ABBA v. FRN & ORS
(2022)LCN/15939(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, January 18, 2022
CA/ABJ/CR/590/2021
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
ZULKIFIL ABBA APPELANT(S)
And
1. FEDERAL REPUBLIC OF NIGERIA 2. MURTALA H. NYAKO 3. ABDULAZIZ NYAKO 4. ABUBAKAR ALIYU 5. BLUE OPAL LIMITED 6. SEBORE FARMS & EXTENSION LIMITED 7. PACODA FORTUNES LIMITED 8. TOWER ASSESTS MANAGEMENT LIMITED 9. CRUST ENERGY LIMITED RESPONDENT(S)
RATIO
THE PRESUMPTION OF INNOCENCE OF AN ACCUSED PERSON
Now in accordance with the provision of Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty of the offence or offences for which he is arraigned before a competent Court of law or Tribunal. Similar provisions are contained in Section 135(1) (2) and (3) of the Evidence Act 2011 Cap. E14 LFN which provide:-
“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt the burden of proving reasonable doubt is shifted on to the defendant.”
It is thus beyond argument that the cumulative effect of the above provisions of the Constitution and the Evidence Act is that the burden and standard of proof in any criminal proceedings are squarely on the prosecution. It also means that until a Defendant is prima facie proved guilty he would not be called upon to put up a defence to any alleged criminal offence or offences against him. See
1. O. OSUAGWU VS THE STATE (2016) 16 NWLR (PART 1537) 31 AT 67 C- H per NWEZE, JSC who said:-…
2. UCHE ORISA V THE STATE (2018) 11 NWLR (PART 1631) 453 AT 466 C- D per GALINJE, JSC who said:-
“The law is settled that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See Akpan v. The State (1990) 7 NWLR (Pt. 160) 101; Adamu v. A.- G. Bendel State (1986) 2 NWLR (Pt. 22) 284. Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 provides that every person who is charged with criminal offence shall be presumed innocent until he is proved guilty. It is therefore plain that the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v. The State (1993) 7 NWLR (Pt 307) 511 at 531 paras A-C; Solola v. The State (2005) 5 SC (Pt. 1) 135; (2005) 11 NWLR (Pt. 937) 460; Bakare V. The State (1987) 1 NWLR (Pt.52) 579.”
3. CIMAR V. MUSTAPHA USMAN (2018) 15 NWLR (PART 1642) 320 AT 336 B – C where GALINJE, JSC said:-
“The law is settled that if the commission of a crime by a party, to any proceedings is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See Section 135 (1) and (2) of the Evidence Act, 2011, see Adamu v. A.-G. of Bendel State (1986) 2 NWLR (Pt. 22) 284, Akpan v. The State (1990) 7 NWLR (Pt. 160) 101, Sunday Amala v. The State (2004) 6 SCNJ 79 at 88, (2004) 12 NWLR (Pt. 888) 520; The State v. Olatunji (2003) 2 SCNJ 65, (2003) 14 NWLR (Pt. 839) 138. Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. Flowing from the provision of Section 36 (5) of the Constitution, the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt, and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 at 531, paras. A – C; Solola v. The State (2005) 5 SC (Pt. 1) 135, (2005) 11 NWLR (Pt. 937) 460.”
4. WAHEED BALOGUN V THE STATE (2018) 13 NWLR (PART 1636) 321 AT 328 F – G per GALINJE, JSC;
5. ALBAN AJAEGBO V THE STATE (2018) 11 NWLR (PART 1631) 484 AT 503 G – H per KEKERE-EKUN, JSC. PER IGE, J.C.A.
THE MEANING OF THE EXPRESSION “PRIMA FACIE CASE”
The expression “prima facie case” have received judicial pronouncements and consideration over the years. I call in aid the case of AJIDAGBA VS. INSPECTOR-GENERAL OF POLICE (1958) NSCC 20 AT 21 -22 per ABBOTT F. J. who said:
“We have been at some pains to find a definition of the term “Prima Facie Case. ” The term, so far as we can find has not been defined either in the English or in the Nigeria Court.”
In an India case however, SHER SINGH VS. JITENDRANA THESEN (1931) I.L.R 50 CAL C. 275, we find the following dicta:
“What is meant by a prima facie case? It only means that there is a ground for proceeding… But a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is guilty or not guilty… The evidence discloses a Prima Facie Case when it is such that if uncontradicted and it believed it will be sufficient to prove the case against the accused per Lort- Williams J.”
The position has been reiterated and reemphasized by the apex in the land in numerous cases. See:
1. IKUFORIJI V. FRN (2018) 6 NWLR (PT. 1614) 142 AT 159 G- H TO 160 A – per EKO, JSC who said:
“Prima facie means “first appearance”. The phrase, when it is applied to the rule on onus of proof in the law of evidence, means that the case is supported by such evidence, as are available, on every material issue of the offences charged that, if no rebuttal evidence is called; it is sufficient to establish the fact in issue. Thus, as it was stated in Police v. Ajidagba 3 FSC 5, reported as Ajidagba v. I.G.P. (1956) SCNLR 60; evidence discloses a prima facie case when the evidence is such that if, uncontradicted, and it is accepted, will be sufficient to prove the case against the accused person. Therefore, if at the close of the prosecution’s case, the evidence so far marshaled against the accused is such that if it could be presumed to be true in relation to the fact in issue, unless rebutted or disproved by some other evidence to the contrary, then, a prima facie case has been disclosed to warrant calling on the accused to offer his exculpatory defence. See Onagoruwa V. The State (1993) 7 NWLR (Pt. 303) 49 at 81 – 82; Tongo v. COP (2007) 30 NSCOR 180 at 192 – 193; (2007) 12 NWLR (Pt. 10 49) 525.”
2. CHYFRANK NIGERIA VS FRN (2019) 6 NWLR (PART 1667) 143 at 159 C -D per AUGIE, JSC who said:
“The question that comes up where a no case submission is made by an accused person is whether the prosecution made out a prima facie case requiring, at least, some explanation from an accused. See Tongo v COP (2007) 12 NWLR (Pt. 1049) 525 SC. Thus, a prima facie case simply means that there is ground for proceeding with the case against the accused person; it is not the same as proof which comes later, when the Court or Tribunal has to find whether the person charged with an offence is guilty or not. PER IGE, J.C.A.
WHETHER OR NOT A TRIAL COURT CAN AT THE STAGE OF CONSIDERATION OF A NO CASE SUBMISSION GO INTO ELABORATE EVALUATION OF THE ORAL AND DOCUMENTARY EVIDENCE GIVEN AND TENDERED BY THE PROSECUTION’S WITNESSES
It must be stated that a trial Court cannot at the stage of consideration of a no case submission go into elaborate evaluation of the oral and documentary evidence given and tendered by the prosecution’s witnesses until he comes to take final decision in a criminal matter such as this one under consideration. The lower Court was not expected at the interlocutory stage of consideration of a no case submission to consider the probative value of Exhibits LL40 – LL40(9) tendered by PW20 or any of the exhibits on the merit at that stage of the proceedings. All that the trial Judge is expected to do is as provided in Sections 302 and 303 of the Administration of Criminal Justice Act 2015 which is to examine the oral and documentary evidence placed before him and determine whether the oral and documentary evidence led by the prosecution actually establish the ingredients of the offences charged and whether any evidence linking the Defendant with the commission of offence or offences for which the Defendant was arraigned has been discredited or destroyed under cross-examination. PER IGE, J.C.A.
THE ESSENTIAL ELEMENT OF THE OFFENCE OF CONSPIRACY
The essential element of conspiracy is the agreement to do an unlawful act, or agreement to do a lawful act by an unlawful means. See Daboh & Anor V. The State (1977) 2 NSCC 309; Okosun V. A.G., Bendel State (1985) 3 NWLR (Pt. 12) 283 at 297; Abacha V. The State (2002) 11 NWLR (Pt. 779) 437 at 523. It is now trite that the proof of conspiracy is generally a matter of inference, deduced from certain criminal acts of the parties concerned, which acts are done in pursuance of an apparent criminal purpose that is in common between the conspirators. See Daboh & Anor v. The State (supra) at 319. PER IGE, J.C.A.
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court, Abuja, Coram: E. O. ABANG, J., delivered on 19th day of July, 2021 in Charge No: FHC/ABJ/CR/293/2015.
The Appellant herein along with eight other defendants, that is, 2nd to 9th Respondent was standing trial on a 37-Count Charge before the trial Court on the offences bordering on Money Laundering, Conversion, Theft and Conspiracy. The appellant was mentioned in seven (7) counts namely counts 17, 18, 19, 20, 21, 22 and 23 of the charge. The Appellant is a Director in the 9th Respondent’s company – Crust Energy Limited, which was also mentioned in the above named seven (7) Counts as well as in counts 24, 25, 26, 27, 28, 29 and 37. The 37 Counts Charge was dated and filed on the 7th July 2015. (See pages 3 – 15 of the Volume 1 of the record of appeal).
The 37-Count Charge was supported by a 9 paragraph Affidavit deposed to by Adekunle Christopher Odofin, List of Witnesses and Proof of Evidence. The defendants pleaded not guilty. The Prosecution called 21 witnesses and tendered various documents in evidence. The Prosecution thereafter, closed their case on 03/11/2019.
The defendant made no case submission along with other defendants. Counsel for the parties filed and exchanged their various written addresses in respect of the no case submission which was subsequently adopted.
In the ruling delivered on the 19th of July, 2021, the trial Court dismissed the Appellant’s no case submission together with the other defendants’ no case submission as lacking in merit and adjourned for the defendants to open their respective defence(s).
Dissatisfied with the decision of the lower Court, the Appellant appealed to this Court vide two notices of appeal, one filed on the 28th day of July, 2021, while the second one was filed on the 2nd day of August, 2021. The Appellant relied on the second notice of appeal which has two grounds in arguing this appeal. The grounds of appeal without their particulars are as follows:
“Ground One:
The learned trial Court erred in law when it dismissed the 3rd Defendant/Appellant’s No Case Submission and thereafter, called upon the 3rd Defendant/Appellant to enter his defence, whereas having regard to the oral and documentary evidence adduced by the prosecution/complainant, no prima facie case was made out by the prosecution to warrant calling upon the 3rd defendant/Appellant to enter any defence to the charges against him (the Appellant) and this has occasioned a miscarriage of justice to the Appellant.
Ground Two:
The learned Court erred in law in placing reliance on Exhibits LL40(1), LL40(1), LL41(2), LL41(3) and LL41(4); statements of Mohammed Iro Ma’aji and Abdulmalik Dalhatu, all of whom are deceased, to come to the decision dismissing the Appellant’s no case submission, whereas the said statements are such that they cannot be relied upon to reach any judicial decision, thus occasioning injustice to the Appellant.”
The Appellant’s Brief of Argument was filed on the 14th September, 2021 while the 1st Respondent’s Brief of Argument was filed on the 13th October, 2021, but deemed properly filed and served on the 14th October, 2021.
The Appellant filed a reply brief on the 20th October, 2021.
The appeal was heard on 21st day of October, 2021, when learned Counsel to the parties adopted their respective Briefs of Arguments.
Learned Counsel to the Appellant, Y.C. MAIKYAU, SAN distilled a sole issue for the determination of this appeal thus:
“Whether having regard to the oral and documentary evidence adduced by the prosecution before the trial Court, the learned trial Judge was right in dismissing the Appellant’s no case submission as lacking in merit and thereafter, called upon the Appellant to enter his defence?” (Grounds 1 and 2).
Learned Counsel to the Respondent OLUWALEKE ATOLAGBE, also distilled a sole issue for the determination of this appeal. The sole issue is:
“Whether the learned trial Judge was not right to holding that a strong prima facie case has been made out against the Appellant to call upon him to enter his defence?”
This appeal will be determined on the sole issue formulated by learned Senior Counsel to the Appellant.
The sole issue: Whether having regard to the oral and documentary evidence adduced by the prosecution before the trial Court, the learned trial Judge was right in dismissing the Appellant’s no case submission as lacking in merit and thereafter, called upon the Appellant to enter his defence?
Learned senior Counsel to the Appellant while arguing the sole issue stated the trial Court in its ruling of 19th July, 2021 did not consider the totality of the case presented by the prosecution in support of the allegations against the Appellant in the charge. He argued that there was only the mention of extra-judicial statements of Mohammed Ma’aji Iro and Abdulmalik Dalhatu (both deceased). Learned Senior Counsel submitted that whether or not the admission of the statements was preceded by an objection, the statements remain legally inadmissible. He cited EKPO V. THE STATE (2001) 7 NWLR (PT. 712) PAGE 292. The learned Silk argued that by the finding by the trial Court of a ‘strong prima facie case’ against the Appellant, was not and cannot be supported by the evidence so adduced by the prosecution. That by coming to that conclusion, the trial Court clearly did not advert its mind to the fundamental issues that hold sway in determining a no case submission. That the yard stick prescribed by this Court and the apex Court did not find any consideration by the trial Court in determining the no case submission. That it is the duty of the trial Judge at that stage of the proceedings, brief as he must be, to consider the totality of the case of the prosecution before arriving at a finding, one way or the other. That there cannot be piecemeal, selective consideration of the prosecution’s case. He stated that the prosecution cannot be said to have established strong prima facie case, when every single allegation it made against the defendants (Appellant and 2nd to 9th Respondents) in the charge was negated by the oral and documentary evidence presented by the prosecution itself. That such a situation will not in law warrant or justify calling upon the Appellant to enter his defence or offer explanation to the case allegedly made out by the prosecution.
On the allegations on Counts 17, 18, 19, 20, 21, 22 and 23 contrary to the provisions of the Money Laundering (Prohibition) Act, 2012, learned Senior Counsel opined that it is imperative to examine the nature of the offence and the elements/ingredients which must be established in order to prove the commission of the offence of Money Laundering. On the definition of Money Laundering and how it can be established he referred this Court to the cases of:
1. ECONOMIC AND FINANCIAL CRIMES COMMISSION V. DR. MARTINS OLUWAFEMI THOMAS (2018) LPELR – CA/L/1298/2017; AND
2. DR. RAYMOND DOKPESI V. FRN & ANOR in APPEAL NO: CA/ABJ/CR/1073/2020.
Learned Silk further argued that it is clear that the prosecution is under a duty to establish a prima facie case of the theft of monies belonging to the Adamawa State Government to justify the allegation of money laundering against the Appellant. He submitted that all through the oral testimonies of PW1 – PW21 and the documentary evidence tendered by the Prosecution during the trial, there is no scintilla of evidence of the theft of Adamawa State funds and no such funds were laundered by the Appellant. That the evidence of PW5 during examination-in-chief leaves no one in doubt that there was no theft of Adamawa State Government’s funds and that from the evidence of PW6, it is abundantly clear that there was no theft of the Adamawa State’s funds. That PW9 did not adduce any evidence on any of the elements of the predicate offence of theft against the Appellant.
Learned senior Counsel to the Appellant maintained that from the testimonies of PW5, PW6, PW9, PW10 and PW15, who were the persons with the responsibility of accounting for the funds of Adamawa State Government there was no theft of the monies of the state. That there was also no evidence of the alleged Money Laundering and/or alleged concealment of the origin of any money, by the Appellant. Instead that the evidence revealed that the funds that were allegedly stolen and laundered were in fact utilized by the state. That none of the elements of the offence of theft was established by the prosecution through these witnesses. That it was not shown that the Appellant either alone or with any or all the defendants took the monies of Adamawa State Government without its consent whilst the monies were in the possession of the state. That these officers who had custody of the money belonging to Adamawa State Government exonerated all the defendants from all the allegations in the Charge.
On counts 24, 25, 26, 27, 28, 29 and 37 relating to allegations under Section 1(1) of the Advance Fee Fraud and Other Fraud related Offences Act, 2006, it the submission of learned silk that the prosecution did not lead any evidence to show the existence of any of the elements of the offences contrary to Section 1(1) of the Advance Fee Fraud and Other Related Offences Act 2006 to warrant calling on the Appellant to enter into his defence. Rather, that what the prosecution succeeded in demonstrating before the Court is the fact that all the ‘monies released for the maintenance of peace and security in Adamawa State’, were indeed utilized by the State for that purpose and successfully so. That there is no iota of evidence that the Appellant/3rd defendant either alone or with other defendants made any representation to any official of the Adamawa State Government, let alone false representation in order to obtain the monies allegedly released for the maintenance of peace and security in Adamawa State or at all. That there was no inducement by the Appellant/ 3rd defendant, either alone or with the other defendants to cause Adamawa State Government to part with or deliver to him any money either meant for the maintenance of peace and security of the State, or for any purpose at all. He opined that it was apparent from the ruling of the trial Court – the subject matter of this appeal that Exhibits LL40(1) to LL40(9), LL41(1) LL41(2), LL41(3) and LL41(4) – statements of both Mohammed Iro Ma’aji and Abdulmalik Dalhatu (both now deceased), were countenanced by the trial Court in dismissing the no case submission. That the trial Court was wrong in law as the said statements are legally inadmissible.
He cited:
1. OPARA V. A.G. FEDERATION (2017) 9 NWLR (PT. 1569) PAGE 61.
2. KASA V. STATE (1994) 5 NWLR (PT. 344), PG. 269; and
3. EKPO V. STATE (2001) 7 NWLR (PT. 712) PAGE 292.
He submitted that other than the evidence of PW20 that he took those statements in the course of his investigation, the evidence of PW20 as to what Mohammed Ma’aji Iro and Abdulmalik Dalhatu did, as narrated in their Statement are inadmissible and manifestly unreliable that no Court or Tribunal can rely on the statements for any judicial determination. He canvassed that PW1 to PW18, were all bank officials who did not give any evidence of theft or money laundering against the defendants, that is Appellant, 2nd to 9th Respondents. Similarly, that PW19 an officer in the Accountant General’s Office Adamawa State did not give any evidence against the defendants on the allegations in the above named counts.
In conclusion, learned senior Counsel submitted that in the absence of any evidence establishing any of the elements of the offence of theft, being the predicate offence to the money laundering allegations against the Appellant and other defendants, the prosecution failed to make a prima facie case against the Appellant/ 3rd defendant as to warrant calling upon him to enter his defence. He urged the Court to allow the appeal and discharge the Appellant/3rd Defendant of the alleged offences in counts 17, 18, 19, 20, 21, 22 and 23 of the Charge.
Reacting to the sole issue, learned Counsel OLUWALEKE ATOLAGBE who settled the brief for the Respondent placed reliance on the cases of:
1. METUH V. FRN (2017) 4 NWLR (PT. 1554) 108 AT 131 – 132;
2. NYAME V. FRN (2010) 7 NWLR (PT. 1193) 344 AT 391 AND 420 – 421;
3. OLANIYAN V. STATE (1987) 1 NWLR (PT. 48) 156;
4. STATE V. EMEDO (2001) 12 NWLR (PT. 726) 131;
5. EKWENUGO V. FRN (2008) 15 NWLR (PT. 1111) AAT 63B – 639 to canvass that the Appellant would only succeed in a No Case Submission and would only be justified in bringing the application if the lower Court or this Court found that:
1. The essential element of the offence has not been proved.
2. That there is no legally admissible evidence at all against him linking him in any way with the commission of the offences alleged against him.
3. That the evidence led against Defendant/applicant on the offences charged has been so discredited that this Honourable Court cannot rely on it to establish his criminal guilt.
He stated that at the stage of No Case Submission the Court is not to decide the guilt of the defendant. He cited DABOH V. STATE (supra). Learned Counsel opined that a close look at the Appellant’s brief will reveal that his arguments are beyond what is expected in a No Case Submission. That the Appellant completely ignored the cold facts adduced by the Prosecution which effectively met all the ingredients of the offences charged. Counsel reproduced the offences against the Appellant together with the 2nd – 9th Respondents were charged as contained at pages 1- 17 of the record of appeal, and argued that the prosecution called 21 witnesses to prove its case against the Appellant and other defendants and that the case of the prosecution is quite straight forward and supported by evidence and the confessional statements made by the defendants. He submitted that from all the evidence gathered, the testimony of PW5 could not be shaken during cross-examination and that he made it clear that all the cheques that were given to ‘Ma’aji Iro’ were part of the Exhibit AC series and were not utilized for operation Tsaro. He stated that the money for operation Tsaro and the money released to Ma’aji Iro as per Exhibit AC series are different. Also, that the PW10 was not shaken under cross-examination and he emphasized that it was the Appellant that makes approval. He reproduced the evidence of PW6, the Accountant cashier with the Special Services Department, Government House Adamawa, who gave evidence from pages 1279 – 1299 of the record of appeal and stated that the department has two accounts upon which she usually prepares vouchers as the approval memos from permanent secretaries. Counsel for the 1st Respondent maintained that all the evidence of the witnesses supported the case of the prosecution and that flowing from the said witnesses, who were ad idem, that there was a directive that various cheques issued by the two departments in the secretary to the State Government Office running into several billions be handed over to Mohammed Ma’aji Iro and that instruction was given by the 2nd Respondent as the Governor of Adamawa State. That he gave the instructions to his subordinates. That the 2nd Respondent himself confirmed receiving various cash payments from the proceeds of cheques into his own personal account as shown in Exhibit K10 – K20. Learned Counsel stated that the Appellant in his Brief of Argument filed on 14th September, 2021 failed to show that the Prosecution did not prove the essential elements of the offences charged neither has he shown that no legally admissible evidence linked him in any way with the commission of the offences alleged. Moreso, that the Appellant has not also demonstrated that he has successfully discredited the Prosecution’s witnesses so as to warrant the setting aside of the ruling of the lower Court. He submitted that the Appellant failed to address the essential facts that will persuade this Court to overturn the ruling of the No Case Submission made by the lower Court.
On the non-consideration to the issues and submission on the essential elements of the offences charged, and contrary to the Appellant’s argument that the lower Court did not consider the essential elements of the offences charged. Learned Counsel to the Respondent stated that such argument is far from the truth. He argued that the trial Court is not obliged to give a comprehensive ruling on a No Case Submission and itemize all the facts that support the ingredients of each offence as if it is writing a final judgment. He cited:
1. UZOAGBA V. COP (2014) 5 NWLR (PT. 1401) 441 AT 465;
2. ADAMA V. STATE (2017) LPELR – 42266 (SC) PAGE 45 – 47, PARAS D- B.
Counsel stated it is the requirement of the law that where a Judge is giving a Ruling on an application for No Case Submission, the learned trial Judge should be very brief so that he would not be said to have prejudiced his mind or biased.
On the alleged failure to prove the predicate offence of theft as contended by learned senior Counsel to the Appellant, learned Counsel to the Respondent argued that it is clearly stated that the thieves are the defendants, particularly the 2nd Respondent and their collaborator. Counsel opined that the scheme of theft was amply demonstrated by the testimonies of PW5, PW6, PW9, PW10, PW15 and PW20, who among others stated that the 2nd Respondent as the Governor of the State directed his subordinates particularly PW21 to raise memos in the name of security and other exigency payments in the state. That the 2nd Respondent signed all the memos and after processing the memos by the aforesaid witnesses the cheques were issued on the accounts of SSG and SSD. That the 2nd Respondent admitted that he received cash from the same Mohammed Maaji Iro from the money withdrawn from the SSD and SSG accounts. Also, that the Appellant received over N300 Million in cash vide his personal account with Zenith Bank in which Maaji Iro deposited monies.
On the alleged lack of evidence to establish fraudulent taking or conversions, learned Counsel to the Respondent stated the evidence of fraud which the Appellant completely closed his eyes to, were adduced by the government officials called by the Prosecution as PW5, PW6, PW9, PW10 and PW21 as well as PW20 who gave unchallenged evidence on the funds withdrawn from SSG and SSD accounts of the State Government. He further argued that the various confessional statements by the defendants also pointed to the fraudulent taking as well as fraudulent conversion. He maintained that all the ingredients of the offences of theft or stealing as stated in AYENI V. THE STATE (2016) 12 NWLR (PT. 1525) 51, are met by the evidence adduced by the prosecution. That all the elements of the offence of theft are present in this case contrary to the submission of the Appellant.
On the alleged lack of evidence to prove certain counts, learned Counsel to the 1st Respondent stated that counts 17, 18 and 19 of the charge relate to investment in Sentinel Exploration Production Limited. That the counts relate to the investment made by the Appellant, Zulkifil Abba through his company, Crust Energy and Tower Asset Management Limited. He referred to the testimony of PW20 which he said corroborated by Zulkifik Abba himself, (i.e. 3rd Defendant/Appellant) the receiver of the funds and one of the Special Adviser of the 2nd Respondent as the Governor. That the transactions referred to by the 3rd defendant/Appellant in the statement are all supported by Exhibits N1 – N37.
On counts 20 and 21 of the charge, learned Counsel to the Respondent relied on the testimonies of PW5, PW6, PW9 and PW10 which show that the aforementioned cheques, vouchers and memos were handed over to Ma’aji Iro who cashed the money without returning the money to the officials of the State Government. That all the Defendants including the Appellant in counts 20 and 21 have done one thing or the other in collaborating with each other in ensuring that the cheques were collected by Ma’aji Iro who in turn disbursed the funds into various accounts including the accounts of the 5th – 9th Defendants. He stated that all the funds referred to in the charge were proceeds of unlawful activities, theft and criminal breach of trust on the part of the Appellant. That the Appellant cannot be right when he argued that there was no evidence to support the charge.
On counts 22 and 23 learned Counsel relied on the testimonies of PW5, PW6, PW9 and PW10 which he said show that the aforementioned cheques, vouchers and memos were handed over to Ma’aji Iro who cashed the money without returning the money to the officials of the State Government. He also referred to the testimony of PW21 who receive instruction from the 2nd Respondent. That the defendants including the Appellant knew or reasonably ought to know that the funds are proceeds of unlawful activities, theft or criminal breach of trust. That the lower Court was right in holding that there is a prima facie case against the Appellant. On the Appellant’s submission on the admissibility of the statements of Ma’aji Iro and Abdulmalik Dalhatu, learned Counsel for the 1st Respondent submitted that such can never be an avenue to argue against the admissibility of the said statement. That there must first be an appeal against the admissibility of the said statements. That there was never any appeal against the ruling on admissibility and therefore, admissibility of the statements of Ma’aji Iro. Therefore, that any argument against the admissibility of the said statement should be discountenanced. He cited YUSUF & ANOR V. STATE (2019) LPELR – 46945 (SC).
The learned Counsel in conclusion submitted that the only issue before the Court is whether a case has been made out. That it is not for the Court to give attention to irrelevant consideration that are not relevant to the case. He maintained that there is no substantive prayer for the proceedings to be quashed on the premises of other grounds alleged by the Appellant in his address. He urged the Court to discountenance the argument of the Appellant as stated in his submissions.
Learned senior Counsel to the Appellant in his reply brief submitted that under the doctrine of the stare decisis or judicial precedence, cases are authorities for what they decide. That each case must be determined on the basis of its peculiar facts and circumstances. He cited THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) V. SAMUEL DAVID EKE-SPIFF & 3 ORS (2009) LPELR – 3152 (SC). He stated that the case of DABOH V. STATE (supra) and other decision cited under paragraph 4.02 of the 1st Respondent’s brief of argument, are inapplicable to the facts and circumstances of the instant appeal.
Learned senior Counsel to the Appellant disagreed with the submissions of the 1st Respondent at paragraph 4.19 and submitted that the matters stated therein do not relate to the Appellant. He also made reference to paragraphs 4.21 and 4.22 on page 14 of the 1st Respondent’s brief and stated that there was no account anywhere of the Appellant directing Mohammed Ma’aji Iro to credit any account.
With regard to 1st Respondent’s reference to Exhibits LL40 to LL41(2), LL41(3), LL41(4), learned senior Counsel to the Appellant referred the Court to Section 8(1) of the Evidence Act 2011 and submitted that these pieces of documents cannot be a basis of any judicial determination. On the 1st Respondent’s arguments, to the effect that Notice of Appeal did not challenge the admissibility of the statement of Ma’aji Iro and Abdulmalik Dalhatu, that it is obvious from the ruling of the trial Court particularly on page 1839 to 1840 of volume 3 of the record of appeal that the trial Judge did rely on the statements of Ma’aji Iro and Abdulmalik Dalhatu – Exhibits LL40 to LL40(9), LL41(1), LL41(2), LL41(3) and LL41(4) in determining the no case submission. He urged the Court to so hold.
RESOLUTION OF THE ISSUE
Now in accordance with the provision of Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty of the offence or offences for which he is arraigned before a competent Court of law or Tribunal. Similar provisions are contained in Section 135(1) (2) and (3) of the Evidence Act 2011 Cap. E14 LFN which provide:-
“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt the burden of proving reasonable doubt is shifted on to the defendant.”
It is thus beyond argument that the cumulative effect of the above provisions of the Constitution and the Evidence Act is that the burden and standard of proof in any criminal proceedings are squarely on the prosecution. It also means that until a Defendant is prima facie proved guilty he would not be called upon to put up a defence to any alleged criminal offence or offences against him. See<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
1. O. OSUAGWU VS THE STATE (2016) 16 NWLR (PART 1537) 31 AT 67 C- H per NWEZE, JSC who said:-…
2. UCHE ORISA V THE STATE (2018) 11 NWLR (PART 1631) 453 AT 466 C- D per GALINJE, JSC who said:-
“The law is settled that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See Akpan v. The State (1990) 7 NWLR (Pt. 160) 101; Adamu v. A.- G. Bendel State (1986) 2 NWLR (Pt. 22) 284. Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 provides that every person who is charged with criminal offence shall be presumed innocent until he is proved guilty. It is therefore plain that the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v. The State (1993) 7 NWLR (Pt 307) 511 at 531 paras A-C; Solola v. The State (2005) 5 SC (Pt. 1) 135; (2005) 11 NWLR (Pt. 937) 460; Bakare v. The State (1987) 1 NWLR (Pt.52) 579.”
3. CIMAR v. MUSTAPHA USMAN (2018) 15 NWLR (PART 1642) 320 AT 336 B – C where GALINJE, JSC said:-
“The law is settled that if the commission of a crime by a party, to any proceedings is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See Section 135 (1) and (2) of the Evidence Act, 2011, see Adamu v. A.-G. of Bendel State (1986) 2 NWLR (Pt. 22) 284, Akpan v. The State (1990) 7 NWLR (Pt. 160) 101, Sunday Amala v. The State (2004) 6 SCNJ 79 at 88, (2004) 12 NWLR (Pt. 888) 520; The State v. Olatunji (2003) 2 SCNJ 65, (2003) 14 NWLR (Pt. 839) 138. Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. Flowing from the provision of Section 36 (5) of the Constitution, the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt, and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 at 531, paras. A – C; Solola v. The State (2005) 5 SC (Pt. 1) 135, (2005) 11 NWLR (Pt. 937) 460.”
4. WAHEED BALOGUN V THE STATE (2018) 13 NWLR (PART 1636) 321 AT 328 F – G per GALINJE, JSC;
5. ALBAN AJAEGBO V THE STATE (2018) 11 NWLR (PART 1631) 484 AT 503 G – H per KEKERE-EKUN, JSC.
Therefore a Defendant who conceives that at the end of the prosecution’s case, the prosecution has not proved the essential ingredients of the offences or offence for which he was charged have not been established or that whatever evidence there is, linking him with the commission of the offence charged has been totally discredited under cross-examination thus making the pieces of evidence against him manifestly unreliable, is perfectly entitled to make a no case submission that a case has not been sufficiently made out against him requiring him to make a defence pursuant to Section 302 and 303 of the Administration of Criminal Justice Act, 2015. The Defendant can be discharged by the trial Court under Section 357 of the same ACJA if the no case submission is upheld.
Conversely where at the close of the evidence called by the prosecution in support of the charge, there is a prima facie case made out against the Defendant vide oral and documentary evidence the no case submission would fail.
The contention of the Appellant is that no prima facie case has been made against him by the oral and documentary evidence called and proffered by the prosecution. The expression “prima facie case” have received judicial pronouncements and consideration over the years. I call in aid the case of AJIDAGBA VS. INSPECTOR-GENERAL OF POLICE (1958) NSCC 20 AT 21 -22 per ABBOTT F. J. who said:
“We have been at some pains to find a definition of the term “Prima Facie Case. ” The term, so far as we can find has not been defined either in the English or in the Nigeria Court.”
In an India case however, SHER SINGH VS. JITENDRANA THESEN (1931) I.L.R 50 CAL C. 275, we find the following dicta:
“What is meant by a prima facie case? It only means that there is a ground for proceeding… But a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is guilty or not guilty… The evidence discloses a Prima Facie Case when it is such that if uncontradicted and it believed it will be sufficient to prove the case against the accused per Lort- Williams J.”
The position has been reiterated and reemphasized by the apex in the land in numerous cases. See:
1. IKUFORIJI V. FRN (2018) 6 NWLR (PT. 1614) 142 AT 159 G- H TO 160 A – per EKO, JSC who said:
“Prima facie means “first appearance”. The phrase, when it is applied to the rule on onus of proof in the law of evidence, means that the case is supported by such evidence, as are available, on every material issue of the offences charged that, if no rebuttal evidence is called; it is sufficient to establish the fact in issue. Thus, as it was stated in Police v. Ajidagba 3 FSC 5, reported as Ajidagba v. I.G.P. (1956) SCNLR 60; evidence discloses a prima facie case when the evidence is such that if, uncontradicted, and it is accepted, will be sufficient to prove the case against the accused person. Therefore, if at the close of the prosecution’s case, the evidence so far marshaled against the accused is such that if it could be presumed to be true in relation to the fact in issue, unless rebutted or disproved by some other evidence to the contrary, then, a prima facie case has been disclosed to warrant calling on the accused to offer his exculpatory defence. See Onagoruwa v. The State (1993) 7 NWLR (Pt. 303) 49 at 81 – 82; Tongo v. COP (2007) 30 NSCOR 180 at 192 – 193; (2007) 12 NWLR (Pt. 10 49) 525.”
2. CHYFRANK NIGERIA VS FRN (2019) 6 NWLR (PART 1667) 143 at 159 C -D per AUGIE, JSC who said:
“The question that comes up where a no case submission is made by an accused person is whether the prosecution made out a prima facie case requiring, at least, some explanation from an accused. See Tongo v COP (2007) 12 NWLR (Pt. 1049) 525 SC. Thus, a prima facie case simply means that there is ground for proceeding with the case against the accused person; it is not the same as proof which comes later, when the Court or Tribunal has to find whether the person charged with an offence is guilty or not.
So, 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 person. See Abacha v. State (2002) 11 NWLR (Pt.779) 437 SC and Ajidagba v. I.G.P. (1958) SCNLR 60. (underlined mine)
3. FRANK AMAH V. FRN (2019) 6 NWLR (PART 1667) 160 AT 201 H to 202 A -g per EKO JSC who said:
“My Lords, once the prosecution, from the totality of the evidence led against the accused person is able to make a case warranting the accused person to make some explanations or refute the evidence against him a prima facie case is said to have been made against him. That is why Galadima, JSC, in Orji Uzor Kalu v. F.R.N. (2016) LPELR- 40108 (SC); (2016) 9 NWLR (Pt. 1516) 1, states that prima facie means the establishment of a legally required rebuttable presumption. I am satisfied that, on the totality of the evidence, the Respondent adduced against the Appellant a prima facie case had been made out against him to warrant his being called upon to offer a defence. The evidence established a good ground for the case to proceed or for the proceedings against the Appellant to continue. See Ajidagba v. I.G.P (1958) SCNLR 50; Ubanatu v. The Commissioner of Police (2000) FWLR (Pt. 1) 138 at 1 SC – 152; (2000) 2 NWLR (Pt. 643) 115; Ikomi v. The State (1986) 3 NWLR (Pt. 28) 340.” (underlined mine).
Specifically, the Appellant accused the learned trial Judge of failing to consider the totality of the case presented by the prosecution in support of the allegations against the Appellant. According to the Appellant, there was only the mention of extra-judicial statements of Mohammed Ma’aji Iro and Abdulmalik Dalhatu (both deceased).
That no other reference was made by the trial Court to any specific part of the prosecution’s case that justified the decision of the trial Judge to dismiss the NO CASE SUBMISSION. To the Appellant whether or not the admission of the statements of the said deceased persons were preceded by objection or not the statements, according to the Appellant remain legally inadmissible. The Appellant is also of the view that evidence of PW20 (ODOFIN ADEKUNLE CHRIS) EFCC Investigation Officer is hearsay.
It must be stated that a trial Court cannot at the stage of consideration of a no case submission go into elaborate evaluation of the oral and documentary evidence given and tendered by the prosecution’s witnesses until he comes to take final decision in a criminal matter such as this one under consideration. The lower Court was not expected at the interlocutory stage of consideration of a no case submission to consider the probative value of Exhibits LL40 – LL40(9) tendered by PW20 or any of the exhibits on the merit at that stage of the proceedings. All that the trial Judge is expected to do is as provided in Sections 302 and 303 of the Administration of Criminal Justice Act 2015 which is to examine the oral and documentary evidence placed before him and determine whether the oral and documentary evidence led by the prosecution actually establish the ingredients of the offences charged and whether any evidence linking the Defendant with the commission of offence or offences for which the Defendant was arraigned has been discredited or destroyed under cross-examination.
The learned trial Judge in this case duly followed all the procedures laid down by the statute and decided cases in his consideration of the no case submission made on behalf of the Appellant. The learned trial Judge placed reliance on the examination and consideration of the oral and documentary evidence given and tendered by the twenty-one (21) prosecutions’ witnesses and the learned trial Judge justly found that the Appellant has case to answer on Counts contained in the Charge against him (the Appellant), having regard to evidence. The conclusion or decision of the trial Judge is amply supported by the evidence of Prosecution witnesses and all the exhibits tendered by the Prosecution.
I am of the firm view that upon a calm reading of the oral evidence of the said witnesses coupled with the documentary evidence placed before the learned trial Judge the Prosecution (1st Respondent) sufficiently linked the Appellant with the commission of the offenses contained in all the Counts contained in the charge against the Appellant to warrant or justify his being called upon to enter upon his defence. The evidence is such that a reasonable Court or Tribunal can convict an accused or a Defendant on the said piece of evidence if they remain uncontradicted or unexplained. See
1. HON ADEYEMI IKUFORIJI V. FRN (2018) 6 NWLR (PART 1614) 142 at 159 E 160 A – F per EKO, JSC who said:
“The various documents tendered, as well as the evidence of the PW1 and PW2, were all produced for one purpose. That is, to establish prima facie that the Appellant has a case to answer in respect of the allegations that he violated the provisions of Sections 1, respectively, of MLPA 2004 and MLPA, 2011. I have read the Appellant’s brief of argument, and his reply brief. I have not been able to see where the Appellant could claim that the evidence of the prosecution had been so badly discredited by their cross-examination to the extent that no reasonable Tribunal could act on them. This is one of the reasons trial Courts harp on to uphold no case submissions. See Ibeziako v. C.O.P. (supra).
The Appellant, apart from the allegation that he received cash payments in excess of the prescribed statutory threshold, is also being prosecuted for conspiracy to commit the crime under Sections I respectively of MLPA 2004 and MLPS, 2011. The essential element of conspiracy is the agreement to do an unlawful act, or agreement to do a lawful act by an unlawful means. See Daboh & Anor v. The State (1977) 2 NSCC 309; Okosun v. A.G., Bendel State (1985) 3 NWLR (Pt. 12) 283 at 297; Abacha v. The State (2002) 11 NWLR (Pt. 779) 437 at 523. It is now trite that the proof of conspiracy is generally a matter of inference, deduced from certain criminal acts of the parties concerned, which acts are done in pursuance of an apparent criminal purpose that is in common between the conspirators. See Daboh & Anor v. The State (supra) at 319.
My Lords, I have been able to set out the elements of the substantive offences under MLPA, 2004 and MLPA, 2011, and the criminal conspiracy that the Respondent, as the prosecutor, is required to establish in order that a prima facie case would be said to have been established. Prima facie means “first appearance”. The phrase, when it is applied to the rule on onus of proof in the law of evidence, means that the case is supported by such evidence, as are available on every material issue of the offences charged that, if no rebuttal evidence is called; it is sufficient to establish the fact in issue. Thus, as it was stated in Police v. Ajidagba 3 FSC 5, reported as Ajidagba v. I.G.P. (1956) SCNLR 60, evidence discloses a prima facie case when the evidence is such that if, uncontradicted and it is accepted, will be sufficient to prove the case against the accused person. Therefore, if at the close of the prosecution’s case the evidence so far marshalled against the accused is such that if it could be presumed to be true in relation to the fact in issue, unless rebutted or disproved by some other evidence to the contrary, then, a prima facie case has been disclosed to warrant calling on the accused to offer his exculpatory defence. See Onagoruwa v. The State (1993) 7 NWLR (Pt. 303) 49 at 81 – 82; Tongo v. COP (2007) 30 NSCQR 180 at 192 – 193; (2007) 12 NWLR (Pt. 1049) 525.
Putting it rather negatively on the authority of Fagoriola v. FRN (2013) 17 NWLR (Pt. 1383) 322, the Appellant’s counsel submits that a no case submission connotes that there is no evidence on which the Court will convict even if the trial Court believes the evidence adduced by the prosecution. The submission is correct in law. Juxtaposing the facts disclosed by the evidence of the PW1 and PW2, and the documentary evidence vis-a-vis the charges the Appellant is defending at the trial Court, I am of the firm view that a prima facie case has been disclosed by the prosecution’s evidence at the trial Court to warrant the Appellant being called upon to offer his defence. I bear in mind that at the stage of a no case submission, the Court is not called upon to express any opinion on the evidence before it, as to their probative value. All that the Court is called upon to rule on at this stage, is simply whether there exist legally admissible evidence linking the accused person with the commission of the alleged offence(s) and if the no case submission is on the basis of some discredited evidence such discredited evidence must be on the face of the printed record and in respect of relevant and material facts. See Daboh & Ors v. The State (supra) at 315. As I earlier pointed out in the instant case, the no case submission was made largely on the basis of there being no legally admissible evidence linking the Appellant with the commission of the alleged criminal offences.”
2. FRANK AMAH VS. FRN (2019) 5 SCM 76 at 107 H TO 108 A per KEKERE – EKUN JSC who said:
“All that the Court is required to do when a no case submission is made is to determine whether the evidence adduced by the prosecution is sufficient to warrant an explanation from the accused person. The Court below carefully examined the evidence on record and rightly, in my view, concluded that a prima facie case has been made out in respect of counts 5 and 6 of the information sufficient to warrant the Appellant bent called upon to make his defence thereto.”
On page 118 H – to 119 A, my Lord EKO, JSC said:
“My Lords, once the prosecution, from the totality of the evidence led against the accused person is able to make a case warranting the accused person to make some explanations or refute the evidence against him a prima facie case is said to have been made against him. That is why Galadima, JSC, in Orji Uzor Kalu v. FRN (2016) LPELR – 40108 (SC), states that prima facie means the establishment of a legally required rebuttable presumption, I am satisfied that, on the totality of the evidence, the Respondent adduced against the Appellant, a prima facie case had been made out against him to warrant his being called upon to offer a defence. The evidence established a good ground for the case to proceed or for the proceedings against the Appellant to continue. See Ajidagba v. Cop (1958) SCLR 50; Ubanatu v. The Comm. of Police (2000) FWLR (Pt. 1) 138 at 150 – 152; Ikomi v. The State (1986) 3 NWLR (Pt. 28) 314 accordingly, I also resolve issue 2 against the Appellant.”
The lone issue distilled for determination of this appeal is hereby resolved against the Appellant. The Appellant’s appeal lacks merit and it is hereby dismissed in its entirety.
The ruling of the Federal High Court of Nigeria, Abuja Division in Charge No. FHC/ABJ/CR/293/15 delivered by HON. JUSTICE E. O. ABANG on 19th July, 2021 overruling the NO CASE SUBMISSOIN of the APPELLANT and calling on him to enter upon his defence IS HEREBY AFFIRMED.
DANLAMI ZAMA SENCHI, J.C.A.: I was in the conference of panel of Justices that heard this appeal and I had the privilege of reading in draft the leading judgment of my learned brother, PETER OLABISI IGE, JCA just delivered, and the leading Judgment substantially captured all the issues I raised during the conference and I therefore agree with the findings and conclusions reached therein that this appeal lacks merit and it is accordingly dismissed by me as well.
Now essentially, this appeal borders on the ruling of the lower Court delivered on the 19th day of July, 2021 pursuant to a “No Case Submission” made by the Appellant at the lower Court. The ruling of the lower Court can be found at pages 2149 – 2151 of the Record of Appeal.
The Administration of Criminal Justice Act, 2015 made provisions at Sections 302 and 303 upon which a No Case Submission can be made. However, there are certain basic guiding principles that a lower Court should have at the back of its mind when ruling on a no case submission made by a Defendant.
Firstly, in every case where a no case submission is made, the main issue is whether the Prosecution has established a prima facie case against the Defendant. This is the issue which the trial Court is called upon to consider in a no case submission. See CHRISTOPHER O. IGWE V. THE STATE (2021) LPELR- 55336 (SC) and IKOMI V. THE STATE (1986)3 NWLR (PT. 28) 340.
Secondly, it is necessary for the trial Court in a no case submission to answer to note that at this stage, it is only the Prosecution’s evidence in support of its case that has been presented, before the opening of the case of the Defence, which is made at an interlocutory stage and thus, the trial Court would not be in a proper position to determine the substantive issue of the guilt of the Defendant. See COP V. UDOSEN & ANOR (2015) LPELR-40602 (CA).
Thirdly, in a no case to answer submission, the trial Court is expected to consider the evidence adduced by the Prosecution and the ingredients of the offence(s) charged to determine whether a prima facie case has been established against the Defendant and it is the same evidence and ingredients which the Court is expected to consider (along with the defence, if any) at the end of the trial to determine whether the offence charged has been proved beyond reasonable doubt against the Defendant. There is therefore a real likelihood that if care is not taken, pronouncements will be made and conclusions reached by the Court on the evidence adduced by the Prosecution which would have the effect of predetermining substantive issues at the interlocutory stage of ruling on a no case submission. Thus, where the ruling on a no case submission would not put an end to a criminal trial, it is advisable that the Court should not say too much or comment on the evidence so far led before it, so as not to make pronouncements and conclusions that would prejudice the issues in the substantive trial. This position has been strongly supported by this Court and the Supreme Court in a plethora of decided cases. The Supreme Court Per Ademola JSC (as he then was) held as follows in the case of BELLO V. STATE (1966) LPELR-25291 (SC):
“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 discretion. On the ruling made by the learned Judge in this case, we can appreciate his manifold difficulties later in discharging Lasekan, the 2nd accused. It is wiser to be brief and make no observations on the facts. See R V. EKANEM, 13 WACA 108 AT 109.”
Also, this Court held in the case of FRN V. BULAMA & ORS (2021) LPELR-53226 as follows:
“When a no case submission is made by the defence after the prosecution has closed its case, all that is required of the trial Court is to state whether or not the prosecution has made out a prima facie case requiring an explanation from the accused person(s). At the stage of ruling on the no case submission, the trial Court is not expected to formally evaluate the evidence, ascribe probative value thereto and make specific findings of fact to determine if the evidence is sufficient to justify a conviction. It must be understood that the purport of a no case submission is that the Court is not called upon at that stage to express any opinion on the evidence before it. At that stage, the credibility of the prosecution witnesses shall not be considered as the defence is yet to present its witnesses. Where the trial Court dismisses a no case submission, its ruling should be brief so that the merits of substantive case will not be jeopardized and or prejudiced.”
See AJIBOYE V. STATE (1995) LPELR-300 (SC); AITUMA V. STATE (2007) 5 NWLR (PT. 1028) PAGE 466 and ADAMA V. STATE (2017) LPELR-42266 (SC).
It must however be noted that the fact that a ruling on a no case submission is of inordinate length may not by itself be enough ground to reverse the decision on appeal but where the Court has made comments and conclusions on the evidence which fetters its discretion in the substantive matter, such decision or ruling will be set aside on appeal. It is therefore altogether safer to avoid a ruling of inordinate length under any circumstance. See FAGORIOLA V. FRN (2010) LPELR-4139 (CA).
It is trite also that even in this Court, such caution must be exercised in writing lengthy rulings on a no case submission to avoid pronouncement on substantive issues bordering on proof beyond reasonable doubt as would render the trial Court prejudicial to continue with the trial, should its finding be overturned on appeal and the case is remitted to the trial Court. See HARDROCK CONSTRUCTION ENGINEERING CO. & ANOR V. STATE OF LAGOS & ORS (2018) LPELR-46538 (CA).
In the instant appeal, the lower Court at page 2151 of the Record of Appeal held as follows:
“It is my humble but firm view that the Prosecution in the evidence of 21 witnesses both oral and documentary have established a strong prima facie case against the Defendants and they are required to enter their defence immediately.”
Thus, the lower Court, after a painstaking evaluation of the witnesses’ testimonies and the documentary evidence, came to the conclusion that the Prosecution has established a prima facie case against the Appellant that requires the Appellant to enter his defence and offer some explanations. The finding of the lower Court on the no case submission cannot be faulted and it is on firm pedestal with the principles of interlocutory decisions.
Thus, this appeal, as I said earlier, lacks merit and it is accordingly dismissed by me as well. The judgment of the lower Court is hereby affirmed and the case hereby remitted back to the lower Court for continuation of the Appellant’s trial.
BATURE ISAH GAFAI, J.C.A.: I have before now read the draft judgment just delivered by my learned brother Ige, JCA. I too agreed. I too dismiss their appeal.
Appearances:
Y. C. MAIKYAU, SAN, with him, T. A. RAPU and F D. ZAMA For Appellant(s)
ROTIMI JACOBS, SAN, with him, O. A. AFOLAGBE and H. I. ADEBIYI – for 1st Respondent
E. H. ANDREW, SAN, with him, UCHENNA EDE and ULOKO ITODO – for 2nd and 6th Respondents
CHIKA ODOEMENA, with him, ELVIS UHULU – for 3rd Respondent
ETEYA OGANA, with him, Y. M. MA’AJI – for 4th and 8th Respondents
OLUMIDE OLUJIMI, with him, BECKY IFEOMA DUKE – for 5th Respondents
EDIDIONG USUNGUMA, with him, GERTHUDE UJAR – for 7th Respondent
O. A. DADA, with him, A. S. GOBIR – for 9th Respondent For Respondent(s)