2 is accordingly resolved in favour of the Appellant and against the Respondent.
Issue 1 is whether the lower Court was right in holding that the extra judicial statement of the accused ?Exhibit C? is not a confessional statement mainly because it was not attested to before a superior police officer.
And issue 3 is whether the findings and judgment of the lower Court was not based on facts outside the printed records and largely speculative.
The subject-matters of these two issues are to be dealt with in the course of evaluation of evidence at the end of the trial and proceeding to them now especially with the conclusion earlier reached on issue 2 will have prejudicial implications for the substantive trial. They shall be accordingly discountenanced.
In the circumstances, there is merit in this appeal and I accordingly allow it. The judgment of the Court below is accordingly set aside.
In view of the premature extensive appraisal of the adduced evidence by the trial Chief Magistrate, the said Charge No. MC/664C/2011 is hereby remitted to the Chief Judge of Cross River State for reassignment to another Chief Magistrate other than the trial Chief Magistrate A.E. Adomi Esq. for trial to be commenced de novo.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the advantage of reading before now the judgment delivered by my learned brother, J.O.K. OYEWOLE, JCA.
I adopt the facts of this criminal appeal as meticulously set down in the lead judgment. I also agree with the reasoning and conclusion which I adopt as mine.
I agree that there is merit in this appeal and that it be allowed. The judgment of the Court below is accordingly set aside. I agree that Charge No. MC/664c/2011 be remitted to the Chief Judge of Cross River State for reassignment to another Chief Magistrate other than Chief Magistrate A.E. Adomi Esq. for trial de novo.
STEPHEN JONAH ADAH, J.C.A.: I read in draft the lead judgment of my learned brother, J.O.K. Oyewole, JCA, just delivered. I am in agreement with the reasoning and the conclusion of my learned brother that there is merit in this appeal.
I feel strongly in this case that there is the dire need to rekindle the age long advice of our Superior Court that a no case submission should not warrant detailed consideration of the evidence.
In OKAFOR VS. THE STATE (2016) LPELR-260604 (SC), Sanusi, JSC held as follows:
“I think it is apt to stress here, that when during a criminal trial, a submission of no case to answer is made on behalf of an accused person, that does not mean the trial Court was called upon at that point in time, to express any opinion on the evidence adduced before it. Rather, the trial Court is only called upon to bear in mind and note that there is no legally admissible evidence linking the accused person with commission of the offence he was charged with. If the submission is predicated on discredited evidence, such discredit must be apparent or clear on the face of the record. But if such is not the case, then the submission would be of no moment and shall fall and be overruled and dismissed. It also must be pointed out that at the stage a No Case submission is made, all that the trial Court is supposed to consider is not whether the evidence so far adduced by the prosecution against the accused is sufficient to justify conviction but simply whether the prosecution had made out prima facie case requiring some explanation from the accused person’s regard his conduct or otherwise. See DURU VS. NWOSU (1989) 4 WRL (PT. 113) 24; IKONU VS. THE STATE (1986) 3 NWLR (PT. 28) 340.@ 365; ONAGORUWA VS. THE STATE (1993) 7 NWLR (PT. 303) 49 @ 80.”
See also the case of UBANATU VS C.O.P. (2000) LPELR- 3280 (SC) WHERE Kalgo, JSC held that on a ‘submission of no case to answer’ it is wiser for a Judge or Magistrate to be brief of his ruling and make no remarks or observations on the facts: See R. VS. EKANEM 13 WACA 108. This is because in a ruling of an inordinate length, too much might be said which at the end of the case might fetter the discretion of the Judge or magistrate. See ODOFIN BELLO VS. THE STATE (1967) NMLR 1, R. VS. COKER & ORS. 20 NLR 623; AKINPELU AJANI VS. QUEEN 3 WACA 3.
In the instant case, the two Lower Courts went in excess of what the law requires of a consideration of a no case submission. For this and the more elaborate reasons advanced in the lead judgment, I allow this appeal and I abide by all the consequential orders made therein.
Appearances:
OKOI UKAM (SSCI MOJ, CRS)For Appellant(s)
U.A.UNO Esq.,with him, CHUKS ALICONU ESQ. and EDET AKAISO OTORO ESQ.For Respondent(s)
