ANNA OMUEDA v. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/12104(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 31st day of October, 2018
CA/K/117/C/2015
RATIO
COURT AND PROCEDURE: WHERE A CASE IS MADE PRIMA FACIE
“A prima facie case is made out where the evidence adduced by the prosecution is such that, if uncontradicted, would be sufficient to prove the case against the accused person.
A No-Case submission can only be upheld when:
(a). There has been no evidence to prove an essential element of the alleged offence; and/or
(b).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. It follows therefore that what has to be considered at the stage of a no-case submission is not whether the evidence against the accused is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring at least some explanation from the accused person.” PER IBRAHIM SHATA BDLIYA, J.C.A.
EVIDENCE: WHETHER EVIDENCE DISCLOSES A PRIMA FACIE CASE
“It is trite law that evidence discloses a prima facie case when it is such that if un-contradicted and if believed, it is sufficient to prove the case against the accused person. See Ajidagba v. Police (1958) SCNLR 60; Ohwovoriole v. F.R.N (2003) 2 NWLR (Pt. 803) 176; Ajiboye v. State (1994) 8 NWLR (Pt. 364) 587; Ekwunugo v. F.R.N (2008) 15 NWLR (Pt. 1111) 630.” PER IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
ANNA OMUEDA (A.K.A RUKOME ENTERPRISES) Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of the Kaduna State High Court of Justice (the lower Court) in charge No. KDH/KAD/2/EFCC/2007, delivered on the 27th of May, 2014, by ALIYU, J. The appellant was alleged to have applied for and was granted a loan-facility of Thirty-two (32) Million Naira by United Bank for Africa Plc, sometime in 2003. The loan facility was to be off-set (or repaid) in 12 months. The loan was guaranteed by Guinness (Nig) Plc who supplied its products to the appellant, whereby the repayment of the loan facility was to be repaid instalmentally.
The appellant defaulted in the repayment of the loan. Dissatisfied with the mismanagement of the repayment of the loan by the appellant and UBA PLC; Guinness Nigeria Plc lodged a complaint to the Economic and Financial Crime Commission. After investigation by the EFCC, the appellant was charged to Court for allegedly committing the offence of cheating under Section 323 of the Penal Code. The prosecution called 3 witnesses and tendered exhibits to prove the case against the appellant. The appellant filed a NO-CASE SUBMISSION, on the ground that there was no prima facie case disclosed against her. The learned judge of the lower Court, after considering the submissions of learned counsel to the appellant and the EFCC, over-ruled the NO-CASE SUBMISSION in a ruling delivered on the 27th of May, 2014. Dissatisfied with the ruling, the appellant filed an appeal to this Court, challenging same.
The appellant’s brief of argument was filed on the 23rd of June, 2016, with a sole issue for determination culled from the grounds of appeal, on page 4 thereof. The respondent?s brief of argument was filed out of time which was deemed properly filed on the 7th of June, 2018. A sole issue for determination has been distilled from the grounds of appeal on page 2 thereof. A Reply brief was filed by the appellant on the 26th of June, 2016.
RESOLUTION OF ISSUES
The sole issue for determination contained on page 4 of the appellant?s brief of argument, and that on page 2 of the respondent’s brief of argument are dovetailing, interwoven, not dissimilar, therefore, same are hereby amalgamated and compressed thus:
“Whether or not a case had been made out against the Appellant to warrant calling upon her to enter her defence to the case of the prosecution”(Ground Nos. 1-5).
A. C. Ibitoye Esq, of learned counsel to the appellant, submitted that an accused person standing trial can only be called upon to enter his defence where the evidence adduced by the prosecution discloses a prima facie case. That a prima facie case is disclosed when the evidence is such that, if uncontradicted, and if believed, will be sufficient to prove the case against the accused person. The principles of law on when a prima facie case has been disclosed which requires the accused person to enter a defence thereto, have been espoused in a litany of judicial decisions, such as Duru v. Nwosu (1989) NWLR (Pt. 113) P. 24 @ 43; Emmanuel Ibeziako v. Com of Police (1963) 1 ALL NWLR (Pt. 61) amongst others.
It is learned counsel’s further submissions that in considering a ‘NO-CASE SUBMISSION’ the trial Court should not be concerned with whether the evidence adduced can support the charge or not against the accused person, but that, if such evidence is be accepted as credible, would warrant the conviction of the accused person. In the instant case, learned counsel did contend, what is to be considered is, whether the evidence of the prosecution, if believed would establish the elements of the offence of cheating under Section 323 of the Penal Code?
Counsel pointed out that the essential elements of the offence of cheating under Section 323 of the Penal Code, are (i) the accused person deceived someone (ii) he did it fraudulently or dishonestly, and (iii) by inducing someone to deliver property to another person or to consent to the retention of the property by any person. As to when a NO-CASE SUBMISSION can be upheld by a trial court, learned counsel referred to and relied on the principles of law propounded in Aliyu v. State (2007) ALL FWLR (Pt. 388) P. 1123 @ 1148; Ubanatu v. State (2001) SCNJ P. 50 @ 95, and Adeyemi v. State (1991) 6 NWLR (Pt. 195), to buttress the submissions supra.
It is counsel’s contention that failure to repay a loan, cannot be evidence of dishonestly or fraud, rather it is a civil liability as could be garnered from the loan agreement between the parties. The evidence of PW1, 2 and 3 were referred to and relied on to buttress the submissions supra. Therefore, on the evidence of PWS 1, 2, 3 and the exhibits admitted in evidence, the commission of the offence of cheating has no basis, which would require the appellant to enter her defence. That the evidence adduced only disclose a breach of an agreement to repay the loan granted to the appellant.
It is counsel’s contention that were the evidence adduced by the prosecution, has not established any element of the offence, a NO-CASE submission is to be upheld as enunciated in the case of Emedo v. State (2000) 15 NWLR (Pt. 788) P. 176 @ 205. This Court has been urged to apply the principles of law, and reasoning of the Court, in the case supra, to this extant appeal, and to hold that the lower Court erred in dismissing the NO-CASE submission of the appellant. It has been urged that the issue for determination be resolved in favour of the appellant, allow the appeal, and set aside the ruling of the lower Court delivered on the 27th of May, 2014.
I. G. ODIBO Esq, who settled the respondent’s brief of argument, adumbrated the principles of law governing NO-CASE SUBMISSION, that is, when to uphold same or not, as propounded in the cases of Ubanatu v. Com of Police (2000) NWLR (Pt. 643) P. 115 @ 141; Ajiboye v. State (1995) 8 NWLR (Pt. 414) P. 408 @ 418, Igabele v. State (2004) 15 NWLR (Pt. 896) P. 314 @ 331, and did contend that there was sufficient and cogent evidence adduced by the prosecution, which if believed, would require the appellant to enter a defence. That at this stage, what a trial Court is to consider, is not whether the commission of the offence has been proved, but whether if the evidence adduced is believed, the commission of the offence would have been established. The principles of law enunciated in the cases of Ajiboye v. State, Igabele v. State and Ubanatu v. Com. Of Police, supra, were relied on to reinforce the contentions supra.
Submitting further, counsel did adumbrate that, in a NO-CASE SUBMISSION, what is to be considered is, whether there are grounds for the continuation of the case against the accused person, after the evidence of the prosecution, not whether the commission of the offence by the accused has been proved. In other words, is there ground for further enquiry, which the accused person must proffer evidence to enable the Court decide whether the offence has been committed, or not. The cases of Adeyemi v. State (1991) 1 NWLR (Pt. 195) P. 1; Odido v. State (2005) 1 NWLR (Pt. 369) P. 181 and Yav v. State (2005) 5 (Pt. 917) P. 1022 cited and relied on to buttress the submissions supra.
On the elements or ingredients of the offence of cheating under Section 322 of the Penal Code, learned counsel did contend that the evidence of PW1, 2 and 3 disclosed a prima facie case against the appellant which requires further explanation from her, therefore, the dismissal of the NO-CASE submission, is proper and or justified. Counsel cited and relied on the principles of law espoused in the case of Uzogoba v. Com. of Police (2014) 5 NWLR (Pt. 1401) P. 441 @ 457 to reinforce the submissions supra. In conclusion, learned counsel did urge that the sole issue be resolved against the appellant, and the decision of the lower Court be affirmed, so that the prosecution of the case at the lower Court can proceed without further delay.
In considering a no-case submission, the Court’s duty is simple: It is only to determine whether the prosecution has made out a prima facie case; that is, whether there is admissible evidence linking the defendant with the offence with which he is charged. Hence, it neither involves the evaluation of evidence nor the consideration of the credibility of the witnesses. So, the trial Court must, with considerable circumspection, endeavour to avoid the temptation of delving into the exercise of evaluation of evidence or the consideration of the credibility of witnesses. This must be so because a prima facie case is not the same with proof of a crime, which is determined after the close of trial as such, the trial Court would be overreaching itself if it embarks on the evaluation of evidence or dissipates valuable judicial energy in the assessment of the credibility of the witnesses. State v. Emedo (2001) 12 NWLR (Pt. 726) 131; Ekpo v. State (2001) 7 NWLR (Pt. 712) 292; Odido v. State (1995) 8 NWLR (Pt. 369) 88; Daboh v. State (1977) 5 SC 197.
Where a no-case submission is made, the Court is not expected to form any opinion on the evidence. The rationale for this inviolable prescription is that, in such a situation, the duty of the trial Court is limited to a finding whether, prima facie, on the evidence adduced, the accused person has been linked to the commission of the alleged offence. Thus, in considering the defendant?s submission that he has no case to answer, the Court has no obligation to determine the question whether the evidence could sustain a conviction at that stage.
On the essence of a no-case submission, the Apex Court, in the case of Tongo v. Com. of Police (2007) 12 NWLR (Pt. 1049, Per, ONNOGHEN, J.S.C (as he then was) espoused that:
“I hold the view that the essence of 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, in the instant case, of wilful and malicious damage or establish the ingredients of the offence against the accused to make it imperative for the Court to call upon the accused to defend himself or answer to the charge or open his defence or enter his defence. It should always be borne in mind that at the stage where a no-case submission is made, particularly where learned counsel indicates intention not to rely on same, what is to be considered by the Court is not whether the evidence produced by the prosecution against the accused is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring, at least, some explanation from the accused person as regard his conduct or otherwise. See Queen v. Ogucha (1959) 4 FSC 64, (1959) SCNLR 154; Duru v. Nwosu (1989) 4 WLR (Pt. 113) 24 @ 31; Ikomi v. State (1986) 3 NWLR (Pt. 28) 340 @ 366; Onagoruwa v. State (1993) 7 NWLR (Pt. 303) 49 @ 80.”
Again in Destra Investment Ltd v. FRN (2017) 2 NWLR (Pt. 1550) P. 485 @ 513, the principles of law on a no-case submission had been propounded thus:
“At the stage when no-case submission is made an accused person on trial, what the Court considers is not whether the evidence adduced, by the prosecution against the accused person is sufficient to justify the conviction of the accused person, but whether the prosecution had indeed made out a prima facie case requiring at least some explanation from the accused person as regard his conduct or otherwise. In other words, a prima facie case means that the prosecution’s case against an accused person has raised some serious questions linking the accused person to the crime and so calling for some explanation from the accused person and which only the accused person from his personal knowledge can give”.
The appellant was charged with committing the offence of cheating under Section 322 and punishable under Section 323 of the Penal Code, Kano State. The ingredients of the offence of cheating are:
(1).That the person deceived delivered to someone or consented that some person shall retain some property and
(2).That the person deceived was induced by the accused to part with property; and
(3).That the person deceived acted upon the inducement of the accused; and
(4).That the accused acted fraudulently or dishonestly while inducing that person.
See Michael Uzoagbo v. C.O.P (2014) 5 NWLR (Pt. 1401) 441 @ P. 457, paras, A-C; 463-464.
It is trite law that evidence discloses a prima facie case when it is such that if un-contradicted and if believed, it is sufficient to prove the case against the accused person. See Ajidagba v. Police (1958) SCNLR 60; Ohwovoriole v. F.R.N (2003) 2 NWLR (Pt. 803) 176; Ajiboye v. State (1994) 8 NWLR (Pt. 364) 587; Ekwunugo v. F.R.N (2008) 15 NWLR (Pt. 1111) 630.
The prosecution called 3 witnesses who testified, and 9 exhibits were admitted in evidence to prove the commission of the offence of cheating by the appellant. The evidence of PW3, which has been recorded on pages 133 to 142 of the printed record of appeal is vital in the consideration of whether a prima facie case had been disclosed against the appellant to warrant calling upon her to enter her defence or not. The relevant portion of the evidence are reproduced hereunder as culled from pages 133 to 134 of the printed record of appeal:
“I know the accused person. I also know Rukome Enterprises. It is a business name owned by the accused person. The accused has an Account in her business name in our banks Kaduna North branch. In 2003 we availed the accused a facility of N32,000,000.00 for the purchase of Guinness Nigeria Plc Products. The facility is such that we cannot reject her cheques drawn in the name of Guinness Plc. The accused is supposed to remit the proceeds of the products given to her by business to pay off her facility. The accused was unable to pay the facility and the cheques coming up for Guinness which show that goods of that value had been given to her, corresponding value show her return was not in consonance with the cheques given to her. When the debit was much are stated making demands from the accused. The goods in here warehouse which is supposed to be the collateral grossly did not justify her standing indebtedness to the bank. When we could not get response from her we suspected diversion and petitioned her to the EFCC.
The accused is a key distributor of Guinness Nigeria Plc. The whole conception is that Guinness supplies products to the accused based on this N32 Million over draft. The money was not given to her. She issues her cheques to Guinness for products supplied to her by Guinness. Guinness upon presentation of the cheque supplied the accused with products as the cheque must be honoured because of the facility. Between 2003-2006 the accused presented cheque to Guinness over N200 Million as the fund is revolving. What we paid to Guinness. That was why we petitioned the EFCC. The accused fully utilized the N32 Million facility but did not repay the facility”.
Exhibits 1-9 are also relevant in the consideration of whether a prima facie case has been disclosed to warrant calling upon the appellant to enter defence. It must be noted that at the stage where a no-case submission is made on behalf of an accused, the issue is not whether the prosecution has proved the charge against the accused beyond reasonable doubt, but whether a prima facie case has been made out by the prosecution against the accused so as to make it necessary for the Court to call on him to open his defence to the charge.
A prima facie case is made out where the evidence adduced by the prosecution is such that, if uncontradicted, would be sufficient to prove the case against the accused person.
A No-Case submission can only be upheld when:
(a). There has been no evidence to prove an essential element of the alleged offence; and/or
(b).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.
It follows therefore that what has to be considered at the stage of a no-case submission is not whether the evidence against the accused is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring at least some explanation from the accused person.
The learned judge of the lower Court, in over-ruling the no-case submission made on behalf of the appellant held that:
“I have carefully considered the pieces of evidence in this case. The evidence of the investigating Officers is that accused who was a customer of UBA applied for and was granted facility by the UBA in the year 2003. The terms of the Agreement are contained in the offer Agreement exhibit 7 which shows that the overdraft was a 12 months facility is repayable from cash flow generated from daily sales over a maximum period of 12months with all payments to be made in full. The collateral for the facility in the hypothetication of the Guinness products received in the warehouse of the accused. The evidence is that while payments are made by the UBA to Guinness as accused issued cheques for payment there were no products in the ware house of the accused and the accused is not making daily payments into the loan account with UBA equal to the worth of the products paid for. Furthermore, the accused has admitted in her additional Statement dated 12/12/06 that she built the house at Gonin Gora in 2004 about 5 months after the facility was granted her. It seems to me therefore there is need for the accused person to call some evidence to shed light on this issue. I so hold and overrule the no-case submission”.
Having regard to the totality of the evidence of PWS 1-3 and exhibit 1-9, I cannot but agree with the learned judge of the lower Court, that a prima facie case had been disclosed against the appellant requiring her to enter defence and adduce evidence, which may discredit or disparage the evidence adduced by the prosecution before the Court can decide whether the offence of cheating under Section 322, and punishable under Section 323 of the Penal Code can be sustained or not. In the result, I resolve the sole issue against the appellant. The ruling of the lower Court in charge No. KDH/KAD/2/EFCC/07, delivered on the 27th of May, 2014, is hereby affirmed.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother IBRAHIM SHATA BDLIYA JCA, in draft form. I agree with my lord’s reasoning and conclusion that the lower Court was right in its Ruling on the No-case submission. All that is required to be considered in a no-case submission is whether the prosecution has made out a prima facie case. And what is a prima facie case? It is as stated and defined in Black’s Law Dictionary as, ‘the establishment of a legally required rebuttable presumption’. The key words in that definition are ‘presumption’ and ‘rebuttable’. From the evidence before the lower Court, could the Court presume that the prosecution had a case which presumption the defence could rebut? I think so. The lower Court thought so and my learned brother having scrutinized the Ruling of the lower Court has held that the lower Court is right. I agree with my learned brother.
JAMES GAMBO ABUNDAGA, J.C.A.: I had read in draft the judgment delivered by my learned brother, Ibrahim Shata Bdiliya, JCA. I am in all fours with him that the issue for determination in this appeal be resolved in favour of the Respondent.
Consequently, I too affirm the ruling of the lower Court in Charge No. KDH/KAD/2/EFCC/07 delivered on 20th May, 2014.
Appearances:
A. O. Ibitoye, Esq.For Appellant(s)
C. D. Dennis (Mrs) Esq.,
DCDS EFCC For Respondent(s)
