AGBEBAKU v. STATE
(2022)LCN/16080(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Tuesday, March 08, 2022
CA/C/421C/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
UABOI G. AGBEBAKU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW WHERE A NO CASE TO ANSWER IS MADE
It is settled that a submission that there is no case to answer may be properly made in the following circumstances:
(a) where there has been no evidence to prove an essential elements of the offence charged,
(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.
See IBEZIAKO V. C.O.P (1963)1 ALL NLR 61, AJIDAGBA V. I.G.P (1958) 3 F.S.C. 5, OKORO V. THE STATE (1988) 5 NWLR (prt.94) 255 and ADEYEMI V. THE STATE (1991) 6 NWLR (prt.195)1. PER SHUAIBU, J.C.A.
THE MEANING OF PRIMA FACIE
A prima facie which means a ground for proceeding with the case against the accused person is attained when the evidence is such that if uncontradicted, and if believed, it will be sufficient to prove the case against the accused person. PER SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading judgment): At the High Court of Akwa Ibom State, sitting in Uyo the appellant and eight others were arraigned on 207 amended charges for offences of conspiracy to defraud, stealing and falsification of account. Appellant and other co-accuseds pleaded not guilty and the matter went to trial. The prosecution called two witnesses and also tendered several documentary exhibits. At the close of the prosecution’s case, the appellant and others made a no case submission. On 23rd May, 2017, Ifiok E. Ukanna, J. in a considered ruling overruled the no case submission on page 896 of the record as follows:-
“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 persons may enter their defence.”
Dissatisfied, appellant appealed to this Court through a notice of appeal filed on 16/3/2018 subsequent to the leave granted on 7/3/2018. By the leave of this Court granted on 10/11/2021, appellant amended the notice of appeal and the amended notice of appeal contains three grounds of appeal.
Briefs of argument were duly filed and exchanged in accordance with the practice of this Court. The appellant identified the following two issues in his brief for the determination by this Court:
1. Whether from the totality of the evidence before the Court including evidence elucidated under cross-examination the prosecution made out a prima facie case requiring the appellant to enter a defence to the charge.
2. Where evidence is at variance with the charge it is not incumbent on the trial judge to acquit accused.
Two issues were also formulated in the respondent’s brief, namely:
1. Whether the appellant who is a staff of the Nigerian Breweries Plc. can be charged for 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.
On the appellant’s issue No.1, learned Senior Counsel, Joe Agi submitted that the failure to prove by any iota of evidence that contrary to the assertion of the appellant that he was not at any point in time at the locus criminis is clear evidence of not establishing a prima facie case against him.
Counsel submits that refusal to call vital witnesses to give evidence of delivery of products to complainant amounts to withholding evidence and in the absence of that evidence; the prosecution effort is an exercise in futility. He referred to OCHIBA V. STATE (2011) 17 NWLR (prt.1277) 663 to the effect that a vital evidence is such evidence that goes to the root of the ingredients of an offence of which an accused person is charged.
He finally submitted that upon a dispassionate appraisal of the charge and having regard to the evidence led by the prosecution inclusive of the evidence elicited during cross-examination, the prosecution has not made a prima facie requiring the appellant to enter his defence.
On his issue No.2, Counsel highlighted some contradictions in the evidence of the prosecution regarding the value of products allegedly stolen and or not supplied to the complainant, PW2 and submitted that the contradictions are material and substantial relying on NDIDI V. STATE (2007)13 NWLR (prt.1052) 633. He continued, the evidence of the prosecution as to the value of what was stolen must not be different or contradictory to the facts of what value of products in the charge before the Court. Counsel referred to EZE V. ENE (2017) LPELR – 41916 (SC) to contend that a party’s case is in his pleadings and his case is proved by his pleadings, and so evidence which is contrary to his pleadings go to no issue.
On his issue No.1, counsel to the respondent submitted that Sections 65, 66 and 70 of the Companies and Allied Matters being heavily relied upon by the appellant are not relevant to the case. And even if relevant, counsel argued that the company’s liability crystallizes only where the acts were carried out in the usual transactions or within the ambit or scope of the memorandum and Article of Association of the said company. In aid, counsel relied on ADEYEMI V. LAN & BAKER LTD (2001) 7 NWLR (prt. 663) 51 to the effect that these provisions of the law were not meant to shield employees from criminal liabilities.
On the respondent’s issue No.2, counsel contends that the police investigation report which formed integral part of the proof of evidence points to one inevitable conclusion, that appellant has some explanation to make with respect to the disputed customer orders and deposits raised in the name of the complainant under the appellant. He thus submitted that what is required to proceed against an accused person is not the availability of sufficient evidence in proof of the charge but to 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.
It is settled that a submission that there is no case to answer may be properly made in the following circumstances:
(a) where there has been no evidence to prove an essential elements of the offence charged,
(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.
See IBEZIAKO V. C.O.P (1963)1 ALL NLR 61, AJIDAGBA V. I.G.P (1958) 3 F.S.C. 5, OKORO V. THE STATE (1988) 5 NWLR (prt.94) 255 and ADEYEMI V. THE STATE (1991) 6 NWLR (prt.195)1.
It is pertinent to stress that the appellant’s complaints are that he was not at the locus criminis, vital witnesses were not called by the prosecution and that the evidence of the prosecution was riddled with inconsistencies as regards the actual value of the products allegedly stolen and/or not supplied. Permit me to state for the umpteenth time 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.
A prima facie which means a ground for proceeding with the case against the accused person is attained when the evidence is such that if uncontradicted, and if believed, it will be sufficient to prove the case against the accused person.
In the instant case, the prosecution through PW1 and PW2 as well as the exhibits tendered demonstrated that there was a departure from established procedure which caused lost of money by the nominal complaint. Furthermore, PW2 gave vivid account on instances he
made purchases through cheques in certain amount but the record of the Nigerian Breweries Plc. assigned a different value to the cheque to his detriment. He also led evidence to show inconsistence in the record relating to him kept by the company in respect of closing balances for some years.
From the evidence so far led by the prosecution, it is clear that some explanation is required from the appellant. perhaps, I may need to emphasize that all the issues raised by the appellant relating to alibi, contradictions and vicarious liability are not to be considered at the stage of no case submission. The same applies mutatis mutandi to the allegation of failure to call vital witnesses. As rightly posited by counsel to the respondent that at the stage of no case submission, the trial Court has limited jurisdiction to only ascertain whether there are snippets of evidence linking the accused with the commission of the offence(s) charged.
On the whole, the submission of no case to answer was rightly overruled by the learned trial judge and I so hold. Appeal dismissed.
BALKISU BELLO ALIYU, J.C.A.: I agree with the judgment of my learned brother, M. L Shuaibu, JCA. which I read in draft before today. I join him to dismiss this appeal for lacking in appeal. I affirm ruling of the trial High Court.
ADEMOLA SAMUEL BOLA, J.C.A.: My learned brother, Hon. Justice MUHAMMED LAWAL SHUAIBU, JCA., afforded me the privilege of reading in draft the judgment he has just delivered. I am persuaded by his reasoning and conclusion. They are adopted as mine.
I equally consider the appeal unmeritorious and deserve dismissal. It is accordingly dismissed. The Ruling of the lower Court is affirmed.
Appearances:
Joe Agi. SAN, with him, Dr. Paul E. For Appellant(s)
Gabriel Otor For Respondent(s)
