ALIYU v. FRN & ORS
(2022)LCN/16189(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, January 18, 2022
CA/A/CR/593/2021
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Bature Isah GafaiJ ustice of the Court of Appeal
Between
ABUBAKAR ALIYU APPELANT(S)
And
1. FEDERAL REPUBLIC OF NIGERIA 2. MURTALA H. NYAKO 3. ABDULAZIZ NYAKO 4. ZULKIFIL ABBA 5. BLUE OPAL LIMITED 6. SEBORE FARMS & EXTENSION LIMITED 7. PAGODA FORTUNES LIMITED 8. TOWER ASSETS MANAGEMENT LIMITED 9. CRUST ENERGY LIMITED RESPONDENT(S)
RATIO
DEFINITION OF A “NO CASE SUBMISSION”
Case law is replete with consistent definitions of No Case Submission which all boil down to the postulate that if at the end of the Prosecution’s case, there is no evidence on which even if the Court believes it, it could convict, the accused is at that stage entitled by law to apply for discharge on the ground that no prima facie case has been established by the Prosecution against him. This is done through a practice procedure known as No Case Submission. The position has been succinctly restated by the Supreme Court in I. G. P. vs. Sonoma (2021) NWLR (Pt. 1791), 489 at 511 per Odili, JSC thus:
“It needs be reiterated that in a criminal matter, a successful submission no case to answer means no prima facie has been made out against an accused person because the prosecution has failed to prove the essential ingredients of the offence charged against the accused person. In other words, there is no admissible evidence linking the accused person in anyway with the commission of the offence with which he had been charged with. Section 286 Criminal Procedure Act, Cap. C41, Laws of the Federation, 2004 states as follows:
“If at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence the Court shall, as to that particular charge discharge him. Such a discharge is tantamount to an acquittal for which a plea of autrefois prosecution.”
Also, in the case of Sunday Chijioke Agbo & Ors v. The State (2010) LPELR-4989 (CA) the Court of Appeal held thus:
“The meaning of a no case submission is that there is no case for an accused person to answer is that there is no evidence on which even if the Court believes it, it could convict the question whether the Court does believe the evidence does not arise nor the credibility of the witness becomes an issue at this stage.” See also Tongo v. C.O.P (2007) 12 NWLR (Pt. 1049) 525, State v. Asunmo & Ors (2017) LPELR-42606 (CA).” PER GAFAI, J.C.A.
BASIC GUIDING PRINCIPLES UPON WHICH A NO CASE SUBMISSION CAN BE MADE
The Administration of Criminal Justice Act, 2015 made provisions at Sections 302 and 303 upon which a No Case Submission can be made. However, there are certain basic guiding principles that a lower Court should have at the back of its mind when ruling on a no case submission made by a Defendant.
Firstly, in every case where a no case submission is made, the main issue is whether the Prosecution has established a prima facie case against the Defendant. This is the issue which the trial Court is called upon to consider in a no case submission. See CHRISTOPHER O. IGWE V. THE STATE (2021) LPELR- 55336 (SC) and IKOMI V. THE STATE (1986)3 NWLR (PT. 28) 340.
Secondly, it is necessary for the trial Court in a no case submission to answer to note that at this stage, it is only the Prosecution’s evidence in support of its case that has been presented, before the opening of the case of the Defence, which is made at an interlocutory stage and thus, the trial Court would not be in a proper position to determine the substantive issue of the guilt of the Defendant. See COP V. UDOSEN & ANOR (2015) LPELR-40602 (CA).
Thirdly, in a no case to answer submission, the trial Court is expected to consider the evidence adduced by the Prosecution and the ingredients of the offence(s) charged to determine whether a prima facie case has been established against the Defendant and it is the same evidence and ingredients which the Court is expected to consider (along with the defence, if any) at the end of the trial to determine whether the offence charged has been proved beyond reasonable doubt against the Defendant. There is therefore a real likelihood that if care is not taken, pronouncements will be made and conclusions reached by the Court on the evidence adduced by the Prosecution which would have the effect of predetermining substantive issues at the interlocutory stage of ruling on a no case submission. Thus, where the ruling on a no case submission would not put an end to a criminal trial, it is advisable that the Court should not say too much or comment on the evidence so far led before it, so as not to make pronouncements and conclusions that would prejudice the issues in the substantive trial. This position has been strongly supported by this Court and the Supreme Court in a plethora of decided cases. The Supreme Court Per Ademola JSC (as he then was) held as follows in the case of BELLO V. STATE (1966) LPELR-25291 (SC):
“Whilst it is not the aim of this Court to discourage a Judge from discussing matters of interest in his judgment, we would like to warn against any ruling of inordinate length in a submission of no case to answer, as too much might be said, as was done in this case, which at the end of the case might fetter the Judge’s discretion. On the Ruling made by the learned Judge in this case, we can appreciate his manifold difficulties later in discharging Lasekan, the 2nd Accused It is wiser to be brief and make no observations on the facts. See R V. EKANEM, 13 WACA 108 AT 109.” PER SENCHI, J.C.A.
BATURE ISAH GAFAI, J.C.A. (Delivering the Leading Judgment): This appeal questions the correctness of the decision of the Federal High Court Abuja in charge no. FHC/ABJ/CR/293/2015 delivered on the 19th of July, 2021 coram Abang, J., by which the Appellant’s No Case Submission was dismissed on grounds which dissatisfied and aggrieved the Appellant. In consequence, the Appellant, sequel to the leave granted him by the trial Court on the 2nd of August, 2021, lodged this appeal vide his Notice of Appeal dated the 3rd but filed on the 4th of August, 2021 complaining against the decision on four Grounds. See pages 2031 and 2046 of the Record of Appeal.
To fully understand the Appellant’s complaints on these grounds, I think it is important to first understand the decision upon which they are rooted and derived.
As hinted earlier, the gist of this appeal is on the trial Court’s decision on the Appellant’s No Case Submission. It all originated from the Prosecution’s charge filed much earlier on the 7th of July, 2015 in which it alleged several offences under the Money Laundering (Prohibition) Act 2011 as amended and the Advance Fee Fraud and Other Related Offences Act 2006 against the Appellant as the 4th accused along with eight others listed as the 1st to the 3rd and 5th to the 9th accused persons.
At the trial, the 1st Respondent (as the Prosecution) called twenty one witnesses and tendered several documents in evidence. Satisfied with its case in respect of each of the Accused person, the Prosecution closed same.
Upon their strong conviction that the Prosecution had failed to establish a prima facie case in respect of each of the thirty seven counts of the charge by which they were being prosecuted, the accused persons thus filed separate No Case Submissions seeking for discharge and acquittal accordingly. The Prosecution joined issues on same vide a composite Written Address seeking for the dismissal of the No Case Submissions. Both sides argued accordingly before the trial Court.
In its ruling, the trial Court disagreed with the accused persons, dismissed their No Case Submissions and ordered them to present their defence if any. Instead however, they lodged separate appeals in this Court against the decision of the trial Court.
In this appeal however, it is the 4th accused in the trial namely Abubakar Aliyu that is the Appellant. It is hoped that this short preface will accord a better understanding of the Appellant’s four Grounds of Appeal reproduced hereunder thus:
“GROUND OF APPEAL NO.1
The learned trial Judge erred in law when he held that:
“It is my humble but firm view that the Prosecution in the evidence of 21 witnesses both oral and documentary have established a strong prima facie case against the Defendants and they are required to enter their defence immediately.”
GROUND OF APPEAL NO. 2
The learned trial Judge erred in law when he held:
“The no case submission filed by the 4th & 8th Defendants dated 5/2/2020 lacks merit, it is accordingly dismissed.”
GROUND OF APPEAL NO.3
The learned trial Judge erred in law when in holding as he did, that is, dismissing the no case submission of the Defendants, he placed reliance on the extra-judicial statements of MOHAMMED MA’AJI IRO and ABDULMALIK DALHATU, both deceased, without giving consideration to the provisions of Section 29(4) of the Evidence Act, and the decision of the Supreme Court in AJAEGBO V. STATE (2018) 11 NWLR (pt. 1631) 484 at 516 B-G to the effect that the statements are only relevant if the Defendant adopted them.
GROUND OF APPEAL NO. 4
The learned trial Judge erred in law when in reaching a decision that the Prosecution had “established a strong prima facie case against the Defendants” and that “the no case submission filed by the 4th and 8th Defendants dated 5/2/2020 lacks merit” he failed to exercise his discretion judicially and judiciously.”
The respective particulars enumerated under each of the Grounds are noted. See pages 2046 to 2048 of the Record (Vol. 3).
The Record of Appeal contained in Volumes 1 to 3 was transmitted to this Court on the 31st of August, 2021 while the Appellant’s Brief of Argument settled by Hauwa Isiyaku Esq, was filed on the 8th of September, 2021. The 1st Respondent’s Brief of Argument settled by Oluwaleke Atolagbe Esq., was filed on the 13th but deemed properly filed and served on the following day of the 21st of October, 2021.
Distilled from his Grounds of Appeal, the Appellant has presented two issues for determination in this appeal thus:
“1. Whether the trial Court was right in dismissing the Appellant’s no case submission on the ground that it lacked merit and holding that a strong prima facie case sufficient enough to call upon the 4th Defendant to enter his Defence was made by the Prosecution (Distilled from Grounds of Appeal Nos. 1, 2 and 3).
2. Whether, in exercising its discretion judicially and judiciously, the trial Court was right in finding as it did without evaluating evidence or setting-out how it arrived at its conclusion (Distilled from Ground Appeal No.4).”
The lone issue formulated for the 1st Respondent appears generally the same with the Appellant’s first issue because the 1st Respondent too is seeking a determination solely on:
“Whether the learned trial Judge was not right in holding that a strong prima facie case has been made out against the Appellant to call upon him to enter his defence.”
I note also the Appellant’s rely brief of argument filed later on the 20th of October, 2021 containing arguments on the same specific main Issue of the parties.
It is unnecessary to determine both similar issues separately because the issues and legal principles identified and argued by the parties under both issues are the same although naturally presented on parallel perspectives. Indeed, even the Appellant’s second issue too can be subsumed in and determined along with the main issue because the few submissions canvassed thereunder have already been more elaborately presented under his first issue and is therefore at best an emphasis or summary only of the first Issue. Be that as it may, the combined treatment of the three issues shall be without forsaking the worth of any.
As argued under all the three Issues of the parties including in Appellant’s reply brief, the entire appeal as explained by its grounds is on whether the trial Court is right in its decision dismissing the Appellant’ No Case Submission. Both the law and judicial decisions on No Case Submission are consistently settled; which explains the commonality of the submissions on same by both learned counsel at paragraphs 4.02 to 4.0.3 of the Appellant’s Brief and 4.01 to 4.04 of the 1st Respondent’s. Thence however, their respective arguments proceeded on different lines that are defined by their considered, divergent views on the reasonings of the learned trial Judge which culminated into his ultimate decision on the No Case Submission. This Court has examined in equal degree the reasonings of the trial Judge which correctly or erroneously informed the decision, which I find to be partly at pages 2041 to 2043 of the Record (Vol. 3) as follows:
“Applying the principle of law stated above to the facts of this case, I have calmly, carefully, painstakingly, considered the 37 count charge filed 7/7/2015, and thoroughly scrutinized the evidence of 21 witnesses called by the Prosecution both in chief and under cross-examination, examined also all documentary evidence especially the extrajudicial statements of the 1st to 4th Defendants also considered extra-judicial statements of Mohammed Ma’aji Iro Abdulmalik Dalhatu that were admitted in evidence in a ruling dated 27/11/2018 upon the objections raised by the Defendants on their admissibility. There is no evidence before me that the Defendants have appealed the ruling. The findings of Court on this issue subsists.
I have also considered the written and oral arguments of Chief Kanu Agabi (SAN) for the 1st, 2nd, 6th and 7th Defendants, the Defendant, oral and written arguments of Isiyaku Ibrahim (SAN) for the 4th and 8th Defendants, oral and written argument of O. A. Dada for the 9th Defendant, oral and written argument of O. Olujinmi for the 5th Defendant, oral and written argument of O. A. Atolagbe for the prosecution and all the statutory and judicial authorities cited by learned senior Counsel for the Defendants and the Prosecution.
It is my humble but firm view that the Prosecution in the evidence of 21 witnesses both oral and documentary have established a strong prima facie case against the Defendants and they are required to enter their defence immediately.
Therefore the no case submissions filed by the 1st, 2nd, 6th & 7th Defendants dated 5/2/2020 lacks merit, it is accordingly dismissed. The no case submission filed by the 3rd Defendant dated 6/2/2020 lacks merit is accordingly dismissed. The no case submission filed by the 4th & 8th Defendants dated 5/2/2020 lacks merit, it is accordingly dismissed.
The 5th Defendant’s no case submission dated 14/2/2020 lacks merit, it is accordingly dismissed.
The 9th Defendant’s no case submission dated 6/2/2020 lacks merit, it is accordingly dismissed.” It should be understood from the onset that a plea of No Case Submission is not a defence as is generally erroneously conceived. It is a law long settled in our legal jurisprudence. This distinction is often lost particularly in the evocation of the plea in the line of a defence sometimes by both the accused and the Prosecution. This confusion is demonstrated by inordinate appraisal, evaluation and ascription of probative value to each or most of the evidences placed before a Court. Indeed, unless there appears sufficient reasons to uphold a No Case Submission, the Court itself should have no liberty to indulge in deep evaluation of the evidences at the stage of a No Case submission. Sadly however, this costly confusion is steadily becoming the benchmark or standard in several pleas of No Case Submission.
Case law is replete with consistent definitions of No Case Submission which all boil down to the postulate that if at the end of the Prosecution’s case, there is no evidence on which even if the Court believes it, it could convict, the accused is at that stage entitled by law to apply for discharge on the ground that no prima facie case has been established by the Prosecution against him. This is done through a practice procedure known as No Case Submission. The position has been succinctly restated by the Supreme Court in I. G. P. vs. Sonoma (2021) NWLR (Pt. 1791), 489 at 511 per Odili, JSC thus:
“It needs be reiterated that in a criminal matter, a successful submission no case to answer means no prima facie has been made out against an accused person because the prosecution has failed to prove the essential ingredients of the offence charged against the accused person. In other words, there is no admissible evidence linking the accused person in anyway with the commission of the offence with which he had been charged with. Section 286 Criminal Procedure Act, Cap. C41, Laws of the Federation, 2004 states as follows:
“If at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence the Court shall, as to that particular charge discharge him. Such a discharge is tantamount to an acquittal for which a plea of autrefois prosecution.”
Also, in the case of Sunday Chijioke Agbo & Ors v. The State (2010) LPELR-4989 (CA) the Court of Appeal held thus:
“The meaning of a no case submission is that there is no case for an accused person to answer is that there is no evidence on which even if the Court believes it, it could convict the question whether the Court does believe the evidence does not arise nor the credibility of the witness becomes an issue at this stage.” See also Tongo v. C.O.P (2007) 12 NWLR (Pt. 1049) 525, State v. Asunmo & Ors (2017) LPELR-42606 (CA).”
Contributing to the judgment, Abba Aji, JSC, held also at page 519 paras F- D as follows:
“Besides, where a no case submission is upheld, it means that no prima facie case has been made against the accused person. A no-case to answer can 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.
See Ibeziako v. Commissioner of Police (1963) 1 All NLR 61; (1963) 1 SCNLR 99; Atano v. Attorney-General, Bendel State (1988) 2 NWLR (Pt. 75) 201. It is well settled that after a successful submission of no case to answer has been made, an accused is no longer to be regarded as charged with that offence of which he was charged and must be discharged on the merits. See Per Umaru Atu Kalgo, JSC in Fidelis Ubanatu v. Commissioner of Police (2000) LPELR-3280(SC) (p.28, Paras. D-E); (2000) 2 NWLR (Pt. 643) 115.
Per Adolphus Godwin Karibi-Whyte, JSC in Adebayo Adeyemi v. The State (1991) LPELR- 172(SC) (P. 58, paras. B-E); (1991) 6 NWLR (Pt. 195) I, explained the situation clearer thus:
Under our Constitution, there is no onus on an accused person to establish his innocence. Hence, where at the close of the case of prosecution, no case has been made out against the accused, asking him to answer any charge connected with the offence with which he has been discharged is a reversal of the constitutional presumption of innocence by asking him to establish his innocence. No Court has such a jurisdiction… Consequently, every proceeding subsequent to the violation of the provisions of Section 33(5) of the Constitution is void having been conducted without competence.” That is what a plea of No Case Submission is basically all about. See also Ede Oko vs. The State (2017) LPELR – 42267 (SC); Iliyasu Suberu vs. The State (2010) LPELR – 3120(SC).
In the context of this appeal, the Administration of Criminal Justice Act 2015 is the grund norm in its following provisions:
“302. The Court may, on its own motion or on application by the defendant after hearing the evidence for the prosecution, where it considers that the evidence against the defendant or any of several defendants is not sufficient to justify the continuation of the trial, record a finding of not guilty in respect of the defendant without calling on him or them to enter his or their defence and the defendant shall accordingly be discharged and the Court shall then call on the remaining defendant, if any, to enter his defence.
303. 1. Where the defendant or his legal practitioner makes a no case submission in accordance with the provisions of this Act, the Court shall call on the prosecutor to reply.
(2) The defendant or his legal practitioner has the right to reply to any new point of law raised by the prosecutor, after which, the Court shall give its ruling.
(3) In considering the application of the defendant under Section 303, the Court shall, in the exercise of its discretion, have regard to whether:
(a) an essential element of the offence has been proved;
(b) there is evidence linking the defendant with the commission of the offence with which he is charged;
(c) the evidence so far led is such that no reasonable Court or Tribunal would convict on it; and
(e) any other ground on which the Court may find that a prima facie case has not been made out against the defendant for him to be called up onto answer.”
The gravamen of the Appellant’s Ground of Appeal altogether are rooted in the provisions of Section 303 (3) (supra), so are the arguments and submissions of the parties in their briefs. Having in mind the laid down principles in the decisions referred a moment ago and the provisions of Section 303 (3) of the ACJA viz-a-viz the evidence in the Record and the Appellant’s Grounds of Appeal as argued by both parties, this Court thus proceeded to consider this No Case Submission.
It must be remembered once again however that the proper practice in a consideration of a No Case Submission is to be generally brief and without any unnecessary comments on the facts. This is not only proper practice but good sense. See Ossai Emedo & Ors vs. The State (2000) LPELR – SC.234/2001. It must also be remembered that at the stage of a No Case Submission, the Court must not search for proof of the charge because all that is required of the Prosecution is to establish a prima facie case which would suggest that an answer or explanation is required from the accused.
As shown earlier, the Appellant’s first issue for determination in particular and indeed along with his second issue are in reality the same with the 1st Respondent’s lone issue. In case it is forgotten, it is on whether the trial Court was right in dismissing the Appellant’s No Case Submission on the ground that the Prosecution had established a prima facie case. As argued for the Appellant, the two elements that run through the elements of all the offences charged; namely that the various sums of money stated in each of the counts of the charge are monies belonging to the Adamawa State Government and secondly that these sums are proceeds of an illegal act have not been proved by the Prosecution, because there being no evidence in proof of the theft of the monies stated, the predicate offences of money laundering and conspiracy as charged also cannot be sustained. The broader arguments for the Appellant here are in the main that the evidence of PWs 5, 6, 9, 10, 15 and 21 as well as the documentary evidences admitted have all failed to establish loss of funds by the Adamawa State Government through theft or any other illegal act of the Appellant. In particular, it is argued for the Appellant also that the extra-judicial Statements of co-suspects in the course of the investigation namely Messrs Ma’aji Iro and Abdulmalik Dalhatu both of whom died during the investigations cannot be utilized in the trial against the Appellant because neither were those Statements made in his presence nor was he confronted with or adopted same. It is the further argument that, in any case, the Statements, even if confessional, can only be utilized against the deceased duo who made them but not against the Appellant in this circumstance. Learned counsel has referred to and quoted the provisions of Section 29(4) of the Evidence Act 2011 which provides that:
“Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.”
On the same argument, the learned counsel also referred to and quoted extensively the decision of the Supreme Court in in Ajaegbo v. The State (2018) 11 NWLR (Pt. 1613), 164 to strengthen this contention and submitted strongly that the trial Court was wrong in placing reliance on those statements against the Appellant.
The foregoing are summarized highlights, not the entirety of the Appellant’s arguments under his first issue for determination. The Appellant’s second issue is that in which he questions the trial Court’s evaluation of the evidence and the discretion it applied in admitting and relying on the said extra-judicial Statements of the deceased co-suspects when it held in particular at page 2041 of the Record that: “I have calmly, carefully, painstakingly considered the 37 Count Charge filed on 07/7/2015, and thoroughly scrutinized the evidence 21 witnesses called by the Prosecution both in-chief and under cross-examination, examined also all documentary evidence especially the extra-judicial Statements of the 1st to 4th Dependents, also considered extra-judicial statement Mohammed Ma’aji and AbdulMalik Dalhatu…”
The grouse of the Appellant here is that the trial Court failed to evaluate the evidence properly in the context of the charge and the laws on the charge contrary to its assertion that it did, thereby arriving at the wrong conclusion that the Appellant has a case to answer. In a nutshell, the trial Court failed to consider the material issues placed before it which amounted to dereliction of duty and improper exercise of judicial discretion. Reliance was placed on the decision in Adeniji vs. Tina George Industries Ltd (2019) 16 NWLR (Pt. 1699), 560 at 591 para D – H and Echaka Cattle Ranch vs. NACB (1998) 4 NWLR (Pt 574), 536 in support of this argument. On the whole, the Appellant seeks that the No Case Submission be sustained and he be discharged accordingly.
The 1st Respondent’s Brief of Argument is exceedingly lengthy and beyond the border line of showing the existence of a prima facie case without more. Be that as it may, this Court has attentively read its entirety. In it all, the 1st Respondent appears to have placed higher interest in the evidence of PWs 5, 6, 9, 10, 20 and 21 as well as Exhibits C1 to C163, AB1 to AB260, E1 to E6 as well as L31 to L39. I have carefully read each. From these and other evidences, the highlights of the 1st Respondent’s arguments and submission are in the following portions:
“4.10. The two departments SSD (Security and Special Department) and Political Department were used by the 1st Defendant and Respondent to siphon public funds through a method of empowering one Mohammed Ma’aji Iro, the Regional of Zenith Bank, North Esat in Jalingo and who was an official of the State Government. The evidence revealed that the 1st Defendant/Appellant would instruct PW21 to raise memo and the amount to be raised in the name of securities and other government purposes. The PW21 would direct his two permanent secretaries (PW5 & PW9) to raise the memo. The 1st Defendant would sign the memo and subsequently, invoices were raised through PW5 & PW9 and the two cashiers who also gave evidence as PW6 & PW10. Various cheques were drawn based on the memo and voucher and signed by the permanent secretaries and their cashiers creating the impression that the cash would be withdrawn from the Zenith Bank in Jalingo and to be taken to a government office to be disbursed by the cashier to the various beneficiaries and for government purposes. However, the instruction by the Appellant to the SSC, the two permanent secretaries and the cashiers were that the cheque were to be dropped and left with Mohammed Ma’aji Iro the Zenith Bank Ma’aji Iro without coming with the proceeds of those cheques. The bank official, Mohammed Ma’aji Iro became the officer who determines where to pay the proceeds of the cheque (certainly on the instruction of the 2nd Respondent) and which payment are mostly done in each. The vouchers and the cheques memo were tendered as Exhibit C1-C163 series, Exhibit AC, Exhibit AB1-AB260 and Exhibit E1-E6.”
Further the down the line, the following further key arguments have been canvassed:
“4.38 On the naming of the thieves, it is clearly stated on the face of the charges that the thieves are the Defendants, particularly the Appellant and their collaborators. The evidence demonstrates clearly that it was Murtala Nyako, the 2nd Respondent who gave instruction to PW21 that the cheques drawn on SSG and SSD accounts which are products of the memo that he signed be lodged with a private citizen, Maaji Iro. The 2nd Respondent admitted that he received cash from the same Mohammed Maaji Iro from the money withdrawn from the SSD and SSG accounts. The 2nd Respondent also received over N300 Million in cash from his personal account with Zenith Bank which Maaji Iro deposited. All the 2nd Respondent’s children subscribed for and paid for the duplexes in the increst Hill View Estate with the money which Ma’aji Iro transferred to 5th Defendant/Respondent. The 2nd Respondent invested huge sum of funds in private business ventures such as Oil Block with the funds belonging to Adamawa State Government as demonstrated above on the directives of the 2nd Respondent. He also invested in other business ventures using the money belonging to Adamawa State government. It is therefore idle to argue that the names of the thieves were not mentioned and that there is no evidence of who the thieves are.
“4.23. On the utilization of the various cheques deposited with Ma’aji Iro, it is instructive your Lordships to read the admission the Appellant, Abubakar Aliyu in his statements tendered as Exhibit L31-L39 which were tendered without objection. He comprehensively stated how Mohammed Ma’aji Iro on the instruction of the 1st & 2nd Defendants made frequent payments to Blue Opal Nigeria Limited, the 5th Respondent in the case. He chronicled all the cash payments made between 2011 – 2013 into the account of the company and how the funds were utilized by the company who was neither a contractor nor an agent of Adamawa State Government. We refer this Honourable Court to pages 1142-1305 Vol. 2 of the record of appeal on how the Prosecution demonstrated various cash lodgments made by Ma’aji Iro into the account the 4th & 5th Defendants.
4.24 The Appellant stated that: “when I noticed the frequency of the transactions on the account and the magnitude of the transactions I approached Mr. Maaji Iro to tell me the sources of the money, he said to me that the monies are coming from Adamawa State Government account, then I caution him and told him to stop the transactions. Abdula-aziz M. Nyeko is a son of the former Governor of Adamawa State Murtala H. Nyeko. On 12/4/13, there was cash deposit of N17,000,000 by Aliyu Yahaya into Tower assets management account by instruction of Abdul-Aziz Nyako for purchase of house Hillview Estate.”
On the Appellant’s claim of absence of evidence to establish a prima facia case of fraud against him, the 1st Respondent points at the evidence of PWs 5, 6, 9, 10, 20 and 21 as well as the Exhibits L31 to 39 which are the Appellant’s confessional Statements. On the whole, the 1st Respondent seeks that this appeal be dismissed.
The Appellant’s two page reply brief, with respects, bears no new or further arguments.
As explained earlier herein, it is for the good of the parties and in accord with the dictates of the law that a consideration and determination of a No Case Submission be brief. Indeed, if one single evidence is sufficient in law to arrive at a decision that an accused has a prima facie case to answer, the Court may so decide without more. At this particular stage of the proceedings, the only evidence directly from the Appellant’s mouth although through the Prosecution’s case is in Exhibits L31 to L39, being the series of the Statements made by the Appellant in the course of the investigation. Regardless of the diverse appellations ascribed to these Statements by the Appellant and the Prosecution as Statements and Confessional Statements respectively, the bottomline is that they are the declarations made by the Appellant in answer to the allegations of the Prosecution which were later streamlined and particularized in the charge read to him upon his arraignment. These Statements formed an integral part of the proof of evidence served on the Appellant before his arraignment as seen on pages 99 to 162 of the Record of Appeal Vol. 1. In the course of the trial, these statements were tendered and admitted in evidence without objection as Exhibits to “L31” to “L39” in the trial. The admission in evidence of the statements without objection by the Appellant may be safely construed as an affirmation of same by him regardless of the worth of their content. While the Prosecution places heavy reliance on these statements in proof of the charge against the Appellant, the Appellant on the other hand thinks they matter not because as argued for the Appellant at page 9 of his brief:
“4.0.9. Perhaps the only evidence the Prosecution can lean on are the alleged confessions contained in the extra-judicial Statements of Late Ma’aji Iro, Late Abdulmalik Dalhatu and the Appellant.
Here again, the following facts were never in dispute:
(a) that both Late Ma’aji Iro and Late Abdulmalik Dalhatu died in custody after they had made their Statements, during investigation, but before they were arraigned along with the other Defendants.
(b) that none Late Ma’aji Iro, Late Abdulmalik Dalhatu and the Appellants made his Statement in the presence of the other Defendants nor was any of the Defendants confronted with the said Statements and none of them adopted the same.
(c) that there is no evidence that the statements of Late Ma’aji Iro and Late Dalhatu were dying declarations or made under any apprehension of impending death.
(d) that the purpose of tendering the said statements of late Ma’aji Iro and Late Abdulmalik Dalhatu was to prove that the same were made.
4.1.0. The big question is: Do these “Confessions” avail the Prosecution? Our answer is a resounding No. Our reasons are:
1. that there is absolutely no evidence outside the purported “Confessions” indicating the funds of Adamawa State Government was stolen.
2. that none of the other Defendants adopted the purported “Confessions”.”
Note the skillful prominence and emphasis placed instead on the statement of others. Notwithstanding, the focus of this Court has not been distracted from Exhibits “L31” to “L39”.
Exhibits “L31” to “L39” chronicled a series of events and transactions directly touching on the specific allegations against the Appellant in counts 1 to 14, and 17 to 37 of the charge. While counts 24 to 29 and 37 allege various linked offences of fraud against the Appellant under the Advance Fee Fraud and Other Fraud Related Offences Act, all the other counts allege against him various linked offences of money laundering under the Money Laundering (Prohibition) Act. The genesis of it all is the Prosecution’s discovery of series of movements of funds belonging to the Adamawa State Government deceitfully and through disguised methods to the Appellant, among others. In each of the nine Statements made by the Appellant, he has reeled out numerous huge deposits of funds into his company account which he says were for the project purposes of his company. By the way, his said company namely Blue Opal Ltd. is the 5th accused person in the trial. He knew the source of these funds. In his statement made on the 17th of September, 2014, he declared therein inter alia thus:
“All the above mentioned transfer/Deposits and Muhammed Ma’aji Iro were Adamawa State Government funds pulled out from the State Government account by Muhammed Ma’aji Iro and paid into Blue Opal Sales account and Tower Assets Management account in Zenith Bank for the subscription of House at Hillview Estate. The funds were used for the development of the Hillview Estate at Mpape, Abuja …”
From this piece of declaration alone, so many questions beg for answers. What exactly is the scheme between the Adamawa State Government and the Appellant? Who and where are the beneficiaries of the houses said to have been built for the Adamawa State Government? Where are those houses? There are other questions but which I think may be better addressed in a trial. In my humble view, any trial Court would certainly seek guidance by way of answers by the accused to these questions. These can only be answered by the Appellant. It is more so when the Prosecution has, by the combined, far reaching evidence of PWs 5, 6, 9, 10, 20 and 21, presented a seemingly strong prima facie case of fraud and money laundering against the Appellant by painting a colourful, attractive picture of fraud and money laundering on both the source and the end as well as the method of the movements of the funds in issue. In my humble view, the Prosecution’s case, at this stage, has established the essential ingredients of the offences of fraud and Money Laundering. See Section 15 of the Money Laundering Act and Section 1 (a) and (8) of the Advance Fee Fraud Act.
It may have been noticed that this Court has not made any specific determination on the status of the extrajudicial Statements of messrs Ma’aji and Dalhatu i.e. Exhibits “L40” and “L41” respectively. It is not an oversight. Firstly, those statements are clearly unnecessary in determining the issue of No Case Submission. Section 251 (1) of the Evidence Act 2011 provides that:
“The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.”
Secondly, the arguments on it can still be taken again before the trial Court advisedly at the stage of final address to seek that the statements be expunged from its Record on the ground of alleged wrongful admission in evidence. See BMNL vs. Ola Ilemobola Ltd (2007) All FWLR, (Pt.1340), 1367 – 1368 paras F- C (SC); Nigeria Social Insurance Trust Fund vs. KLIFCO Nig. Ltd (2010) LPELR – SC.288.2005.
In consequence of the foregoing, it is the decision of this Court that this appeal lacks merit and is accordingly dismissed. The decision of the trial Court is upheld and the Appellant Abubakar Aliyu hereby ordered to present his defence in the trial.
PETER OLABISI IGE, J.C.A.: I agree.
DANLAMI ZAMA SENCHI, J.C.A.: I was in the conference of panel of Justices that heard this appeal and I had the privilege of reading in draft the leading judgment of my learned brother, ISAH BATURE GAFAI, JCA just delivered, and the leading judgment substantially captured all the issues I raised during the conference and I therefore agree with the findings and conclusions reached therein that this Appeal lacks merit and it is accordingly dismissed by me as well.
Now essentially, this appeal borders on the ruling of the lower Court delivered on the 19th day of July, 2021 pursuant to a “No Case Submission” made by the Appellant at the lower Court. The ruling of the lower Court can be found at pages 2149 – 2151 of the Record of Appeal.
The Administration of Criminal Justice Act, 2015 made provisions at Sections 302 and 303 upon which a No Case Submission can be made. However, there are certain basic guiding principles that a lower Court should have at the back of its mind when ruling on a no case submission made by a Defendant.
Firstly, in every case where a no case submission is made, the main issue is whether the Prosecution has established a prima facie case against the Defendant. This is the issue which the trial Court is called upon to consider in a no case submission. See CHRISTOPHER O. IGWE V. THE STATE (2021) LPELR- 55336 (SC) and IKOMI V. THE STATE (1986)3 NWLR (PT. 28) 340.
Secondly, it is necessary for the trial Court in a no case submission to answer to note that at this stage, it is only the Prosecution’s evidence in support of its case that has been presented, before the opening of the case of the Defence, which is made at an interlocutory stage and thus, the trial Court would not be in a proper position to determine the substantive issue of the guilt of the Defendant. See COP V. UDOSEN & ANOR (2015) LPELR-40602 (CA).
Thirdly, in a no case to answer submission, the trial Court is expected to consider the evidence adduced by the Prosecution and the ingredients of the offence(s) charged to determine whether a prima facie case has been established against the Defendant and it is the same evidence and ingredients which the Court is expected to consider (along with the defence, if any) at the end of the trial to determine whether the offence charged has been proved beyond reasonable doubt against the Defendant. There is therefore a real likelihood that if care is not taken, pronouncements will be made and conclusions reached by the Court on the evidence adduced by the Prosecution which would have the effect of predetermining substantive issues at the interlocutory stage of ruling on a no case submission. Thus, where the ruling on a no case submission would not put an end to a criminal trial, it is advisable that the Court should not say too much or comment on the evidence so far led before it, so as not to make pronouncements and conclusions that would prejudice the issues in the substantive trial. This position has been strongly supported by this Court and the Supreme Court in a plethora of decided cases. The Supreme Court Per Ademola JSC (as he then was) held as follows in the case of BELLO V. STATE (1966) LPELR-25291 (SC):
“Whilst it is not the aim of this Court to discourage a Judge from discussing matters of interest in his judgment, we would like to warn against any ruling of inordinate length in a submission of no case to answer, as too much might be said, as was done in this case, which at the end of the case might fetter the Judge’s discretion. On the Ruling made by the learned Judge in this case, we can appreciate his manifold difficulties later in discharging Lasekan, the 2nd Accused It is wiser to be brief and make no observations on the facts. See R V. EKANEM, 13 WACA 108 AT 109.”
Also, this Court held in the case of FRN V. BULAMA & ORS (2021) LPELR-53226 as follows:
“When a no case submission is made by the defence after the prosecution has closed its case, all that is required of the trial Court is to state whether or not the prosecution has made out a prima facie case requiring an explanation from the accused person (s). At the stage of ruling on the no case submission, the trial Court is not expected to formally evaluate the evidence, ascribe probative value thereto and make specific findings of fact to determine if the evidence is sufficient to justify a conviction. It must be understood that the purport of a no case submission is that the Court is not called upon at that stage to express any opinion on the evidence before it. At that stage, the credibility of the prosecution witnesses shall not be considered as the defence is yet to present its witnesses. Where the trial Court dismisses a no case submission, its ruling should be brief so that the merits of substantive case will not be jeopardized and or prejudiced.”
See AJIBOYE V. STATE (1995) LPELR-300 (SC); AITUMA V. STATE (2007)5 NWLR (PT. 1028) PAGE 466 and ADAMA V. STATE (2017) LPELR-42266 (SC).
It must however be noted that the fact that a ruling on a no case submission is of inordinate length may not by itself be enough ground to reverse the decision on appeal but where the Court has made comments and conclusions on the evidence which fetters its discretion in the substantive matter, such decision or ruling will be set aside on appeal. It is therefore altogether safer to avoid a ruling of inordinate length under any circumstance. See FAGORIOLA V. FRN (2010) LPELR-4139 (CA).
It is trite also that even in this Court, such caution must be exercised in writing lengthy rulings on a no case submission to avoid pronouncement on substantive issues bordering on proof beyond reasonable doubt as would render the trial Court prejudicial to continue with the trial, should its finding be overturned on appeal and the case is remitted to the trial Court. See HARDROCK CONSTRUCTION ENGINEERING CO. & ANOR V. STATE OF LAGOS & ORS (2018) LPELR-46538 (CA).
In the instant appeal, the lower Court at page 2151 of the Record of Appeal held as follows:
“It is my humble but firm view that the Prosecution in the evidence of 21 witnesses both oral and documentary have established a strong prima facie case against the Defendants and they are required to enter their defence immediately.”
Thus, the lower Court, after a painstaking evaluation of the witnesses’ testimonies and the documentary evidence, came to the conclusion that the Prosecution has established a prima facie case against the Appellant that requires the Appellant to enter his defence and offer some explanations. The finding of the lower Court on the no case submission cannot be faulted and it is on firm pedestal with the principles of interlocutory decisions.
Thus, this appeal, as I said earlier, lacks merit and it is accordingly dismissed by me as well. The judgment of the lower Court is hereby affirmed and the case hereby remitted back to the lower Court for continuation of the Appellant’s trial.
Appearances:
HAUWA ISIYAKU (Mrs) For Appellant(s)
OLUWALEKE A. ATOLAGBE – for 1st Respondent For Respondent(s)