ADELEKE v. STATE (2020)

ADELEKE v. STATE

(2020)LCN/14384(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, June 18, 2020

CA/B/400C/2019

Before Our Lordships:

Samuel Chukwudumebi Oseji Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

ADEDEJI ADELEKE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

CONDITIONS FOR A NO CASE SUBMISSION TO SUCCEED

It may perhaps, be convenient and appropriate to start with the classical position, when dealing with the concept of a no case submission. This is, however, as it is enunciated by the old sage, UDO UDOMA, JSC (as he then was) in the case of GODWIN DABOH vs. THE STATE (1977) 5 SC, 197 at 214. He said that for a no case submission to succeed, it must be shown that:
1. No legally admissible evidence has been made out linking the accused with the commission of the offence.
2. Whatever evidence which might have linked the accused person with the commission of the offence had been so discredited by cross-examination, that no reasonable tribunal or Court could be called upon to act on it. PER OHO, J.C.A.

DEFINITION OF A “PRIMA FACIE CASE”
It is of course, to be stated here, that the decision in the above case is to be taken as authority for the view, that at the stage of no case, a Court is not called upon to express any opinion on the evidence and that where there is discredited evidence, it must be apparent from the records of Court. To do just this, it would be appropriate to preface the Court’s decision on the definition of the expression: “Prima facie” case. This was defined in the Indian case of SINGH vs. JITENDRANATHSEN (1931) 1LR. 59 CALC. 275 as:
“….Ground for proceeding. But it is not the same thing as proof which comes later when the Court has to find whether the accused is guilty or not guilty.”(Per Grouse J.) .. And the evidence discloses a prima facie case when it is such that if un-contradicted and if believed, it will be sufficient to prove the case against the accused.” (Per Lord Williams J.).
Nigeria’s apex Court in the cases of AJIDAGBA vs. I.G.P. (1958) SCNLR 60, ADEYEMI vs. THE STATE (1991) 6 NWLR (PT. 195) 1 at 35 adopted this definition. Now, in connection with defining the expression: “No case submission”, the Supreme Court in the case of IBEZIAKO vs. C.O.P. (1963) 1 SCNLR, 999, adopted the practice direction of the Queen’s Bench Division, reported in (1962) 1 WLR 227 and reproduced by ADEMOLA, CJN at pages 68 and 69 of the report as follows:
“A submission that there is no case to answer may properly be made and upheld:
a) When there has been no evidence in the alleged offence.

b) 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
Apart from these two situations a Tribunal should in general not be called upon to reach a decision as to conviction or acquittal until the whole of the evidence, which either side wished to tender, has been place before it. If however, a submission is made that there is no case to answer, the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.”
The Supreme Court in ATANO vs. AG-BENDEL AG – BENDEL STATE (1998) 2 NWLR (PT. 75) 201 also followed this practice direction and NIKI TOBI JCA (as he then was) in DR. OLU ONAGORUWA vs. THE STATE (1998) 1 ACLR, 435 at 465 paragraph 30 – 35, was of the opinion that the two conditions in the said directive are disjunctive and not conjunctive and that it would be competent for a judge to rule that an accused person has no case to answer if one of the two conditions is satisfied. Still, at page 465 of the report, NIKI TOBI (JCA) was of the further view at paragraph 40, in respect of the first condition, that a trial judge is entitled to discharge the accused if he is satisfied that the Prosecution by its own evidence, that is to say, by the ‘ipse dixit’ of the witnesses, did not prove or establish an essential element of the offence and that a trial judge may come to this conclusion even on evidence procured by the defense under cross-examination. PER OHO, J.C.A.

THE CRIMINAL OFFENCE OF CONSPIRACY

To begin with, the offence of Conspiracy, simply put, does not lie merely in the intention or thoughts of two or more persons to do an unlawful act or a lawful act by unlawful means, but in the agreement between them to carry out their unlawful intentions. It is also true, as submitted by the learned Counsel to the Prosecution, that the proof of agreement or common design could be inferred from the surrounding circumstances of the matter. But for the offence of Conspiracy to be properly inferred from the circumstances of the case, it must be deduced from certain criminal acts of the parties accused and done in pursuance of the apparent criminal purpose common between them. See the observation of OGWUEGBU, JSC at page 277 paragraphs EE in the case of BALOGUN vs. AG –OGUN (Supra) and also the decision in the case of HARUNA vs. THE STATE (1972) ALL NLR 738 at 754 on the subject. PER OHO, J.C.A.

INGREDIENTS TO PROVE THE OFFENCE OF MURDER

In defining the offence of murder, Section 316(a) and (b) of the Criminal Code provides as follows:
“Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:
(a) If the offender intends to cause the death of the person killed, or that of some other person;
(b) If the offender intends to do to the person killed or to some other person some grievous harm;
(c) …
(d) ……”

On a charge of murder, the Prosecution is expected to prove the ingredients of the offence beyond a reasonable doubt and these ingredients consist of the followings;
1. That death occurred;
2. That the defendant, either by his act or omission caused the death of the deceased;
3. That the act of the defendant was done with intention of causing harm. PER OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): Before the High Court of Justice in Benin-City, in the Benin Judicial Division, ADEDEJI ADELEKE was charged along with others with the offences of conspiracy to commit murder and murder of one BENSON OBODEH (M) on the 21st day of May, 2015 at Edo State Police Headquarters, Benin-City, Nigeria contrary to Sections 324, 319 respectively of the Criminal Code Cap. 48, vol. 11 LBSN, 1976. The said ADEDEJI ADELEKE, along with others were also charged with FOUR (4) separate stealing offences of various sums of money belonging to BENSON OBODEH (M) on the 23rd, 24th, 25th and 26th May, 2015 punishable under 390(9) of the Criminal Code; in yet a separate count, ADEDEJI ADELEKE along with others were charged with the offence of Extortion by Public Officer, punishable under Section 99 of the Criminal Code.

Seventeen (17) witnesses testified for the prosecution, while the Appellant as Accused person made a no case submission at the close of the case of the Prosecution, which no case submission the learned trial Court overruled. It is against the ruling of the trial Court that the Appellant

has appealed to this Court. In all, three (3) Grounds of Appeal were filed and from which learned Appellant’s Counsel distilled three (3) issues for the Court’s determination. These grounds are reproduced without their particulars as follows:
GROUNDS OF APPEAL:
1. The learned trial Judge erred in law when he dismissed the No case submission made on behalf of the Appellant in respect in respect of grounds and called upon the Appellant to enter his defense in counts 1, 2, 4, 5, 6, 7 and 10 of the charge before the Court, ever when the Prosecution failed to establish the ingredients of the alleged offences.
2. The learned trial judge erred in law when he dismissed the No case submission made on behalf of Appellant in respect of some grounds and called upon the Appellant to enter his defense in counts 1, 2, 3, 4, 5, 6, 7 and 10 of the charge before the Court, even when the evidence of the Prosecution was so manifestly unreliable/discredited by way of cross examination that no reasonable tribunal/Court could safely convict upon it.
3. The learned trial judge erred in law when he delivered a ruling in the No case submission but

failed to give any basis/reason for holding that the Appellant had a case to answer in respect of the various counts.

ISSUES FOR DETERMINATION;
Learned Appellant’s Counsel identified two issues for the Court’s determination as follows:
1. Whether His Lordship was right in calling on the Appellant to enter into his defense when the essential ingredients of the offences charged were not proved. (Ground 1).
2. Whether from the manifest, unreliable, contradictory and discredited evidence of the Prosecution witnesses, the Court was right to have ordered that a prima facie case has been made against the Appellant and to enter his defense. (Ground 2).

Learned Respondent’s Counsel, on its part nominated an issue for the Court’s determination thus;
“Whether the Prosecution made out a prima facie case of conspiracy, to commit murder, murder, stealing and extortion by public officers against the Appellant to warrant to enter his defense?”

The Appellant’s brief of argument, dated 23-8-2019 was settled by P. E. UWADIAI ESQ., and filed on the same date. The Respondent’s brief of argument,

dated the 30-9-2019 and settled by C. A. CHRIS-EBOSELE (MRS.) was filed on the same date. The Appellant also filed a Reply Brief date 15-1-2020 and filed on the 16-1-2020. On the 5-5-2020, at the hearing of this Appeal, learned Counsel for the parties adopted their briefs of argument on behalf of their sides, with each urging the Court to resolve the Appeal in favour of their sides. Upon a careful and calm perusal of the issues nominated by the parties for the determination of this Court, this Court due to reasons of comprehensiveness, shall determine this Appeal on the basis of the issues nominated by the Appellant, the sole issue nominated by the Respondent, which is clearly subsumed in the two issues nominated by the Appellant.

The case of the Prosecution, at this stage of the matter is that the Appellant and three others-all former Policemen were from the Special Anti-Robbery Squad, Lagos State Police Command. As members of the Lagos State Command, they were assigned the duty of going after some suspected stolen vehicles, whose presence were tracked and located in Benin, using their tracking devices. The Appellant and members of his team arrived Benin

on the 19th day of May, 2015 and the formalities for their operations in Benin were concluded at the State Police Command, Benin City, Edo State.

The Edo State Police Commissioner was said to have specifically instructed the O/C SARS Edo State Police Command to give the assistance to the Appellant and his men with a view to making the work of the visiting team easy. Consequent upon this position, the 5th Defendant was then assigned to give assistance to the visiting team. In the process of carrying out their duties, one Mr. Evans Idemudia was arrested and it was he that led the team to the house of one Mr. Benson Obodeh, himself having confessed to the crime of receiving robbed/stolen vehicles from the said Benson Obodeh.

On the 20th day of May, 2015, when the Appellant and his team visited the house of Mr. Benson Obodeh, he was not at home but the Appellant and his team left their phone numbers behind with the wife of the landlord of the said Benson Obodeh. In the early hours of the 21st day of May, 2015, the wife of the Landlord of Mr. Benson Obodeh, called team and told that Benson Obodeh has been arrested by the vigilante in the area.

The Appellant and the team went to the house of the Mr. Benson Obodeh to try and secure him from the vigilante, who had already subjected him to severe beatings. He was subsequently released to the Police, who took him to the State CID Police Headquarters, Benin City.

However, upon their arrival at the State CID Police Headquarters, it was discovered that Mr. Benson Obodeh was feeling seriously ill and was then taken to the Police clinic where he was confirmed dead and the corpse deposited at the Central Hospital mortuary. The deceased, Benson Obodeh’s elder brother, Solomon Obodeh later lodged a complaint against the Appellant and four other Defendants, that because the death of Benson Obodeh coincided with his arrest, then his death was caused by the Appellant and the other Defendants.

An Autopsy was conducted on the deceased in far away University of Calabar Teaching Hospital, when the family of the deceased Benson Obodeh protested that they lost confidence in the Pathologist in Benin, who also is a Policeman. The Inspector General of Police detailed a Police Investigation Team to investigate allegations of murder, stealing and extortion against

the Appellant and the other Defendants. It was at the conclusion of their investigations that the Appellant and the other members of the team were charged to Court.

I shall now go ahead and consider the submissions of learned Counsel made in support of the issues raised by them:
SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUE ONE:
Whether His Lordship was right in calling on the Appellant to enter into his defense when the essential ingredients of the offences charged were not proved? (Ground 1)

Learned Appellant’s Counsel contended that in this Appeal, the Appellant is charged in count one for an offence of conspiracy to commit a felony to wit: murder. He said that a cursory look at the evidence led by the Prosecution witnesses shows that there is no evidence from which the Court can infer conspiracy. On the definition of what amounts to conspiracy, Counsel cited the cases of MAJEKODUNMI vs. THE QUEEN (1952) 14 WACA 64 AT 66 and a host of other cases. According to learned Counsel, the conspiracy with which the Appellant had been charged cannot be inferred from the evidence of the 17 witnesses called by the Prosecution as there is

no where it can be deduced that there was an agreement amongst the Defendants to murder the deceased. Counsel said that the PW1 in this case was a mere mortician, while the evidence of the PW2 was bare, hollow and empty as it relates to the proof of conspiracy. He said that the PW3’s evidence merely talked about how the Defendants came to the house to effect the arrest of the deceased. On the part of the PW4 and 5, they are said to be workers at the Cottage Hospital where the deceased was said to have been taken to and the Doctor certified him dead. In the case of the PW6 and 7, Counsel said that they are not in any way connected to the issue of the conspiracy to wit: murder. According to Counsel the evidence of the PW8 one Peter Osawaru, the Husband of the PW11 and Mrs. Izehi Osawaru Marilyn does not in any way prove the offence of conspiracy and neither did the evidence of the PW12 Solomon Osagie Obodeh prove any conspiracy to wit: murder.

As for the offence of murder itself, Counsel contended that the Prosecution witnesses woefully failed to prove the essential elements of murder as required by law sufficiently to warrant the call on the

Appellant to enter her defense. The argument of learned Counsel is that for the Prosecution to succeed with the charge of murder, he is required to prove all the essential elements, which must co-exist before a prima facie case is said to have been made out. Counsel cited the cases of OLUDAMILOLA vs. THE STATE (2010) Vol. 181 LRCN 1 AT 5 & 6; ADAVA vs. THE STATE (2006) 9 NWLR (PT. 984) 152 in support.

Learned Counsel submitted that in the instant Appeal, the Prosecution failed to prove the ingredients of the offence of murder jointly as required. For instance, Counsel stated, that as it has to do with the cause of death, which the Prosecution must specifically prove, that the Prosecution evidence has been that of possibilities. He said that the PW14, the pathologist, Dr. Godwin Abeng Ebughe who performed the Autopsy in his testimony in page 698 of the record, stated thus;
“The blunt injuries on the deceased Benson Obodeh were not conspicuous for the untrained eyes to see…I did take an x-ray of the lower anatomy of the deceased…I don’t know who inflicted the blunt injury on the deceased…I noticed blunt injuries

around the waist of the deceased. A physical restraint by many people could cause blunt injuries but many other things could also cause blunt injuries.”

The contention of learned Counsel is that from the evidence of the PW14 and that of the PW11 at page 610 where he alluded to the fact that it was the vigilante, the local security that arrested the deceased and the evidence of the PW3, who said that;
“It was my neighbours that held the deceased by the waist, while we alerted the Police. Passersby heard when I was asking the deceased question and they came and held him…”

The argument of Counsel is that it is clear that if a physical restraint on the waist can lead to bleeding, it can therefore not be certain if not the holding of the waist by the local vigilantes or even the alleged acts of Defendants that may have led to bleeding. According to Counsel this left the Court with so many possibilities as to what may have led to the bleeding in the waist of the deceased that the Pathologist said aggravated his already deteriorated state of health, which may have already led to his death.

Arising from the foregoing, learned Counsel submitted that where there are possibilities as to the physical acts that may have led to death of the deceased, the accused person cannot be held criminally responsible for culpable homicide and therefore entitled to be discharged and acquitted. Counsel cited the cases of NWODO vs. THE STATE (1991) 4 NWLR (PT.185) 341 AT 355; TEGWONOR vs. THE STATE (2008) 1 NWLR (PT. 1069) 630. Learned Counsel also contended that where there is any intervening factor as could create some doubt on the actual cause of death, such doubt must be resolved in favour of the accused person. See the case of GODWIN ALAO vs. THE STATE (2016) VOL. 251 LRCN 166.

Learned Counsel contended that the IPO did a shoddy job investigating the allegations against the Appellant and also did nothing to resolve the situation of uncertainty which exists as to the cause of death of the deceased. He submitted that situation leaves the trial Court with a situation of speculations and conjectures when the serious issue of cause of death is to be determined. The argument of Counsel is that in a situation where the case of the Prosecution is founded on speculation as occasioned by the

ineptitude of the IPO, reasonable doubt will be the result and for which the Appellant is entitled to be discharged and acquitted. See the cases of ABIKE vs. THE STATE (2008) 6 LRCNCC 110 AT 124; UDOSEN vs. THE STATE (2007) 146 LRCN 771 AT 795.

The submission of learned Counsel, all said and done, is that in the absence of credible, compelling and convincing evidence, to establish a prima facie case against the Appellant in respect of this count, the only acceptable legal conclusion that the Court can come to is a discharge and acquittal of the Appellant made on his behalf. He urged this Court to sustain the No case submission made on behalf of the Appellant.

ISSUE TWO:
Whether from the manifest, unreliable, contradictory and discredited evidence of the Prosecution witnesses, the Court was right to have ordered that a prima facie case has been made against the Appellant and to enter his defense? (Ground 2)

In arguing this issue, learned Counsel submitted that the evidence led in respect of the counts for which the Appellant has been called upon to make a defense has been so manifestly discredited that no reasonable Tribunal or Court can

safely convict on them. Counsel further submitted that in respect of the evidence of the offences charged, there are material contradictions where a witness or some witnesses told lies such that it may not be safe to convict the accused person on it. Counsel cited the cases of OLAYINKA vs. THE STATE (2008) 6 ACLR 194 AT 216; AKINDIPE vs. THE STATE (2008) 5 NWLR (PT. 111) 560 AT 571. He argued that where two or more witnesses testify in a criminal proceeding and the testimony of such witnesses are contradictory and irreconcilable, it would be illogical to accept and believe the evidence of such witnesses. See the cases of ONUBOGU vs. THE STATE (1974) 9 SC 1 AT 2; NWOSU vs. THE STATE (1986) 2 NWLR (PT. 35) 648; ATANO vs. A.G. (1988) 2 NWLR (PT. 75) 201.

In respect of the charge of murder, Counsel submitted the evidence of the prosecution witnesses are materially contradictory in respect of the event that led to the death of the deceased. According to Counsel, the PW11 in her testimony claimed that it was Solomon Obodeh that drove her to the State CID on the day of the incident as shown on page 657 of the records of Appeal, while in the evidence of the

PW12, Solomon Obodeh, was to the effect that he was in Jos when his Brother, the deceased was arrested by the Police on the 21st of May, 2015 as shown on page 676 of the records.

Still on contradictions, Counsel referred to the evidence of the PW7, who claimed that he heard the deceased crying at the back of the building and also claimed that he saw the sister of the deceased pleading with the accused persons including the Appellant to release her brother; but categorically said that all this his claims were not contained in his statement to the Police. The contention of Counsel was that his statements to the Police were made at the time these facts were fresh in his mind and therefore ought to have remembered them.

As it relates to the evidence of the PW8, Counsel said that he claimed that he saw the 5th Defendant putting blocks at the back of his in-law Benson Obodeh, the PW11 but that his wife informed the Court that they had no access to see the deceased where he was at the back of the building. Again, Counsel said that the PW8 and PW11 said that they were restrained from seeing the deceased but that in another breadth, the PW8 claimed that he

saw blocks being placed on the deceased. These contradictions, Counsel argued are sufficient to create doubts in the minds of the Court and cited a number of cases in support.

Learned Counsel also submitted that the evidence of the IPO was puerile and devoid of any legal material to show that a case as heinous as murder was ever investigated. He said that in his evidence at page 728 of the record, he said that his investigation revealed that 5th Defendant ought not to have been charged to Court at all. Counsel contended that if this his evidence is put side by side the evidence of other witnesses who claimed that the 5th Defendant played a role, it then means that this amounts to yet another contradiction, which renders the whole case dead on arrival.

On the issue of stealing, Learned Counsel submitted that the evidence led in support of same cannot sufficiently prove the case of stealing. He said that the exhibits tendered vis-à-vis the oral evidence given in Court are not only contradictory, but also did not prove the case of stealing with certainty. Counsel zeroed on the evidence of the IPO who categorically stated that he only investigated

a case of murder.

According to learned Counsel, the evidence of the PW16 fell short of the proof of a case of stealing and contended that there was no evidence proffered in Court to prove count 5, which the Court below has asked the Appellant to defend. Counsel also submitted that even with a confessional statement credited to the Appellant, a holistic overview of the confessional statement did not reveal that the Appellant admitted making the withdrawals as contained in the charge sheet. It was further contended by Counsel that a careful perusal of the confessional statement of the Appellant will show that its contents are not consistent with other facts, which are ascertained and proved at the trial. Counsel finally urged this Court to allow the Appeal and discharge and acquit the Appellant.

RESPONDENT:
SOLE ISSUE:
“Whether the Prosecution made out a prima facie case of conspiracy, to commit murder, murder, stealing and extortion by public officers against the Appellant to warrant to enter his defense?”

In arguing this issue, learned Respondent’s Counsel contended that the Prosecution adduced sufficient and

overwhelming evidence at the trial. Counsel further contended that with the evidence of the PW1 to PW17 and all the numerous exhibits tendered showed that the Appellant conspired with other accused persons to murder the deceased, one Benson Obodeh and stole his money after his death and further extorted the sum of N500,000 from one Fidelis Onyia in order to release another victim Ajor Sylvanus.

In respect of the Count of conspiracy and murder, learned Counsel contended that the Prosecution sufficiently made a prima-facie case against the Appellant and referred Court to pages 546-549 of the record of Appeal, specifically the evidence of the PW1, who was subpoenaed to give evidence at the trial. Counsel said that the PW1 gave evidence as to how the Appellant and others brought in the deceased already dead to the mortuary where he is an attendant.

Learned Counsel also referred to the evidence of PW4 and PW5 at pages 570 to 573 of the record of Appeal. Counsel referred to the evidence of Dr. Omozore and John Adukwu both of Cottage Hospital, GRA Benin City who stated how the Appellant and others brought the lifeless body of the deceased to their

Hospital in the evening of the 21st day of May, 2015. The evidence of the PW6 one Ajor Sylvanus at page 584 of the record was also referred to, who testified as to how the Appellant and other accused persons brought the deceased into custody and dropped his lifeless body on the ground.

The evidence of the PW8 and PW11 at pages 610-662 of the record was also referred to and how they testified to the fact that the deceased left home on the said date, hale and hearty with his ATM Card and the sum of N200,000.00 before he was arrested by the Appellant and the other accused persons and taken to the State CID from the morning hours and until evening of the 21st day of May, 2015. The evidence of the PW11, who also said at the trial that she heard the voice of the deceased who said: “Mama Derick come and help me”, was also referred to.

Learned Counsel also argued that from the evidence of the PW1, PW4, PW5, PW6, PW8 and PW11, it is clear that the Appellant and the others arrested the deceased in the morning of the 21st May, 2015 when he was hale and hearty and tortured him to death and thereafter took his corpse to the Police Cottage Hospital and

deposited same with the PW1 at the Central Hospital Mortuary, Benin City after deliberately falsifying his name to read Benson Agwu instead of Benson Obodeh.

The evidence of the PW9, one Charles Ediae of the First City Monument Bank; PW13, Clement Isehegbe of the First Bank Nig. Plc and PW16, Sunday Oyedaro of Guarantee Trust Bank, whose evidence revealed that the deceased’s ATM Card No: 506010XXXX7831 was used to withdraw money from his First Bank Account No: 3070150149 on the 23rd, 24th and 25th days of May, 2015 after his death on the 21st day of May, 2015. Counsel further disclosed that the evidence of the IPO, who testified as the PW17 at page 711 of the record is also instructive. Counsel said that the IPO’s evidence revealed overwhelmingly, how the Appellant made a confessional statement to the effect that he used the deceased’s ATM Card to withdraw money in Port-Harcourt at pages 643, 689 and 709 of the record of Appeal.

Counsel submitted that the number of times the Appellant said that he withdrew money from the deceased’s account tallied with the exhibits tendered by the Prosecution through PW9, PW13 and PW16.

See page 196 of the record of Appeal. Counsel further submitted that Exhibit “M”, the Appellant’s confessional statement was keenly contested at the Court below before it was finally admitted into evidence. See pages 67-75 of the record of Appeal.

Learned Counsel also referred to pages 682, 697 and 700 of the record of Appeal dealing with the evidence of Solomon Obodeh and as well as the PW14 and PW15 – the Medical Doctors who performed autopsy on the deceased as to the cause of death. Counsel further disclosed that evidence was also led as to the fact the Appellant and the others loaded blocks on the back of the deceased, leading to his death and decided to deposit his corpse at the mortuary with a false or different identity.

As far as Counsel is concerned, the Prosecution adduced sufficient evidence to prove the ingredients of the offence of conspiracy to commit murder, murder, stealing and extortion and that these pieces of evidence remain unchallenged even after cross-examination.

In respect of the count of Murder, learned Counsel contended that the Prosecution led sufficient evidence to prove the ingredients of the offence.

Counsel referred to page 547, the evidence of the PW1, one Gabriel Oriakhi, the mortician; Pages 572 and 574 of the record of Appeal for the evidence of the PW4, Dr. Omozore and PW5 John Aduku and pages 697 and 700; PW14 Dr. Godwin Abeng Ebughe and Dr. Akhiwu. Counsel also disclosed that the Prosecution led evidence to show that deceased was tortured to death by the Appellant and others who hung him on a tree and loaded blocks on his back. Counsel referred Court to page 550 of the record and the testimonies of the PW2 and PW11. Counsel said that the PW7 stated in his evidence that at the time he saw the deceased, he was no longer able to sit up and that he PW17 was ordered by the Appellant to sit him up and that one of those with the Appellant poured water on the deceased. See page 595 of the record of Appeal.

Learned Counsel also submitted that the evidence of the Prosecution witnesses were not contradictory but were rather reliable and credible; that the evidence of the PW1 was cogent and straight to the point narrating how the Appellant and others brought the deceased to the mortuary. Counsel urged this Court to dismiss this Appeal and affirm the

Ruling of the Court below.

RESOLUTION OF APPEAL
It may perhaps, be convenient and appropriate to start with the classical position, when dealing with the concept of a no case submission. This is, however, as it is enunciated by the old sage, UDO UDOMA, JSC (as he then was) in the case of GODWIN DABOH vs. THE STATE (1977) 5 SC, 197 at 214. He said that for a no case submission to succeed, it must be shown that:
1. No legally admissible evidence has been made out linking the accused with the commission of the offence.
2. Whatever evidence which might have linked the accused person with the commission of the offence had been so discredited by cross-examination, that no reasonable tribunal or Court could be called upon to act on it.
It is of course, to be stated here, that the decision in the above case is to be taken as authority for the view, that at the stage of no case, a Court is not called upon to express any opinion on the evidence and that where there is discredited evidence, it must be apparent from the records of Court. To do just this, it would be appropriate to preface the Court’s decision on the definition of the

expression: “Prima facie” case. This was defined in the Indian case of SINGH vs. JITENDRANATHSEN (1931) 1LR. 59 CALC. 275 as:
“….Ground for proceeding. But it is not the same thing as proof which comes later when the Court has to find whether the accused is guilty or not guilty.”(Per Grouse J.) .. And the evidence discloses a prima facie case when it is such that if un-contradicted and if believed, it will be sufficient to prove the case against the accused.” (Per Lord Williams J.).
Nigeria’s apex Court in the cases of AJIDAGBA vs. I.G.P. (1958) SCNLR 60, ADEYEMI vs. THE STATE (1991) 6 NWLR (PT. 195) 1 at 35 adopted this definition. Now, in connection with defining the expression: “No case submission”, the Supreme Court in the case of IBEZIAKO vs. C.O.P. (1963) 1 SCNLR, 999, adopted the practice direction of the Queen’s Bench Division, reported in (1962) 1 WLR 227 and reproduced by ADEMOLA, CJN at pages 68 and 69 of the report as follows:
“A submission that there is no case to answer may properly be made and upheld:
a) When there has been no evidence in the alleged offence.

b) 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
Apart from these two situations a Tribunal should in general not be called upon to reach a decision as to conviction or acquittal until the whole of the evidence, which either side wished to tender, has been place before it. If however, a submission is made that there is no case to answer, the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.”
The Supreme Court in ATANO vs. AG-BENDEL AG – BENDEL STATE (1998) 2 NWLR (PT. 75) 201 also followed this practice direction and NIKI TOBI JCA (as he then was) in DR. OLU ONAGORUWA vs. THE STATE (1998) 1 ACLR, 435 at 465 paragraph 30 – 35, was of the opinion that the two conditions in the said directive are disjunctive and not conjunctive and that it would be competent for a judge to

rule that an accused person has no case to answer if one of the two conditions is satisfied. Still, at page 465 of the report, NIKI TOBI (JCA) was of the further view at paragraph 40, in respect of the first condition, that a trial judge is entitled to discharge the accused if he is satisfied that the Prosecution by its own evidence, that is to say, by the ‘ipse dixit’ of the witnesses, did not prove or establish an essential element of the offence and that a trial judge may come to this conclusion even on evidence procured by the defense under cross-examination.
In respect of the second condition, there are two angles submitted under it. The first is that an accused person can be discharged on a no case submission if the trial judge comes to the conclusion that he cannot give credibility or credence to the case of the prosecution, as a result of the cross-examination of the witnesses by the defense. The second is that the trial judge can discharge an accused person if the evidence adduced by the prosecution on the face of it or by mere perception does not disclose a ‘prima facie’ case against the accused person.

In applying these principles to the facts of the case, I will next consider the counts in the charge for which the Appellant as an accused person was arraigned before the trial Court. Having carefully done this, I shall go ahead and examine the elements of the offences of Conspiracy to commit murder and the offence of murder in the light of the evidence led by the Prosecution in this case.

BALOGUN vs. AG –OGUN (Supra) and also the decision in the case of HARUNA vs. THE STATE (1972) ALL NLR 738 at 754 on the subject.

Now in going back to the facts of this case, dealing with the question of Conspiracy to commit murder, the evidence of the PW1 at pages 546 – 549 of the printed records of Appeal, cannot be easily waved away. It would be recalled that this was the evidence of subpoenaed witness. He was the one who received the lifeless body of the deceased at the mortuary and saw the Appellant who came in the company of the first, second, third, and fourth accused person to deposit same at the Central Hospital Mortuary, Benin City and in the process falsified the deceased name to read “Benson Agwu” instead of “Benson Obodeh”. The act of falsifying the deceased’s name in the opinion of this Court was an act to conceal something sinister done amongst them and apparently, the common criminal purpose between them. I shall say no more on this issue, but that as far as this Court is concerned, I cannot agree less with the learned Counsel for the Prosecution, that a prima facie case was made by the Prosecution with respect to the

count of Conspiracy to commit murder for which the Appellant has to be called upon to enter his defense.

The evidence of the PW4, PW5, PW6, PW8 and PW9 on the sordid events which took place after the arrest of the deceased on the said 21st day of May, 2015 in the morning, when he was hale and hearty is quite instructive. It is apposite to suggest that the learned trial Court shall require explanations from the Appellant on how an able bodied young man in the person of the deceased, who was arrested in sound physical health condition suddenly experienced such deteriorated and worsened health condition within a spate of a few hours and ended up dead.

The count 2 deals with the offence of murder. In defining the offence of murder, Section 316(a) and (b) of the Criminal Code provides as follows:
“Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:
(a) If the offender intends to cause the death of the person killed, or that of some other person;
(b) If the offender intends to do to the person killed or to some other person some grievous harm;
(c) …
(d) ……”

In the instant case, the Prosecution led overwhelming evidence to show that the deceased died, through the evidence of the PW1, one Gabriel Oriakhi who was the mortician at pages 572 – 574 of the printed record; the evidence of the PW4, Dr. Omozore and the PW5 John Aduku at pages 697 – 700 of the record, alongside the evidence of Dr. Godwin Abeng Ebughe and Dr. Akhiwu, who testified as the PW14 and PW15 respectively.

In respect of the second limb of the offence of murder, that is, that the Defendant, either by his act or omission caused the death of the deceased, the

Prosecution relied on the testimonies of the PW2, one Monday Omosigho; PW3, one Faith Omosigho, the PW8 – Peter Osawaru and others. In respect of the last ingredient and whether the Prosecution was able to establish a prima facie case? The testimonies of the PW8 and PW11 are there for the Appellant to contend with. In addition and at this stage, would it be safe to suggest that the Appellant and his co-accused persons did not know of the probable consequences of their actions? That would be left for the trial judge to decide.

As it has to do with the count of stealing, the evidence of the PW9, one Charles Ediae of the First City Monument Bank; PW13, Clement Isehegbe of the First Bank Nig. Plc and PW16, Sunday Oyedaro of Guarantee Trust Bank, succeeded in establishing a prima facie case. The evidence of these witnesses revealed that the deceased’s ATM Card No: 506010XXXX7831 was used to withdraw money from his First Bank Account No: 3070150149 on the 23rd, 24th and 25th days of May, 2015 after his death on the 21st day of May, 2015. The evidence of the IPO, who testified as the PW17 at page 711 of the record is also instructive. On the count of

stealing, also the IPO’s evidence revealed how the Appellant made a confessional statement to the effect that he used the deceased’s ATM Card to withdraw money in Port-Harcourt at pages 643, 689 and 709 of the record of Appeal.

I now next consider the second limb of what would normally result in a no case submission, if and when it is competently raised in Court. And that is to wit;
“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.”
In interpreting this position, NIKI TOBI JCA (as he then was) in ONAGORUWA vs. STATE (Supra) said that “under the first arm, an accused can be discharged on a no case submission if the trial judge comes to the conclusion that he cannot give credibility or credence to the case of the prosecution, as a result of cross-examination of the witnesses of the defense. In other words, by the cross-examination, the trial judge does not believe the evidence of the Prosecution. That is to say, that the Prosecution’s case succumbs to the rigours of

cross-examination so much so that the evidence is deprived of credibility.
Under the second arm, it is instructive to note that the trial judge can discharge an accused ‘suo motu’ if the evidence adduced by the Prosecution does not, on the face of it or by mere perception, disclose a prima facie case against him”. Perhaps, the question to be considered here; is whether this is not the position of what transpired in this case, as far as the evidence on the record could show? NIKI TOBI JCA (as he then was) in the said ONAGORUWA’S case (Supra), observed, that in considering what alternative or option to invoke, the law expects a trial judge to examine the totality of the evidence of the prosecution as a single flowing story and not in “bits or pockets” of evidence.

Learned Appellant’s Counsel made a heavy weather submitting that the Prosecution’s case was fraught with inconsistencies and contradictions. From earlier decided authorities on the subject; see NDIBILIE vs. THE STATE (1965) NMLR AT 257; ANTHONY ENAHORO vs. THE QUEEN (1965) NMLR 265 AT 281; ARUEYE vs. THE STATE (1967) NMLR 210, it is clear that

the duty of the Appellant who comes to Court complaining of discrepancies, contradictions and/or inconsistencies in the story of the Prosecution, is to satisfy the Court that there are;
a. In actual fact grave or material contradictions in the evidence of the prosecution witnesses and not just figments or semblance of same.
b. That such serious or important contradiction as may be shown to exist, are in the light of the evidence of the witnesses weighty enough as to make it dangerously unsafe to accept and rely on them.
c. That the trial Judge failed to mention in his judgment these contradictions or assess their relative effect on the credibility of the witnesses or where he has mentioned them, he ignored the clear decision in the case of ONUBOGU vs. THE STATE (1974) 9 S.C. 1, by “picking and choosing” between conflicting pieces of there has been no explanation from the prosecution witnesses.

In the instant case, the alleged contradictions to my mind are clearly of no moment or virtually non-existent. In short, there is nothing on the record to suggest otherwise. I am therefore in agreement with the findings and conclusions

reached by the learned trial Judge on the issue. He saw the witnesses and was in a better position to assess their credibility having watched their demeanour. Where the so-called contradictions are not material, the Court ought not to bat an eye-lid on the issue.

From the foregoing therefore, the no case submission made by learned Appellant’s Counsel, fails and it is accordingly dismissed. Consequently, the Ruling of the Court below delivered on the 23rd day of February, 2018 is hereby affirmed.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother FREDERICK OZIAKPONO OHO, JCA.
I agree with the reason and conclusion that have been reached as contained therein. I have nothing to add.

Consequently, I also hold that this appeal lacks merit and it is hereby dismissed.
The Ruling of the High Court of Edo State delivered on the 23rd day of February, 2018 is hereby affirmed.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother F. O. OHO, J.C.A., and I am in agreement with

him that the appeal lacks merit. In the event, I also dismiss it.

Appearances:

E. UWADIAE, ESQ. For Appellant(s)

A. CHRIS EBOSELE (MRS.) Deputy Director, Ministry of Justice Edo State For Respondent(s)