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ACHOR v. STATE (2022)

ACHOR v. STATE

(2022)LCN/15983(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Tuesday, March 08, 2022

CA/C/419C/2018

Before Our Lordships

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

CHARLES C. ACHOR APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON A SUBMISSION OF NO CASE TO ANSWER

A submission of no case to answer may be properly made and upheld in the following circumstances:-
(a) When there has been no evidence to prove an essential element in the alleged offence, or
(b) Even when evidence has been adduced on the essential elements, the evidence has been so discredited as a result of cross-examination or is manifestly unreliable that no reasonable tribunal could safely on it.
See UBANATU V. C.O.P (2000)2 NWLR (prt. 643) 115 at 141.

It is instructive to note that where a Judge overrules a no case submission, he must be satisfied that a prima facie case is made out against the accused. 

Furthermore, the evidence establishing a prima facie case is not such as would justify a conviction. It only means that evidence has covered the essential elements of the alleged offence and if it remains uncontradicted and is not thoroughly discredited in cross-examination, a reasonable Tribunal may justifiably convict on it, and therefore, some explanation is required from the accused person. See ABOGEDE V. STATE (1996) 5 NWLR (prt. 448) 270. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): In this appeal, the appellant and eight others were arraigned before the High Court of Akwa Ibom State, sitting in Uyo on 207 counts amended charge of conspiracy to defraud, stealing and falsification of account book. Following their plea of not guilty, the matter proceeded to trial. The prosecution called two witnesses and tendered several exhibits. At the close of the prosecution’s case, the appellant like others made a no case submission. On 23rd May, 2017, the trial Court overruled the no case submission and ordered the appellant to enter his defence.

Dissatisfied with the trial Court’s decision, appellant appealed to this Court upon the grant of leave to do so by the trial Court. His initial grounds of appeal which occupies pages 900-905 of the record contains six (6) grounds of appeal. By leave of this Court, appellant amended his ground of appeal on 11/3/2021 and the said amended grounds of appeal contains only three grounds of appeal.

The facts giving rise to this appeal are summarized as below:-
​The complainant Sundubros Investment Limited was a customer and super key distributor of the appellant’s brewed products. As a distributor, the complainant only received supplies after payment for such supplies through customer order and deposits in form of cheque, bank draft or any other method approved by the company.

Upon reasonable suspicion that the company in connection with some of its employees had fraudulently dealt with the complainant, leading to huge financial loss and collapse of the complainant’s business. The complainant caused a petition to be written and consequent of which the police carried out a detailed investigation on the complainant’s business records with the company.

On the conclusion of the said investigation, it was discovered that a large scale fraud running into several millions of naira had been committed against the complainant and hence the appellant and his cohorts were arraigned before the trial Court.

​When this appeal came up for hearing on 11th January, 2022, Joe Agi, SAN, learned counsel for the appellant, adopted and relied on the appellant’s brief deemed filed on 9/11/2021 and appellant’s reply brief of 21/12/2021 in urging this Court to allow the appeal. In it, counsel nominated two issues:
1. Whether the failure of the police to investigate the allegation of stealing against the case of the prosecution requiring the Court to dismiss the charges against the appellant.
2. Whether where evidence is at variance with the charge, it is not incumbent on the trial Judge to acquit the accused.

Mr. Samuel O. Otor, counsel for the respondent also adopted and relied on the respondent’s brief of argument in urging this Court to dismiss the appeal. He equally formulated two issues thus:-
1. Whether the appellant who is a staff of the Nigerian Breweries Plc. can be charged for the alleged criminal offences arising in the course of his employment contrary to Sections 65, 66 and 70 of the Companies and Allied Matters Act.
2. Whether from the proof of evidence before the honourable Court, the trial Court was right when it held that there is a prima facie case against the appellant when the lower Court refused the appellant’s no case submission.

​I have carefully considered the record as well as the two sets of formulations by counsel on both sides, the respondent’s issue No.2 captures the two issues of the appellant and the respondent’s remaining issue. I shall therefore determine this appeal on the basis of the respondent’s issue No.2.

Arguing the appeal on behalf of the appellant, counsel submits that neither the police final investigation report, exhibit 22 specifically nor the appellants’ statement to the police does the appellant been linked with the offences charged.

Counsel highlighted certain contradictions as regards the total value of products allegedly stolen with the amount contained on the charge sheet which counsel submits are very fundamental. In aid, he referred to NDIDI V. STATE (2007) 13 NWLR (prt.1052) 633 to contend that the said contradictions are not mere peripheral but material and substantial.

On the part of the respondent, counsel submits that the police investigation report which forms part of the proof of evidence points to one inevitable conclusion that the appellant has some explanations to make with the respect to the disputed customers orders and deposits raised in the name of the complainant with the Nigerian Breweries Plc.

​He submits further that what is required to proceed against an accused person is not the availability of sufficient evidence in proof of evidence capable of proving the case against the accused person but to merely find out whether there is any evidence connecting the accused to the offences charged. He referred to NYAME V. F.R.N. (2010)7 NWLR (prt. 1193) 420 at 421.

A submission of no case to answer may be properly made and upheld in the following circumstances:-
(a) When there has been no evidence to prove an essential element in the alleged offence, or
(b) Even when evidence has been adduced on the essential elements, the evidence has been so discredited as a result of cross-examination or is manifestly unreliable that no reasonable tribunal could safely on it.
See UBANATU V. C.O.P (2000)2 NWLR (prt. 643) 115 at 141.

It is instructive to note that where a Judge overrules a no case submission, he must be satisfied that a prima facie case is made out against the accused. 

Furthermore, the evidence establishing a prima facie case is not such as would justify a conviction. It only means that evidence has covered the essential elements of the alleged offence and if it remains uncontradicted and is not thoroughly discredited in cross-examination, a reasonable Tribunal may justifiably convict on it, and therefore, some explanation is required from the accused person. See ABOGEDE V. STATE (1996) 5 NWLR (prt. 448) 270.

The cumulative substance of the prosecution’s case before the trial Court was that of inflated value transaction which revolves around all the accused persons. In his evidence in chief, PW1 on page 865 of the record testified that the appellant herein, Achor was in distribution and was to ensure that products paid for are delivered. Also in his evidence, PW2 said on the appellant on page 881 lines 1-4 that:-
“The 5th accused person logistic manager in Nigerian Breweries handling distribution of customer’s products. On many occasions, I went to him crying for help when I had supply problems. All transactions legitimately undertaken must be captured in the record of the company.”

​As stated earlier that 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 person. 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.
Learned counsel for the appellant has made an allusion to certain discrepancies and/or contradiction on the value of the products allegedly stolen with the figure on the charge sheet which he argued to be material and substantial. Regrettably however, what is required to be determined at the stage of a no case submission is whether there are scintilla of evidence connecting or linking the accused with the offence charged and not whether there is sufficient evidence in proof of the offence charged capable of convicting the accused person.

In the instant case, there was a sufficient link between the appellant and the offences charged as demonstrated by the prosecution’s witnesses. The trial Judge was therefore right when he concluded on page 896 of the record that:-
“I had said that the existence of the slightest legally admissible evidence will always lead to the need to proceed beyond the case of the prosecution. I have found such in the instant case. The no case submission is overruled. Accused person may enter their defence.”

In conclusion, this appeal is meritless and should be dismissed. It is accordingly dismissed and the ruling of the lower Court is hereby affirmed.

BALKISU BELLO ALIYU, J.C.A.: I agree with the judgment prepared by my learned brother, M. L. Shuaibu, JCA. I adopt his reasoning in also dismissing this appeal for lack of merit. I affirm the ruling of the trial Court on the no case submissions.

ADEMOLA SAMUEL BOLA, J.C.A.: I had the benefit of reading in draft form, the judgment delivered by my learned brother, MUHAMMED LAWAL SHUAIBU, JCA. I am in agreement with his concise reasoning and conclusion as contained in the judgment.

​I abide by his conclusion dismissing the appeal for being unmeritorious. Ruling of the lower Court is affirmed.

Appearances:

Ededem Ani, Esq. For Appellant(s)

Gabriel Otor, Esq. For Respondent(s)