ADEMOLA YUSUF v. THE STATE
(2019)LCN/13559(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2019
CA/IB/72AC/2017
RATIO
PRIMA FACIE: WHEN WILL A PRIMA FACIE CASE BE MADE AND WHAT DOES IT MEAN
A prima facie case will be made out when the evidence adduced by the prosecution disclosed evidence which if believed by the Court will be sufficient to prove the case against the accused. It is evidence that has covered all the essential elements of an alleged offence. In other words, a prima facie case means that there is ground for proceeding with the trial but it is not the same as proof which comes later when the trial Court has to find whether the accused is guilty or not guilty.PER FOLASADE AYODEJI OJO, J.C.A.
NO CASE SUBMISSION: WHAT A TRIAL JUDGE IS TO DO WHEN THERE IS A NO CASE SUBMISSION
Where a no case submission has been pleaded, the trial judge is not called upon to evaluate the credibility or weight of the evidence adduced by the prosecution. He should also endeavor not to delve into the substance of the case at this stage as a decision to uphold or reject the submission should not depend upon whether he would at that stage convict or acquit but upon whether the evidence is such that a reasonable tribunal might convict.
In OKAFOR VS. THE STATE (2016) 4 NWLR (PT. 1502) PG. 248 AT 265 PARAGRAPHS B E, the Supreme Court held thus:
Thus at the stage of a no case submission, the question as to whether or not the evidence is believed is immaterial and does not arise.
The credibility of the witnesses is also not in issue. See ADEYEMI VS. STATE (1991) 6 NWLR (PT. 195) 1. A Court is also enjoined to be brief in ruling of a no case submission and not to make any remarks or observations on the facts in order not to fetter its discretion. See UBANATU VS. COP (SUPRA), OMISORE VS. THE STATE (2005) VOL. 1 Q. C. C. R. 148 AT 143 (2005) 12 NWLR (PT. 940) 591; ODOFIN BELLO VS. THE STATE (1967) NMLR 1. All that is required of the Court at this stage is to ascertain whether there is any evidence at all, no matter how slight linking the accused with the offence charged.PER FOLASADE AYODEJI OJO, J.C.A.
JUSTICES
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
ADEMOLA YUSUF – Appellant(s)
AND
THE STATE – Respondent(s)
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The Appellant, Ademola Yusuf and one Abdullahi Lamidi were on the 22nd of March, 2011 arraigned before the High Court of Justice Oyo State holden in Ibadan in charge No: I/54C/10 on a two count charge of conspiracy to commit armed robbery and armed robbery contrary to and punishable under Sections 6(b) and 1(2) (a) (b) of the Robbery and Firearms (Special Provision Act Cap. Rule 11 Laws of the Federation of Nigeria 2004.
The charge reads as follows:
COUNT I
That you ABDULAHI LAMIDI (M) and ADEMOLA YUSUF (M) on or about the 11th June, 2009 at Elenusoso Village, Ibadan, in Ibadan Judicial District did conspire together to commit felony to wit armed robbery and thereby committed an offence contrary to and punishable under Section 6(b) of Robbery and Firearm (Special Provision) Act, CAP. R11, Laws of the Federation of Nigeria, 2004
COUNT II
?That you ABDULAHI LAMIDI (M) and ADEMOLA YUSUF (M) on or about the 11th June, 2009 at Elenusoso Village, Ibadan, in the Ibadan Judicial Division while armed with offensive weapons such as cutlass and axe do rob one
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Pastor Peter Ndubuisi of the sum of Five Hundred and Ninety Naira (N590.00) and thereby committed an offence contrary to and punishable under Section 1(2)(a), (b) of Robbery and Firearms Act, CAP. R11 Laws of the Federation of Nigeria, 2004.
They both pleaded not guilty to the charge. The prosecution/Respondent called three witnesses who testified as PW1, PW2 and PW3 respectively. At the close of the case of the prosecution, Appellant?s counsel made a no case submission. The learned trial judge in a ruling delivered on the 14th of June, 2012 dismissed the no case submission and called upon the Appellant and his co-accused to enter their defence. See pages 79 ? 83 of the record.
Dissatisfied with the ruling, the Appellant filed a Notice of Appeal on the 25th of June, 2012. The Notice of Appeal at pages 84 ? 86 of the record contains one ground of appeal which reads thus:
?The learned trial Judge erred in law when she dismissed the no-case submission urged on behalf of the 1st accused person in respect of the said Counts at the close of the case of the prosecution.?
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The reliefs sought are as follows:
(a) An order allowing the appeal
(b) An order setting aside the decision of the lower Court calling on the 1st accused person to enter his defence.
(c) An order upholding the no-case submission urged upon the learned trial Judge.
(d) An order discharging and acquitting the 1st accused person/appellant
The learned trial Judge in his ruling gave a brief summary of the evidence of the prosecution witnesses. The ruling at pages 80 ? 82 of the record reads in part as follows:
?3 witnesses gave evidence for the prosecution. PW1 Mr. Madu Peter Ndubusi told the Court that at about 9.30 pm on the night of 11/6/2009, two men who were armed with cutlasses came to his house. The men ordered PW1 and his wife to open the door and threatened that they would be killed if they failed to obey. They smashed the sliding window with a stone but the burglary proof prevented them from entering the room. The 2 men demanded for money and continued with their threats. Due to the threats issued by the 2 men and fear, the wife of PW1 gave the men the money she had. The men went away temporarily but returned after a short while and were brandishing a big
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axe and using it to hit the window PW1 was able to grab the axe from inside. Meanwhile PW1 used his phone to call the vigilantes in the neighborhood. Unknown to the men the vigilantes had surrounded the house of PW1. One of the robbers ordered the 2nd one to go and get their gun. The one that went for the gun jumped over the fence and landed in the hands of the vigilantes. It was his cry that alerted his cohort and that one too jumped over the fence and was caught by the vigilantes after a hot pursuit. In the presence of PW1 the two men in the custody of the vigilantes were taken to the house of the chairman of the vigilante where PW1 had a good look at them for the first time.
From there they were taken to Eleyele Police Station by PW1 and the vigilantes.
Furthermore, PW2 CP1 Adeniyi Olufemi narrated before the Court that he was on duty at Eleyele Police Station when PW1 and some vigilantes brought the 2 accused persons to the station and made a report of armed robbery against them. The two accused were brought with an axe and a cutlass. PW2 arrested them and obtained their statements. PW2 thereafter transferred the case to the SARS.?
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Parties duly filed and exchanged their Briefs of Argument. The Appellants Brief of Argument filed on 8th of November, 2018 was settled by O. A. Okin of counsel. The Respondent?s Brief of Argument settled by Abdullahi Olawale Esq. filed on 14th of March, 2019 was deemed as properly filed and served on the 8th of April, 2019.
Learned counsel to the Appellant in the Appellant?s Brief of Argument identified a sole issue for determination to wit:
?Whether the learned trial Judge rightly overruled the no case submission made on behalf of the Appellant.?
For his part, learned counsel to the Respondent in the Respondent?s Brief of Argument formulated the following issue for determination:
?Whether the learned trial Judge was not right to have overruled the No-Case Submission made by the Appellant?s Counsel in his Lordship?s Ruling of 14th day of June 2012.?
The issues formulated by both parties are similar. I would therefore adopt the issue identified by Appellant?s counsel as the sole issue for determination in this appeal.
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ISSUE FOR DETERMINATION
?Whether the learned trial Judge rightly overruled the no case submission made on behalf of the Appellant.?
Learned Appellant?s counsel in paragraph 5.0 of the Appellant?s Brief submitted that from the evidence adduced by the prosecution witnesses and all Exhibits tendered in the proceedings the prosecution has not made out a prima facie case against the Appellant to warrant his being called upon to enter a defence. He relied on the case of KAZA VS. THE STATE (2008) 7 NWLR (PT. 1085) 125 AT 176 for the ingredients of the offence of conspiracy. Learned Counsel relying on the decisions in OLADEJO VS. THE STATE (1994) 6 NWLR (PT. 348) 101 AT 127 PARAGRAPHS B ? E and HARUNA VS. THE STATE (1972) 8 ? 9 SC 174 further submitted in paragraph 5.04 of the Appellant?s Brief that from the totality of the evidence before the Court, there was no scintilla of evidence to show that there was community of purpose, common intention or agreement or plan by the Appellant and the other accused person to carry out any unlawful or illegal act. He submitted in paragraph 5.05 of the Appellant?s Brief that the prosecution failed to establish the essential
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ingredients of conspiracy as charged in count 1.
Learned Counsel to the Appellant after setting out the ingredients of the offence of robbery submitted that the prosecution was unable to satisfy by evidence any of the ingredients of the offence of robbery. With respect to the Confessional Statements Exhibits B and B1 counsel submitted that the Court ought to test the veracity of a Confessional Statement before acting on it. He submitted further that there is a requirement that the Confessional Statement admitted should conform with the Judges rules one of which is that such Statement should be confirmed in the presence of a superior police officer. He argued that the confession in Exhibit B and B1 is not possible and not voluntary as the Appellant denied making the statements voluntarily.
?On the Judges rules, learned counsel in paragraph 5.25 of the Appellant?s Brief submitted that though the judges rules was followed, it was incumbent upon the prosecution to call upon the superior officer before whom the Appellant was taken to give evidence since the Appellant denied the voluntariness of the statements. He therefore urged us to hold
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that the Judges rule has not been properly complied with.
In paragraph 6.03 of the Appellant?s Brief, counsel submitted that the trial Judge while delivering the ruling on the no case submission made crucial findings prejudicial to the defence of the Appellant contrary to the law that the Court?s ruling on no case submission must be brief and make no remarks or observations of facts. He relied on the cases of UBANATU VS. COP (2000) NWLR (PT. 643) 115 AT 136 PARAGRAPH D and AJIBOYE VS. THE STATE (1995) 8 NWLR (PT. 414) 408 AT 416. He referred us to the lower Courts ruling at pages 80 (line 20), 81 (lines 1- 21) and 82 (lines 16 ? 20) on this point. Counsel submitted further that the learned trial Judges? finding on what constitute the elements of the offence and his analysis on the facts in line with the said elements is tantamount to prejudging the substantive cause. He finally prayed for an order of this Court upholding the no case submission made on behalf of the Appellant and discharge and acquit him.
?For his part, learned counsel to the Respondent urged us to dismiss the appeal. He submitted that the Appellant?s Counsel has
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not shown how the prosecution failed to establish the essential ingredients of the offences for which the Appellant was charged. He submitted that the learned trial Judge dealt with the no case submission in the most classic professional manner and that his ruling was brief and in tandem with the law. He submitted that the combined effect of the evidence and Exhibits on record was sufficient to invite the Appellant to enter his own defence and urged us to so hold.
The fundamental right of an accused person entrenched in Section 36(5) of the Constitution (as amended) is the presumption of innocence until proven guilty. Section 139(1) of the Evidence Act 2011 confers the burden of proving the ingredients of an offence beyond reasonable doubt on the prosecution. Therefore, where a plea of ?no case submission? is raised at the close of the prosecution?s case, the defence is stating that the prosecution has not adduced sufficient material evidence on which the Court may convict the accused person. See AJULUCHUKWU VS. THE STATE (2014) 13 NWLR (PT. 1425) PG. 654 PARAGRAPH B. The plea of no case submission is codified in
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Section 302 of the Administration of Criminal Justice Act which provides as follows:
?The Court may on its own or on application by the Defendant, after hearing the evidence against the prosecution where it considers that the evidence against the Defendant or any of the several Defendants is not sufficient to justify the continuation of the trial, record a finding of not guilty in respect of the Defendant without calling on him or them to enter his or her defence and the Defendant shall accordingly be discharged and the Court shall then call on the remaining Defendants if any to enter his defence.?
The above provision and similar provisions in preceding Criminal justice rules have been interpreted by the Courts. See ADEYEMI VS. THE STATE (1991) 6 NWLR (PT. 195) 1 AT 35 PARAGAPHS C ? D. IBEZIAKO VS. C. O. P. (1963) 1 ALL NLR 61; 1963 SCNLR 99; AJIDAGBA VS. IGP (1958) 3 FSC 5 (1958) SCNLR 60; In FAGORIOLA VS. THE STATE (2013) 17 NWLR (PT. 1383) 322 AT 336 ? 337 PARAGRAPHS D ? A, the Supreme Court per Muntaka Coomassie JSC held as follows:
?The pertin
