AHMED v. F.R.N (2020)

AHMED v. F.R.N

(2020)LCN/14697(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Tuesday, October 20, 2020

CA/KN/559/C/2019

RATIO

NO CASE SUBMISSION: PRINCIPLES THAT A TRIAL COURT SHOULD TAKE INTO CONSIDERATION IN DECIDING WHETHER OR NOT TO UPHOLD A NO CASE SUBMISSION

The principles that a trial Court should take into consideration in deciding whether or not to uphold a no case submission have been stated and restated many times over the years. It is settled law that in a criminal trial, at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of a defendant postulates one of two things or both of them at once. Firstly, that there has been throughout the trial no legally admissible evidence at all against the defendant, on behalf of whom the submission of no prima facie case has been made, linking him in any way with the commission of the offence with which he has been charged, which would necessitate his being called upon for his defence. Secondly, that whatever evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable court can be called upon to act on it as establishing the criminal guilt in the defendant concerned. Apart from these two situations, a tribunal or court should not in, general, be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it – Suberu Vs State (2010) 1 NWLR (Pt 1176) 494, Fagoriola Vs Federal Republic of Nigeria (2013) 17 NWLR (Pt 1383) 322. PER ABIRU, J.C.A.
NO CASE SUBMISSION: ESSENCE OF A SUBMISSION OF A NO CASE

The essence of a submission of a no case to answer lies in the contention that the evidence of the prosecution called in the discharge of the burden of proof placed on it by law has failed to establish a prima facie case or establish the ingredients of the offence against the defendant, to make it imperative for the Court to call upon the defendant to defend himself or answer to the charge or open his defence or enter his defence. Where a no case submission is made, what is to be considered by the Court is not whether the evidence produced by the prosecution against the defendant is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring, at least, some explanation from the defendant as regard his conduct or otherwise. PER ABIRU, J.C.A.
PRIMA FACIE CASE: WHEN IS A PRIMA FACIE CASE MADE OUT

A prima facie case is made out where the evidence adduced by the prosecution is such that, if un-contradicted, would be sufficient to prove the case against the defendant. At the stage of a no case submission at the close of the prosecution’s case, what is required of a trial Court is not to evaluate or give weight to the evidence led by the prosecution at that stage or to write a lengthy judgment. The Court should not consider the credibility of the prosecution witnesses and it is premature for the Court to believe or disbelieve the witnesses since defence is yet to present its witnesses. A ruling on a no case submission should be as brief as possible and not in any way go into evaluation of the evidence led – Tongo Vs Commissioner of Police (2007) 12 NWLR (Pt 1049) 525, Ekwunugo Vs Federal Republic of Nigeria (2008) 15 NWLR (Pt 1111) 630, Fagoriola Vs Federal Republic of Nigeria (2013) 17 NWLR (Pt 1383) 322, Uzoagba Vs Commissioner of Police (2014) 5 NWLR (Pt 1401) 441, Egharevba Vs Federal Republic of Nigeria (2016) 10 NWLR (Pt 1521) 431.
It is not the business of the Court to evaluate the case put forward by an accused person in his extra judicial statement at the stage of a no case submission and neither is it the business of the trial Court to evaluate the evidence of prosecution witnesses in favour of the case of an accused defendant at that stage. A no case submission means that there is no evidence on which the Court could convict even if the Court believes the evidence given – Akpan Vs State (1986) 3 NWLR (Pt 27) 225, Ohuka Vs State (No 2) (1988) 4 NWLR (Pt 86) 36, Fagoriola Vs Federal Republic of Nigeria (2013) 17 NWLR (Pt 1383) 322. In Agbo Vs State (2013) 11 NWLR (Pt 1365) 377, the Supreme Court reiterated what a trial Court should concern itself with in considering a no case submission. Fabiyi, JSC at page 394 B-G stated thus:
“It is now basic that in considering a submission of no case to answer it is not necessary at that stage to determine whether the evidence is sufficient to justify a conviction. The Court only has to be satisfied that there is a prima facie case which requires at least some explanation from the accused person.
As inferred by Abbot, FJ in Ajidagba v IGP…, prima facie case is not the same as proof which comes later when the Court may find whether the accused is guilty or not. 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. On his own part, Nnamani, JSC (of blessed memory) in Duru v Nwosu …maintained that prima facie case means that ‘there is ground for proceeding’. In other words, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it (prima facie) ‘suggests that the evidence produced so far indicates that there is something worth looking at’.
… 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. The Court is only called upon to take note and rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence charged. But if there is legally admissible evidence, however slight, the matter should proceed as there is something to look at.”
This is a re-affirmation of the statement of law that however slight the evidence linking an accused person with the commission of the offence charged might be, the case ought to proceed for the accused to explain his own side of the matter –Ibeziako Vs Commissioner of Police (1963) 1 SCNLR 99, Daboh Vs The State (1977) 5 SC 197 at 209, Adeyemi Vs The State (1991) 6 NWLR (Pt 195) 1, Igabele Vs State (2004) 15 NWLR (Pt 896) 314, Aituma Vs State (2007) 5 NWLR (Pt 1028) 466, Fagoriola Vs Federal Republic of Nigeria (2013) 17 NWLR (Pt 1383) 322, Uzoagba Vs Commissioner of Police (2014) 5 NWLR (Pt 1401) 441, Commissioner of Police Vs Amuta (2017) 4 NWLR (Pt 1556) 379. PER ABIRU, J.C.A.

EVIDENCE: WHETHER THE EVIDENCE OF AN INVESTIGATING POLICE OFFICER AS TO WHAT HE DISCOVERED, SAW AND HEARD IS NOT ADMISSIBLE

Counsel obviously forgot the principle that postulates that the evidence of an Investigating Police Officer as to what he saw, heard and/or discovered during the course of his investigation is not hearsay and it is admissible evidence –Arogundade Vs State (2009) 6 NWLR (Pt 1136) 165, Anyasodor Vs State (2018) 8 NWLR Pt 1620) 107, Brilla Energy Ltd Vs Federal Republic of Nigeria (2018) 16 NWLR (Pt 1645) 305, Rowaye Vs Federal Republic of Nigeria (2018) 18 NWLR (Pt 1650) 21. PER ABIRU, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

MANSUR AHMED APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision contained in the Ruling of the Federal High Court sitting in Kano in Suit No FHC/K/CR/56/2018 delivered by Honorable Justice A. Lewis-Allagoa on the 29th of September, 2019.

The Appellant was the third accused defendant on a criminal charge consisting of six counts. The other accused defendants were Ibrahim Shekarau and Aminu Bashir Wali. The Appellant was implicated in two counts, Counts Four and Five, on the six count charge. The two counts read thus:
That you Aminu Bashir Wali and Mansur Ahmed on or about 26th of March 2015 at Kano within the Kano Judicial Division of the High Court received cash payment of the sum of Nine Hundred and Fifty Million Naira (N950,000,000.00) from the Peoples Democratic Party without transacting through a financial institution and thereby committed an offence contrary to Section 1(a) of the Money Laundering (Prohibition) Act 2011 (as amended) and punishable under Section 16(2)(b) of the same Act.
That you Mansur Ahmed, on or about the 27th of March, 2015 at Kano within the Kano Judicial Division of the

High Court received cash payment of the sum of Ten Million Naira (N10,000,000.00) from the Peoples Democratic Party without transacting or receiving same through a financial institution and thereby committed an offence contrary to Section 1(a) of the Money Laundering (Prohibition) Act 2011 (as amended) and punishable under Section 16(2)(b) of the same Act.

The Appellant pleaded Not Guilty to the two counts and the matter proceeded to trial. The Respondent called four witnesses and tendered documentary evidence in proof of its case. At close of the case of the Respondent, the Appellant opted to make a no case submission and his Counsel filed necessary processes in that regard. Counsel to the Respondent filed processes in opposition to the no case submission. The lower Court took arguments thereon and delivered a Ruling wherein it found that the Respondent had made out a prima facie case against the Appellant sufficiently requiring him to enter a defence and it refused the application of no case submission. The Appellant was dissatisfied with the Ruling and he caused his Counsel to file a notice of appeal dated the 3rd of October, 2019 and containing three

grounds of appeal against it.

In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 18th of October, 2019 on the 24th of October, 2019. Counsel to the Appellant thereafter filed a motion on notice dated the 16th of January, 2020 on the 20th of January, 2020 praying for the trinity prayers to appeal against the Ruling of the lower Court and for orders regularizing the notice of appeal already filed, the record of appeal already compiled and transmitted and the Appellant’s brief of arguments also already filed. This Court took arguments on the application and it delivered a considered Ruling on the 26th of February, 2020 granting all the prayers sought thereon. The Appellant’s brief of arguments was deemed properly filed that day. Counsel to the Respondent filed a Respondent’s brief of arguments dated the 25th of November, 2019 on the 27th of November, 2019 and the brief of arguments was deemed properly filed and served by this Court on the 16th of September, 2020. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs

of arguments.

Counsel to the Appellant distilled two issues for determination in the appeal and these were:
i. Whether having regard to the evidence adduced by the prosecution, the Court below was right to hold that the prosecution established a prima facie case against the Appellant to warrant the Appellant being called upon to enter his defence.
ii. Whether having regards to the records of appeal, the learned trial Judge was right when he relied on the amended charge in dismissing the Appellant’s no case submission.

On his part, Counsel to the Respondent distilled one issue for determination in the appeal and it was:
Is the lower Court not right to hold that the Respondent has made out a prima facie case against the Appellant to warrant him being called upon to enter his defence.

The first issue for determination formulated by Counsel to the Appellant is the same in context as the sole issue for determination formulated by Counsel to the Respondent. This appeal will be resolved on the two issues for determination formulated by Counsel to the Appellant. The issues for determination will be considered seriatim.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Issue One
Whether having regard to the evidence adduced by the prosecution, the Court below was right to hold that the prosecution established a prima facie case against the Appellant to warrant the Appellant being called upon to enter his defence.

Reading through the Appellant’s brief of arguments and the Respondent’s brief of arguments, this Court notes that Counsel to the parties, in canvassing their submissions, mixed up the case made out against the Appellant with that made out against particularly the first co-accused defendant on the charge sheet before the lower Court. In considering arguments of Counsel on the first issue for determination therefore, this Court will strive to decode the arguments specific to the Appellant and sever them from those in favour of the case of the first co-accused defendant.

In arguing the issue for determination, Counsel to the Appellant traversed through the two counts of offences against the Appellant and stated that, to succeed, it was incumbent on the Respondent to lead cogent and credible evidence to show, prima facie, that the Appellant received cash payments of N950 Million and N10

Million and that the cash payment was made by People’s Democratic Party for services rendered by the Appellant and that the Appellant accepted the cash payments which were above the threshold without passing through a financial institution. Counsel stated that the Respondent did not lead evidence to prove any of these ingredients to warrant the lower Court holding that a prima facie case was made out and he referred to and quoted from the cases of Adama Vs State (2018) 3 NWLR (Pt 1605) 94, Fagoriola Vs FRN (2013) 17 NWLR (Pt 1383) 322, Okafor Vs State (2016) 4 NWLR (Pt 1502) 248 Chyfrank Nig Ltd Vs FRN (2019) 6 NWLR (Pt 1667) 148 in asserting the essence and importance of a no case submission.

Counsel referred to the case of State Vs Azeez (2008) 4 SC 188 in asserting that in any criminal trial, the burden of proof of the crime alleged against an accused defendant remains on the prosecution until satisfactorily discharged and he invited the Court to look at the totality of the oral and documentary evidence led by the Respondent in determining whether the lower Court was correct in finding that a prima facie case was made out against the Appellant.

Counsel stated that there was nothing in any of the documents tendered by the Respondent which shows that the Appellant received cash payments either in the sum of N950 Million or the sum of N10 Million from the People’s Democratic Party and that the only evidence presented was the receipt of N950 Million from a registered financial institution, Fidelity Bank Plc, and which money was taken to the house of the first accused defendant for security reasons.

Counsel stated that the evidence of the first prosecution witness that he discovered during investigation that money was distributed to the Appellant and his co-accused defendants and that the Appellant received N10 Million was an unreliable hearsay evidence as the witness admitted under cross-examination that he was not present when the money was allegedly shared to the Appellant and that he was not the only officer that conducted investigations into the allegations and he referred to the case of Kachi Vs State (2015) 9 NWLR (Pt 1464) 213. Counsel stated that the second prosecution witness confirmed that the N950 Million was released to the second co-accused defendant by Fidelity Bank Plc and that

the witness confirmed that the payment was made in compliance with the cashless policy of the Federal Government, in the written statement he made during investigation.

Counsel stated that the evidence of the third prosecution witness did not assist the case of the Respondent and that the fourth prosecution witness also testified that the sum of N950 Million was released to the Appellant and the second co-accused defendant by Fidelity Bank Plc and that the instructions to release the money came from the headquarters of the Bank. Counsel stated that the evidence of the first, second and fourth prosecution witnesses show that whatever money that was received through a recognized financial institution, Fidelity Bank Plc, and that the Respondent failed to establish the ingredients of the offences charged against the Appellant and did not link the Appellant with the commission of any offence. Counsel stated that the lower Court was thus in error when it found that a prima facie case was made out requiring the Appellant to enter a defence and he urged the Court to resolve the issue for determination in favor of the Appellant.

Counsel prayed the Court to find merit in the appeal and to accordingly allow same, set aside the decision contained in the Ruling of the lower Court and uphold the no case submission of the Appellant.

In his response, Counsel to the Respondent referred to the provision of Section 303(3) of the Administration of Criminal Justice Act, 2015 and several case law authorities, including Ibeziako Vs COP (1963) NNLR 88 and Igabele Vs State (2004) 15 NWLR (Pt 896) 304 in expounding the principles of law on the essence of no case submission and the meaning of prosecution making out a prima facie case. Counsel stated that the essential ingredients of the offences with which the Appellant was charged were (i) that the Appellant accepted cash payment above N5 Million; (ii) that the Appellant did not receive the cash through a financial institution; and (iii) that the Appellant is a natural person and he referred to the cases of Atoyebi Vs Federal Republic of Nigeria (2017) LPELR 43831(SC) and Ikuforiji Vs FRN (2018) LPELR 43884(SC).

Counsel stated that there was evidence in the testimonies of the prosecution witnesses that the Appellant received the sums of N950 Million and

N10 Million in cash and that the Appellant also admitted in his extra judicial statement tendered in evidence that he collected the said sums of N950 Million and N10 Million in cash and that the extra judicial statement of an accused defendant forms part of the case of the prosecution and he referred to the case of Simon Vs State (2013) LPELR 21953(CA). Counsel stated that the admitted cash sums of N950 Million and N10 Million were over the threshold sum of N5 Million provided for in the Money Laundering (Prohibition) Act. Counsel stated that the prosecution witnesses also testified that the transaction regarding the collection of the N950 Million was strange and the money did not pass through normal operations of a Financial Institution, Fidelity Bank Plc, and that the Appellant admitted in his extra judicial statement that he did not collect the N10 Million through a Financial Institution. Counsel stated that it was not in contest that the Appellant was a natural person and thus within the threshold of N5 Million provided in the Act.

Counsel stated that the Respondent led evidence linking the Appellant to the ingredients of the offences charged and

thus made out a prima facie case warranting the Appellant entering a defence. Counsel referred to the cases of Kalu Vs FRN (2014) 1 NWLR (Pt 1389) 479 and Daudu Vs FRN (2018) 10 NWLR (Pt 1626) 169 on the history of money laundering prohibition offences and on what constitutes money laundering. Counsel urged the Court to resolve the issue for determination in favour of the Respondent and prayed that the Court finds no merit in the appeal and to accordingly dismiss same and affirm the decision in the Ruling of the lower Court.

This appeal is against the refusal of the lower Court to accede to the no case submission canvassed by the Appellant at the close of the case of the Respondent.

at all against the defendant, on behalf of whom the submission of no prima facie case has been made, linking him in any way with the commission of the offence with which he has been charged, which would necessitate his being called upon for his defence. Secondly, that whatever evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable court can be called upon to act on it as establishing the criminal guilt in the defendant concerned. Apart from these two situations, a tribunal or court should not in, general, be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it – Suberu Vs State (2010) 1 NWLR (Pt 1176) 494, Fagoriola Vs Federal Republic of Nigeria (2013) 17 NWLR (Pt 1383) 322.
The essence of a submission of a no case to answer lies in the contention that the evidence of the prosecution called in the discharge of the burden of proof placed on it by law has failed to establish a prima facie case or establish the ingredients of the offence against the defendant, to make it imperative for

the Court to call upon the defendant to defend himself or answer to the charge or open his defence or enter his defence. Where a no case submission is made, what is to be considered by the Court is not whether the evidence produced by the prosecution against the defendant is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring, at least, some explanation from the defendant as regard his conduct or otherwise.
A prima facie case is made out where the evidence adduced by the prosecution is such that, if un-contradicted, would be sufficient to prove the case against the defendant. At the stage of a no case submission at the close of the prosecution’s case, what is required of a trial Court is not to evaluate or give weight to the evidence led by the prosecution at that stage or to write a lengthy judgment. The Court should not consider the credibility of the prosecution witnesses and it is premature for the Court to believe or disbelieve the witnesses since defence is yet to present its witnesses. A ruling on a no case submission should be as brief as possible and not in any way go into evaluation of

the evidence led – Tongo Vs Commissioner of Police (2007) 12 NWLR (Pt 1049) 525, Ekwunugo Vs Federal Republic of Nigeria (2008) 15 NWLR (Pt 1111) 630, Fagoriola Vs Federal Republic of Nigeria (2013) 17 NWLR (Pt 1383) 322, Uzoagba Vs Commissioner of Police (2014) 5 NWLR (Pt 1401) 441, Egharevba Vs Federal Republic of Nigeria (2016) 10 NWLR (Pt 1521) 431.
It is not the business of the Court to evaluate the case put forward by an accused person in his extra judicial statement at the stage of a no case submission and neither is it the business of the trial Court to evaluate the evidence of prosecution witnesses in favour of the case of an accused defendant at that stage. A no case submission means that there is no evidence on which the Court could convict even if the Court believes the evidence given – Akpan Vs State (1986) 3 NWLR (Pt 27) 225, Ohuka Vs State (No 2) (1988) 4 NWLR (Pt 86) 36, Fagoriola Vs Federal Republic of Nigeria (2013) 17 NWLR (Pt 1383) 322. In Agbo Vs State (2013) 11 NWLR (Pt 1365) 377, the Supreme Court reiterated what a trial Court should concern itself with in considering a no case submission. Fabiyi, JSC at page 394

B-G stated thus:
“It is now basic that in considering a submission of no case to answer it is not necessary at that stage to determine whether the evidence is sufficient to justify a conviction. The Court only has to be satisfied that there is a prima facie case which requires at least some explanation from the accused person.
As inferred by Abbot, FJ in Ajidagba v IGP…, prima facie case is not the same as proof which comes later when the Court may find whether the accused is guilty or not. 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. On his own part, Nnamani, JSC (of blessed memory) in Duru v Nwosu …maintained that prima facie case means that ‘there is ground for proceeding’. In other words, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it (prima facie) ‘suggests that the evidence produced so far indicates that there is something worth looking at’.
… 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. The Court is only called upon to take note and rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence charged. But if there is legally admissible evidence, however slight, the matter should proceed as there is something to look at.”
This is a re-affirmation of the statement of law that however slight the evidence linking an accused person with the commission of the offence charged might be, the case ought to proceed for the accused to explain his own side of the matter –Ibeziako Vs Commissioner of Police (1963) 1 SCNLR 99, Daboh Vs The State (1977) 5 SC 197 at 209, Adeyemi Vs The State (1991) 6 NWLR (Pt 195) 1, Igabele Vs State (2004) 15 NWLR (Pt 896) 314, Aituma Vs State (2007) 5 NWLR (Pt 1028) 466, Fagoriola Vs Federal Republic of Nigeria (2013) 17 NWLR (Pt 1383) 322, Uzoagba Vs Commissioner of Police (2014) 5 NWLR (Pt 1401) 441, Commissioner of Police Vs Amuta (2017) 4 NWLR (Pt 1556) 379.

Thus, the question, in the instant case, is whether there was any evidence, however slight, linking

the Appellant with the commission of the offences with which he was charged.
The Appellant was charged under Section 1(a) of the Money Laundering (Prohibition) 2011 (as amended). The provision reads that no person shall, except in a transaction through a Financial Institution, make or accept cash payment of a sum exceeding N5 Million or its equivalent. Reading through this provision, it is correct, as stated by Counsel to the Respondent, that the ingredients of the offence created therein are (i) that the accused defendant is a natural person; (ii) that the accused defendant received cash sums in excess of N5 Million; and (iii) that the transaction leading to the accused defendant receiving the cash sum in excess of N5 Million did not pass through a Financial Institution – Atoyebi Vs Federal Republic of Nigeria (2018) 5 NWLR (Pt 1612) 350, Ikuforiji Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1614) 142. Contrary to the assertion of Counsel to the Appellant the identity of the person who gave or instructed the giving of the cash sum to an accused defendant and the purpose for which the cash sum was given do not form part of the

ingredients of the offence; they are surpluses.
It was not in dispute in this case that the Appellant is a natural person. Thus, there was no contest on the first ingredient of the offences charged. The first prosecution witness testified that he was detailed to conduct the investigation into certain allegations and in the course of which he discovered that the Appellant and the second co-accused defendant collected the sum of N950 Million in cash from Fidelity Bank Plc on the 26th of March, 2015 and that the money was transported to the house of the first co-accused defendant. He gave evidence that he also discovered that the money was shared on the 27th of March, 2015 and the Appellant was given a cash sum of N10 Million. Under cross examination, the witness testified that he was not present when the sharing of the money was done and he did not witness the Appellant being given the sum of N10 Million, but he stated that he became aware of the sharing and of the amount received by the Appellant in the course of his interrogation, during the investigation, of the people who distributed the money.

Counsel to the Appellant contended that because the

first prosecution witness stated that he was not present when the sharing of the money was done and he did not witness the Appellant being given the sum of N10 Million, his evidence of the facts constituted hearsay evidence and rendered his evidence of such a nature that reasonable Tribunal cannot be expected to rely on it. Counsel obviously forgot the principle that postulates that the evidence of an Investigating Police Officer as to what he saw, heard and/or discovered during the course of his investigation is not hearsay and it is admissible evidence –Arogundade Vs State (2009) 6 NWLR (Pt 1136) 165, Anyasodor Vs State (2018) 8 NWLR Pt 1620) 107, Brilla Energy Ltd Vs Federal Republic of Nigeria (2018) 16 NWLR (Pt 1645) 305, Rowaye Vs Federal Republic of Nigeria (2018) 18 NWLR (Pt 1650) 21.
Additionally, the witness tendered the extra judicial statement of the Appellant as Exhibit C, without objection. In the statement, the Appellant admitted collecting and signing for the sum of N950 Million in cash from Fidelity Bank Plc, in the company of the second co-accused defendant, and he also admitted that when the money was shared at a private

residence, he received N10 Million in cash. The law is settled that an extra judicial statement by an accused person made in accordance with the relevant rules and the law and admitted in evidence without objection from the accused or defence, is good evidence which can be used, evaluated and relied on by a trial Court – Ikemson Vs The State (1989) 3 NWLR (Pt 110) 455, Gbadamosi Vs State (1992) 11-12 SCNJ 268, Amala Vs State (2004) 11 MJSC 147, Atoyebi Vs Federal Republic of Nigeria supra, Ikuforiji Vs Federal Republic of Nigeria supra. It is obvious that the cash sums of N950 Million and N10 Million received by the Appellant were above the threshold sum of N5 Million. There is thus evidence in the case made out by the Respondent in support of the second ingredient of the offences charged.
This takes us to the third ingredient of the offences with which the Appellant was charged; that the transaction of the accused defendant receiving the cash sum in excess of N5 Million did not pass through a Financial Institution. The second prosecution witness, the Regional Operation Manager of Fidelity Bank Plc at the times material to the offences, gave

evidence of how they received instructions and approval from the head office of the Bank to release the cash sum of N950 Million to the Appellant and the second co-accused defendant and that the recipients were only required to sign a document, with their ID cards attached, on receipt of the funds. He testified that the transaction was not a normal transaction as the recipients did not present any instrument for them to debit their account. Counsel to the Appellant pointed to some of the answers given by the witness under cross examination and sought to impugn the credibility of the witness. It is trite law that at the stage of no case submission, the Court should not consider the credibility of the prosecution witnesses and it is premature for the Court to believe or disbelieve the witnesses – Oday Vs State (2019) 2 NWLR (Pt 1655) 97, Amah Vs Federal Republic of Nigeria (2019) 6 NWLR (Pt 1667) 160.
The fourth prosecution witness, the Branch Manager at the time material to the offences, also gave evidence of how they received instructions and approval from the head office of the Bank to release the cash sum of N950 Million to the Appellant and the

second coaccused defendant. He testified that there was actually no documentation for the transaction and that they only collected means of identification and a signed acknowledgment of receipt of the money from the recipients and that, in his over seventeen years experience as a banker, he had never seen any such transaction. He stated that there was no account upon which the transaction was made and that the transaction was recordless, i.e. that there was no record of the transaction in the Bank. He stated further under cross examination that the transaction was extraordinary service and not regular banking service.

The evidence led by the Respondent was that the cash sum of N10 Million received by the Appellant took place in a private residence, and it was not done through a Financial Institution. With respect to the cash sum of N950 Million, Counsel to the Appellant contended that since the cash sum was received from Fidelity Bank Plc, a recognized financial institution, there was no prima facie evidence to prove the third ingredient of the offence. Counsel to the Respondent contended otherwise and stated that though the cash sum was received from

Fidelity Bank Plc, the transaction did not pass through normal banking operations of the Bank and was not reflected in any instrument of or account with or in the records of the Bank. The word used in Section 1(a) of the Money Laundering (Prohibition) 2011 (as amended) that created the offence is “through” not “from”. The question of whether or not the two words are synonymous or have different meanings as it relates to the offence created by the section is not one to be resolved on a no case submission. Suffice to say that the Respondent led evidence to show that the transaction leading to the payment of the cash sum of N950 Million to the Appellant was strange, unusual, irregular and not reflected in the records of the Bank.
It is apparent from the oral and documentary evidence led by the Respondent that there exists on the record legally admissible and credible evidence on the three ingredients of the offences charged and which links the Appellant with the two counts of offences against him under Section 1(a) of the Money Laundering (Prohibition) Act 2011 (as amended). There is, thus, a need for the Appellant to offer

explanations thereon in his defence. The first issue for determination is resolved in favour of the Respondent.

Issue Two
Whether having regards to the records of appeal, the learned trial Judge was right when he relied on the amended charge in dismissing the Appellant’s no case submission
In arguing this issue for determination in the Appellant’s brief of arguments, Counsel to the Appellant stated that the amended charge was never read to the Appellant nor was his plea taken thereto and that the lower Court referred to the amended charge in the Ruling refusing the no case submission. Counsel stated that the law is that an amended charge must be read to an accused person and he should be made to take a plea when he appears to have understood same and he referred to the provision of Section 164 of the Criminal Procedure Code and the cases of Osareren Vs FRN (2018) 10 NWLR (Pt 1627) 241, Bude Vs The State (2016) 12 NWLR (Pt 1525) 154, Bassey Vs State (2012) All FWLR (Pt 633) 1831. Counsel stated that since the Ruling of the lower Court was based on an amended charge that was not read to the Appellant and in respect of which his plea

was not taken, the Ruling was a nullity and he referred to the cases of Yusuf Vs The State (2011) 18 NWLR (Pt 1279) 853 and Abdullahi Vs The State (2012) LPELR 20852(CA). Counsel urged the Court to resolve the issue for determination in favour of the Appellant and to allow the appeal.

In his response, Counsel to the Respondent stated that the amended charge, though filed, was yet to be read in open Court and neither of the parties predicated their arguments on the no case submission on the amended charge. Counsel stated that the references made to the amended charge by the Counsel to the Appellant in this appeal was inapposite as no mention of it was made before the lower Court and that as such the submissions of Counsel to the Appellant thereon should be discountenanced.

It is correct that in the Ruling appealed against the lower Court made reference to an amended charge filed on the 10th of April, 2019. However, in the course of arguing the appeal, Counsel to the Appellant, in response to questions from the Court, conceded that the reference made by the lower Court to an amended charge in the Ruling, and on which their second issue for

determination was erected, was an error and that though the amended charged had been filed, it had not been laid before the lower Court, had not been read out and Appellant was not asked to plead to it. The parties were agreed that the Appellant, along with his co-accused persons, were tried on the original charge and that the no case submission was made and considered on the basis of the original charge. Now, it is elementary that it is not every error that will lead to a reversal of a judgment or Ruling on appeal – A.G. Leventis (Nig) Plc Vs Chief Christian Akpu (2007) 6 SCNJ 242, Oguntayo Vs Adelaja & Others (2009) 6-7 SC (Pt III) 91 and Chief Ikedim Ohakim & Anor Vs Chief Martin Agbaso & 4Ors (2010) 6-7 SC 85. In Olonade Vs Sowemimo (2014) 14 NWLR (Pt 1428) 472, the Supreme Court made the point thus:
“It is a trite principle that it is not every error of law that is committed by a trial or appellate Court that justifies the reversal of the particular Court’s judgment on appeal. For an appellant to secure the reversal of the judgment he appeals against, beyond establishing the error he hinges his complaint upon, he must

go the extra mile of establishing that the error complained of and established has substantially affected the result of the decision and/or occasioned a miscarriage of justice. Thus, where inspite of the error made out by the appellant the decision appealed against would not be any different, the appeal would fail. In such an instance, the judgment appealed against would not be disturbed.”
In the instant case, the two counts of offence against the Appellant are still the same, and did not change, in the amended charge referred to by the lower Court in the Ruling. Counsel to the Appellant, having conceded that the reference made to the amended charge by the lower Court was indeed an error and having not shown or canvassed any miscarriage of justice suffered by the Appellant by reason of the error, there is no cause for this Court to interfere with the Ruling of the lower Court on the basis of the error.

The second issue for determination is resolved against the Appellant.

In conclusion, the Court finds that the decision of the lower Court overruling the no case submission was on firm ground and cannot be impugned. This appeal is, with respect

to the Counsel to the Appellant, is totally devoid of merit and it is hereby dismissed. The decision contained in the Ruling of the Federal High Court sitting in Kano in Suit No FHC/K/CR/56/2018 delivered by Honorable Justice A. Lewis-Allagoa on the 29th of September, 2019 overruling the no case submission of the Appellant is affirmed. The Appellant is directed to go and enter his defence in the lower Court. These shall be the orders of this Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading Judgment of my learned brother Abiru JCA just delivered and I am in agreement with his reasoning and conclusion. I also dismiss the appeal.

AMINA AUDI WAMBAI, J.C.A.: I read before now the lead judgment delivered by my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I agree with his reasoning and conclusion that there is no merit in this appeal.

The Appellant along with Ibrahim Shekarau and Aminu Bashir

Wali as the 3rd, 1st & 2nd defendants respectively were arraigned before the Federal High Court for offences under the Money Laundering Act, 2011 (as amended). There were six counts. Appellant was indicted on counts 4 & 5.
They read:
Count 4
That you, Aminu Bashir Wali and Mansur Ahmed, on or about 26th March, 2015, at Kano within the Kano Judicial Division of the High Court, receive cash payment of the sum of Nine Hundred and Fifty Million Naira (950,000,000.00) from the People’s Democratic Party without transacting through a Financial Institution, and thereby committed an offence contrary to Section 1 (a) of the Money Laundering (Prohibition) Act, 2011 (as amended) and punishable under Section 16 (2) (b) of the same Act.
Count 5
That you Mansur Ahmed, on or about 27th March, 2015 at Kano within the Kano Judicial Division of the High Court, receive cash payment of Ten Million Naira (N10,000,000.00) from the People’s Democratic Party without transacting or receiving same through a Financial Institution, and thereby committed an offence contrary to Section 1 (a) of the Money Laundering (Prohibition) Act, 2011, (as amended and punishable

under Section 16 (2) of the same Act.

He pleaded not guilty. Prosecution called 4 witnesses and tendered some Exhibits. At the close of the prosecution’s case a “No case submission” was made on behalf of the Appellant. The Appellant’s dissatisfaction with the refusal and dismissal of the “No case submission gave rise to this appeal..
Now, the principles when a no case submission can be made and sustained or refused have long been set out for the guidance of trial Courts. When in a criminal trial, at the close of the case for the prosecution, a submission of no prima facie case to answer is made on behalf of the accused person, it postulates one or two things or both of them at once: (a) that there has been throughout the trial no legally admissible evidence linking the accused in anyway with the commission of the offence with which he had been charged which would necessitate his being called upon for his defence; (b) that whatever evidence there was which might have linked the accused person with the offence has been discredited that no reasonable Court can be called upon to act on it as establishing criminal guilt in the accused person concerned.

These are the conditions set out in the locus classicus of IBEZIAKO V C.O.P (SUPRA), see also ADAMA VS. STATE (2018) 3 NWLR (PT. 1605) 94 @ 135, FAGORIOLA VS. FRN (SUPRA).
The essence of a submission of a no case to answer lies in the contention that the evidence of the prosecution called in the discharge of the burden of proof placed on them by law has failed to establish a prima facie case. It simply means that the evidence on record is such that even if it is believed by the Court, it is not sufficient to ground the conviction of the accused/defendant.
These principles have been codified and expanded upon by Section 303 (3) of the Administration of Criminal Justice Act, 2015 which has added in paragraph (d) “any other ground on which the Court may find that a prima facie case has not been made against the defendant”.
When a submission of no prima facie case is made on behalf of an accused person, the trial Court is not thereby called upon at that stage to express any opinion on the evidence before it as the credibility of witnesses in not in issue and does not arise. That comes at a later stage, at the close of trial, when the evidence on

both sides are taken and being evaluated.
The Court is only called upon to take note and to rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. See AITUMA VS. STATE (2007) 5 NWLR (PT. 1028) 466; IGABELE VS. STATE (2004) 15 NWLR (PT. 896) 314; AKWA VS. C.O.P. (2003) 4 NWLR (PT. 811) 461; AITUMA V. STATE (2006) 10 NWLR (PT. 989) 452. TONGO VS. C.O.P (2007) 12 NWLR (PT 1049)525. Thus prima facie case is not the same as proof beyond reasonable doubt which comes later when the Court has to find whether the accused is guilty or not guilty. A prima facie case is said to exist when there is evidence sufficient enough to support the allegation made against the accused person. It means that a presumption of guilt is made out against the accused, and as soon as a prima facie case is made out against the accused, he should rebut same on fact in his defence. See IGHO vs. STATE (1978) 3 SC P. 87. UBANATU VS. COP (2000) 3 NWLR (PT.643) 115 at 129. IGABELE VS. STATE (SUPRA). In the case of DURU VS. NWOSU (1989) NWLR (PT. 113) 24 at 43 Nnamani JSC

(as he then was of blessed memory) stated thus: –
“It seems to me the simplest definition is that which says that there is ground for proceeding. In other words, that something has been produced to make it worthwhile to continue the proceeding. On the face of it, suggests that the evidence produced so far indicates that there is something worth looking at”.
Thus, where the evidence placed before the Court is such that if uncontradicted and if believed will be sufficient to prove the case against the accused, a prima facie case is said to be made out. See AJIDAGBA V. I.G.P. (1958) SCNLR 60.

The Appellant is alleged in both counts 4 & 5 to have contravened Section 1 (a) of the Money Laundering (Prohibition) Act, 2011.
The constituents of the offence are: (1) that the defendant/Appellant is a natural person; (2) that he made or received (accepted) a cash payment in a transaction; (3) that the transaction is in excess of N5,000,000 or its equivalent; and (4) the transaction was not made through a Financial Institution. In other words, as judicially interpreted by the apex Court in OYEBODE ATOYEBI vs. FRN (2017) LPELR — 43831

(SC), the ingredients which the prosecution must prove are:
(i) That the defendant/Appellant is a natural person;
(ii) that he received cash sum in excess of N5 million; and
(iii) that the transaction did not pass through a Financial Institution.
With regards to the 1st ingredient, it is incontestable that the Appellant is a natural person. On the 2nd element, there is evidence on record by PW1 that in the course of his investigation he discovered that the Appellant together with the 2nd defendant, Aminu Wali collected the sum of N950 Million Naira cash from Fidelity Bank Plc and that the money was shared. Appellant was given N10 Million Naira. The Appellant in his statement, Exhibit C, admitted collecting the said sum of N950 Million cash from the Bank and that he signed for the collection. He also admitted collecting N10 Million Naira cash.
On the 3rd ingredient, evidence was also led that the N10 Million was collected from a private residence. In respect of the N950 Million, the evidence of PW4 is that the transaction in which the sum of N950 Million was collected as a recordless transaction is abnormal.

These pieces of evidence have linked the Appellant to the offences in counts 4 & 5 requiring him to offer some explanation to rebut the evidence against him. On the face of it, the evidence produced before the Court suggests that there is something worth looking into and an explanation required from the Appellant. Whether the said sum of N950m released to the Appellant and the 2nd defendant by PW4 in his official capacity as the Branch Manager of Fidelity Bank Kano Branch “passed through” a Financial Institution or not is a question for determination during full trial. It suffices to say that the Appellant has been linked to the offence and an explanation is required from him to rebut the evidence and state his own side of the case. In other words, a prima facie case was made out against the Appellant requiring him to be called upon to enter his defence. The lower Court was thus right in overruling the “No case submission” in respect of Counts 4 & 5 against the Appellant.

It is for this reason and the fuller reasons succinctly articulated in the lead judgment which I adopt as mine, that I too dismiss this appeal as lacking in merit. I affirm the Ruling of the lower Court

delivered on 23/09/2019 in suit No. FHC/K/CR/56C/2018 by Hon. Justice A. Lewis Allagoa overruling and dismissing the “No case submission”.

Appearances:

…For Appellant(s)

…For Respondent(s)