ASULIMHEN v. STATE (2022/

ASULIMHEN v. STATE

(2022)LCN/16282(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, February 23, 2022

CA/AS/443CA/2014

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

MONDAY ASULIMHEN APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE MEANING OF A NO CASE SUBMISSION

The meaning of a no case has been stated in several decisions of this Court and the Supreme Court. See FAGORIOLA V. FEDERAL REPUBLIC OF NIGERIA (2013) LPELR-20896(SC) AT 30-31 (F-A), IKUFORIJI V. F.R.N (2018) LPELR-43884(SC) AT 20-21 (G-A). On the authority of the above cases, no case submission means that there is no evidence on which the Court would convict even if the Court believed the evidence adduced by the prosecution. A no case submission can only be upheld if any of the following conditions exists: 1. Where there is no legally admissible evidence to prove an essential element of the alleged offence. 2. Where the evidence led by the prosecution has been so discredited as a result of cross-examination, or is so manifestly unreliable that no reasonable tribunal would safely convict on it. See AGBO & ORS V. THE STATE (2013) LPELR-20388(SC) AT 15-16 (F-A), AMAH V. FEDERAL REPUBLIC OF NIGERIA (2019) LPELR-46347(SC) AT 38 (C-G). PER BOLAJI-YUSUFF, J.C.A.

THE DUTY OF THE COURT AT THE STAGE OF A NO CASE SUBMISSION

THE CONIDTIONS TO BE SATISFIED BY THE PROSECUTION IN ORDER TO ESTABLISH A PRIMA FACIE CASE OF CONSPIRACY

In order to establish a prima facie case of conspiracy, the prosecution needs to prove that: (a) there was an agreement between the accused persons to do or cause to be done some illegal act or some act which is not illegal but by illegal means. (b) That some act besides the agreement was done by one or more of the accused persons in furtherance of the agreement. (c) That each of the accused persons individually participated in the conspiracy. The law is trite that the prosecution needs not to prove that the individuals were in direct communication with each other or directly consulting together but that they entered into an agreement with a common design. See MUSA V. STATE (2016) LPELR-42803 (SC) AT 25-26 (E-D). PER BOLAJI-YUSUFF, J.C.A.

ELEMENTS OF THE OFFENCE OF STEALING

The elements of the offence of stealing are: 1. Ownership of the thing stolen. 2. That the thing stolen is capable of being stolen. 3. The accused person has the intention of permanently depriving the owner of the thing stolen. 4. That the accused was dishonest. 5. That the accused unlawfully appropriated the thing stolen to his own use. See ADEJOBI & ANOR v. THE STATE (2011) LPELR-97(SC) AT 38-39 (G- B). AMAH V. FEDERAL REPUBLIC OF NIGERIA (SUPRA) AT 41 (C-E), 55(G-C). CHYFRANK NIGERIA v. FEDERAL REPUBLIC OF NIGERIA (2019) LPELR-46401(SC) AT 12 (C-E).

As regards the charge of forgery, Section 465 of Criminal Code Law, Cap C22, Volume 1, Laws of Delta State, 2006 provides that:
“A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Nigeria or elsewhere to the prejudice of any person, or with intent that any person may be in the belief that it is genuine, be induced to do or refrain from doing any act, whether in the state or elsewhere, is said to forge the document or writing…”
The elements of the offence of forgery are: 1. the making of a document or writing knowing it to be false. 2. That the accused forged the document in question. 3. The intent that it may be used or acted upon as genuine. See AWOBOTU V. THE STATE (1976) LPELR-649(SC) AT 31(C-F), MICHAEL ALAKE V. THE STATE (1992) LPELR-403(SC) AT 10 (B-C), NDOMA-EGBA V. AFRICAN CONTINENTAL BANK PLC (2005) LPELR-1973(SC) AT 21-22 (E-B), STANILAUS v. FEDERAL REPUBLIC OF NIGERIA (2020) LPELR-50793(CA) AT 7-8 (F-F). PER BOLAJI-YUSUFF, J.C.A.

THE MOST IMPORTANT ELEMENT OF THE OFFENCE OF FORGERY

The most important element of the offence of forgery to be proved is that the accused forged the document in question. See ALAKE V. THE STATE (1992) LPELR-403(SC) AT 10 (C), IDOWU V. STATE (1998) LPELR-1428(SC) AT 8 (F-G). There is no scintilla of evidence that the appellant forged the Bill of Lading, Exhibit A which was used to clear the containers from the port or that he knew anything about the document. From the evidence on record, the appellant knew nothing about the document(s) alleged to have been forged. In ADEBAYO ADEYEMI v. THE STATE (1991) LPELR-172(SC) AT 50-51(B-A), the Supreme Court Per KARIBI-WHTYE, J.S.C stated the effect of the failure of the prosecution to make a prima facie case as follows:
“In Ajidagba v. I.G. of Police (1958) SCNLR 60, the Federal Supreme Court considering the effect of the making of a prima facie case and construing Section 286 of the Criminal Procedure Ordinance, adopted the meaning of the phrase prima facie in meaning of the phrase prima facie in the Indian case of Singh v. Jitendranathsen (1931) 1 LR 59 Calc 275. It was there said, “The term so far as we can find has not been defined either in the English or in the Nigerian Courts. In an Indian case, however, Singh v. Jitenddranthsen (1) we find the following dicta: “what is meant by prima facie (case)? It only means that there is ground for proceeding … But a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is guilty or not guilty, “(per Grose J) and “the 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” (per Lort- Williams, J. Accordingly where the prosecution has failed to make a prima facie case, sufficiently to require the accused to make his defence, the Court shall, and this is mandatory, discharge him as to that particular charge. See Ajidagba v. I.G. of Police (supra), Okoro v. State (1988) 12 SCNJ 191; (1988) 5 NWLR (Pt.94) 255 and R v. Plain (1967) 1 All ER.614. The words of Section 286 of the Criminal Procedure Law are clear and unambiguous in favour of such a construction.” PER BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the ruling of the High Court of Delta State delivered in Charge No. W/1C/98. The appellant as the 6th accused and five others were arraigned for conspiracy, stealing and forgery. All the accused persons pleaded not guilty to the charge. The prosecution called eight witnesses and tendered several exhibits to prove its case.

Upon the close of the prosecution’s case, counsel to the accused persons made a “no case” submission pursuant to Section 286 of the Criminal Procedure Law, Cap C22, Volume 1, Laws of Delta State, 2006. In a reserved ruling delivered on 10/6/2012 by Onajite – Kuejubola J., the lower Court after a consideration of the evidence adduced and the submissions of counsel found that a prima facie case had been made out against all the accused persons in respect of all the charges. He called on all the accused persons to enter their defence.

Aggrieved by the decision of the lower Court, the appellant filed a notice of appeal against the decision on 10/7/12. The two grounds of appeal contained therein are:
1. “The learned trial judge erred in law when she failed to expunge the totality of the evidence in chief given by PW8, the Investigating Police Officer who died before his cross-examination by any of the accused persons.
2. The learned trial judge erred in law by calling upon the accused person to defend himself when there is no iota of evidence from PW1-PW7 touching him.”

The appellant’s brief of argument was settled by Chief Pius I. Egemole and filed on 9/6/20. It was deemed as properly filed on 22/1/21. When the appeal was called for hearing, the appellant’s counsel despite service of notice of hearing on him was absent without any explanation. The appeal was therefore treated as having been argued pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules, 2021. The appellant formulated the following issues for the determination of this appeal:
1. Whether the no case submission made by the appellant before the trial Court was rightly overruled by the trial Court.
2. What is the implication of the failure of the PW8, the Investigating Police Officer to conclude his evidence and present himself for cross-examination?
3. Can the trial Court convict the appellant in the absence of the evidence of the Investigating Police Officer?

The respondent’s brief of argument was settled by Chief Olivia Agbajoh and filed on 24/1/2021 pursuant to the order of this Court made on 22/1/21. The respondent formulated the following issues for determination:
1. Whether the no case submission made by the appellant was rightly overruled by the learned trial judge.
2. Whether the evidence of PW8 (the IPO) who testified in chief without being cross-examined by the appellant before his demise is evidence upon which the trial Court can rely.

I have read the issues formulated by counsel to both parties. I find the appellant’s issue 1 which is the same as the respondent’s issue 1 and which subsumes all other issues to be apt for the determination of this appeal.

It is the contention of the appellant’s counsel that the appellant’s no case submission was wrongly overruled by the lower Court because the police even though not an eye witness must testify statutorily in order to present a balance account of what transpired. He referred to AIGBADION V. STATE (2000) 7 NWLR AT 586 AT 690-692 (ratio 6-10). He further submitted that the prosecution having failed to present PW8, the IPO for cross-examination and having failed to present his death certificate, the Court should have ignored his evidence and expunge all the documents tendered through him from the record and if that had been done, there would not have been any prima facie case made out by the prosecution against the appellant. He referred to FAGORIOLA V. FRN (2013) 35 WRN PAGE 29 (35-40). AL-MUSTAPHA V. STATE (2013) 34 WRN PAGE 151- 152(40-50).

In response, the respondent’s counsel submitted that what the Court considers at the stage of no case submission is not whether the evidence against the accused is sufficient to justify a conviction but whether the prosecution has made out a prima facie case requiring at least some explanation from the accused person. On the conditions for upholding a no case submission, he referred to SUBERU V. THE STATE (2010) 41 (PT.2) NSCQR 1169 AT 1186-1187, IBEZIAKO V. C.O.P (1963) 1 SCNLR 99, ADEYEMI V. THE STATE (1991) 6 NWLR (PT. 195) 1, AJIBOYE V. THE STATE (1995) 8 NWLR (PT. 414) 408, UBANATU V. C.O.P (1999) 7 NWLR (PT.611) 512 AT 514. Section 287 of the Criminal Procedure Law of Delta State. He submitted further that the statements of the 1st, 2nd and 3rd accused persons admitted as Exhibits H1, H2, H3, J, J1, K and K1 and those of the appellant, Exhibits N and N1 when read together clearly linked the appellant to the offences for which he was charged.

On the evidence of PW8, counsel submitted that the evidence of a witness who died without completing his evidence is still relevant and legal but the weight to be attached to such evidence depends on the circumstances of the case. He referred to OKWA V. IWEREBOR & ORS (1969) NSCC VOLUME 6 PAGE 73 AT 75, (1969) LPELR-25565(SC), ONYENWE & ANOR. V. ANAEJIONU (2014) LPELR- 22495(CA). He argued that though PW8 was not cross-examined on the appellants’ statements Exhibits N and N1 before his death, the statements having been tendered without any objection on ground of involuntariness cannot be expunged from the record.

RESOLUTION
Section 286 of the Criminal Procedure Law, Cap C22, Volume 1, Laws of Delta State, 2006 provides that:
“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.”
The defence always utilise the above provision of the CPL to make a no case submission. The meaning of a no case has been stated in several decisions of this Court and the Supreme Court. See FAGORIOLA V. FEDERAL REPUBLIC OF NIGERIA (2013) LPELR-20896(SC) AT 30-31 (F-A), IKUFORIJI V. F.R.N (2018) LPELR-43884(SC) AT 20-21 (G-A). On the authority of the above cases, no case submission means that there is no evidence on which the Court would convict even if the Court believed the evidence adduced by the prosecution. A no case submission can only be upheld if any of the following conditions exists: 1. Where there is no legally admissible evidence to prove an essential element of the alleged offence. 2. Where the evidence led by the prosecution has been so discredited as a result of cross-examination, or is so manifestly unreliable that no reasonable tribunal would safely convict on it. See AGBO & ORS V. THE STATE (2013) LPELR-20388(SC) AT 15-16 (F-A), AMAH V. FEDERAL REPUBLIC OF NIGERIA (2019) LPELR-46347(SC) AT 38 (C-G).

The duty of the Court at the stage of a no case submission is stated by the Supreme Court Per KEKERE-EKUN, J.S.C in COMMISSIONER OF POLICE v. MR. EMMANUEL AMUTA (2017) LPELR-41386(SC) AT 27-28 F-F) as follows:
“It is settled law that a submission that there is no case to answer by an accused person means that there is no evidence upon which, even if the Court believed it, it could convict. In other words, where there has been no evidence to prove an essential element of the offence, or where the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Court or Tribunal can safely convict on it. At the stage when a no case submission is made, the trial Court is not called upon to express an opinion on the evidence before it. The credibility of the witnesses is not in issue at this stage. All that the Court is required to do is to determine whether or not there is any legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the record. If it does not, the submission is bound to fail.”
In AJIBOYE & ANOR v. THE STATE (SUPRA), (1995) LPELR-300(SC) AT 6(A-D), the Supreme Court Per KUTIGI, J.S.C held that:
“It must be recognised that at the stage of a no case submission, the trial of the case is not yet concluded. At that stage therefore, the Court should not concern itself with the credibility of witnesses or the weight to their evidence even if they are accomplices. The Court should also at this stage be brief in its ruling as too much might be said which at the end of the case might fetter the Court’s discretion. The Court should again at this stage make no observation on the facts. (See for example R v. Ekanem (1950) 13 WACA 108, Chief Odofin Bello v. The State (1967) NMLR 1, R. v. Coker & amp Ors 20 NLR 62).”
See also INSPECTOR GENERAL OF POLICE v. MATHEW SONOMA (2021) LPELR-53381(SC) AT 15-16 (C-D).
As stated earlier, the appellant was charged for conspiracy, stealing and forgery. The duty of the Court at this stage is to see whether the evidence adduced by the prosecution prima facie established all the elements of each of the offences alleged to have been committed by the appellant.

In order to establish a prima facie case of conspiracy, the prosecution needs to prove that: (a) there was an agreement between the accused persons to do or cause to be done some illegal act or some act which is not illegal but by illegal means. (b) That some act besides the agreement was done by one or more of the accused persons in furtherance of the agreement. (c) That each of the accused persons individually participated in the conspiracy. The law is trite that the prosecution needs not to prove that the individuals were in direct communication with each other or directly consulting together but that they entered into an agreement with a common design. See MUSA V. STATE (2016) LPELR-42803 (SC) AT 25-26 (E-D).

The elements of the offence of stealing are: 1. Ownership of the thing stolen. 2. That the thing stolen is capable of being stolen. 3. The accused person has the intention of permanently depriving the owner of the thing stolen. 4. That the accused was dishonest. 5. That the accused unlawfully appropriated the thing stolen to his own use. See ADEJOBI & ANOR v. THE STATE (2011) LPELR-97(SC) AT 38-39 (G- B). AMAH V. FEDERAL REPUBLIC OF NIGERIA (SUPRA) AT 41 (C-E), 55(G-C). CHYFRANK NIGERIA v. FEDERAL REPUBLIC OF NIGERIA (2019) LPELR-46401(SC) AT 12 (C-E).

As regards the charge of forgery, Section 465 of Criminal Code Law, Cap C22, Volume 1, Laws of Delta State, 2006 provides that:
“A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Nigeria or elsewhere to the prejudice of any person, or with intent that any person may be in the belief that it is genuine, be induced to do or refrain from doing any act, whether in the state or elsewhere, is said to forge the document or writing…”
The elements of the offence of forgery are: 1. the making of a document or writing knowing it to be false. 2. That the accused forged the document in question. 3. The intent that it may be used or acted upon as genuine. See AWOBOTU V. THE STATE (1976) LPELR-649(SC) AT 31(C-F), MICHAEL ALAKE V. THE STATE (1992) LPELR-403(SC) AT 10 (B-C), NDOMA-EGBA V. AFRICAN CONTINENTAL BANK PLC (2005) LPELR-1973(SC) AT 21-22 (E-B), STANILAUS v. FEDERAL REPUBLIC OF NIGERIA (2020) LPELR-50793(CA) AT 7-8 (F-F).

I have carefully perused the entire evidence on record. None of the witnesses except PW7 and PW8, the IPO knew or had anything to do with the appellant. There is no scintilla of evidence from PW1-PW6 linking the appellant even remotely to the offences for which he was arraigned. PW7 said he knew the appellant but he did not say how, where and when he got to know him or that he had any dealing or was involved in any business or transaction with him. The only evidence given by PW8 in respect of the appellant is that he arrested the appellant based on the statement of the 1st accused person. He obtained the statements of the appellant admitted as Exhibits N and N1. Unfortunately, he could not be cross-examined by the appellant before his death. The position of the law on the evidence of a witness who died after his evidence in chief but before cross-examination was stated by the Supreme Court in OKWA V. IWEREBOR & ORS (1969) LPELR-25565(SC) AT 3-4 (B-D) Per ADEMOLA, J.S.C as follows:
“The law as to the position of evidence of a witness who died before cross-examination on his evidence in chief appears to be settled. It is clear that it is accepted that such evidence is legal but the weight to be attached to such evidence should depend upon the circumstances of each case. In Rex v. Doolin: Jebb C.C. 123 where a prosecution witness was taken seriously ill whilst under cross-examination, his evidence was taken into consideration, and the conviction based on it was held good. And in Davies v. Otty (1865) 34 L.J. Ch 252 where a witness gave her evidence on 28th August and she died two or three days afterwards so that it was not possible to cross-examine her on her evidence, Lord Romilly Master of the Rolls said:- “but as there was no impropriety and nothing wrong in examining her, and as she was not kept out of the way to prevent cross-examination, I must receive her evidence and treat it exactly as I should the evidence of any other witness who, from any other cause whatever, either had not been or could not have been cross-examined.”
All English authorities as well as Indian authorities on this point were referred to in the Indian case Kuer v. Rajab Ali, All I.R. (1936) Patna 34. In our judgment therefore, the learned judge was in error when he held that it was fatal for the plaintiff’s case that the learned magistrate relied on the evidence of the witness who died without being cross-examined on his evidence in chief.
See also OTOKI V. ALAKIJA (2012) LPELR- 7994 (CA) AT 15-20 (G-C), ONYENWE & ANOR V. ANAEJIONU (2014) LPELR-22495(CA) AT 36-37 (A- B), SALAU v. THE STATE (2019) LPELR-48114(SC) AT 10-11(G-A). On the authority of the above cases, I am the view that the correct position of the law on the evidence of a witness who dies before cross-examination is that the evidence is not rendered inadmissible or invalid or irrelevant. It is not the law that such evidence becomes automatically irrelevant and must be expunged from the record. Admissibility of the evidence already given by a witness not cross-examined before his death is not an issue, the probative value it may attract is the issue. Such evidence is legal but the weight to be attached to it depends on the circumstances of the particular case. See OKWA V. IWEREBOR & ORS (SUPRA). Since the Court is not concerned with the credibility of the witness or probative value of the evidence adduced but strictly whether there is legally admissible evidence on record which if believed at this stage establishes a prima facie case against the accused, the Court has no business looking into the probative value of the evidence of PW8 whether oral or documentary. That exercise is reserved for consideration during final judgment.

At the stage of no case submission all that the Court is concerned with is whether the evidence PW7 and PW8 and the appellant’s statements which had already been legally admitted established a prima facie case against the appellant to warrant proceeding with the trial.

I have perused the statements of the appellants on pages 78-85 of the record of appeal. It contains nothing which prima facie show that the appellant knew anything about a plan or design to forge the Bill of Laden, Exhibit A and to steal the containers alleged to have been stolen. There is nothing in the evidence on record from which the meeting of the mind of the appellant and other accused persons can be inferred. The respondent’s counsel submitted that the lower Court made an inference of conspiracy to commit forgery and stealing from the statements of the appellant and the other accused persons. The law is settled that an extra judicial statement by a co-accused remains his statement and not his evidence. It is binding on the maker only. See SUBERU V. STATE (2010) LPELR- 3120 (SC) AT 16 (AC). The appellant in his statements stated that one Emeka approached him for a loan to do an undisclosed business. He borrowed the said Emeka a sum of Ten thousand Naira (N10,000.00) only. He did not know whether the business involved a container or not and Emeka has paid the money he borrowed with interest. There is nothing in any of the appellant’s statements linking the appellant to the offence of stealing. No evidence establishing prima facie, the taking, converting and fraudulent conversion of the two containers or their contents by the appellant.

The most important element of the offence of forgery to be proved is that the accused forged the document in question. See ALAKE V. THE STATE (1992) LPELR-403(SC) AT 10 (C), IDOWU V. STATE (1998) LPELR-1428(SC) AT 8 (F-G). There is no scintilla of evidence that the appellant forged the Bill of Lading, Exhibit A which was used to clear the containers from the port or that he knew anything about the document. From the evidence on record, the appellant knew nothing about the document(s) alleged to have been forged. In ADEBAYO ADEYEMI v. THE STATE (1991) LPELR-172(SC) AT 50-51(B-A), the Supreme Court Per KARIBI-WHTYE, J.S.C stated the effect of the failure of the prosecution to make a prima facie case as follows:
“In Ajidagba v. I.G. of Police (1958) SCNLR 60, the Federal Supreme Court considering the effect of the making of a prima facie case and construing Section 286 of the Criminal Procedure Ordinance, adopted the meaning of the phrase prima facie in meaning of the phrase prima facie in the Indian case of Singh v. Jitendranathsen (1931) 1 LR 59 Calc 275. It was there said, “The term so far as we can find has not been defined either in the English or in the Nigerian Courts. In an Indian case, however, Singh v. Jitenddranthsen (1) we find the following dicta: “what is meant by prima facie (case)? It only means that there is ground for proceeding … But a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is guilty or not guilty, “(per Grose J) and “the 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” (per Lort- Williams, J. Accordingly where the prosecution has failed to make a prima facie case, sufficiently to require the accused to make his defence, the Court shall, and this is mandatory, discharge him as to that particular charge. See Ajidagba v. I.G. of Police (supra), Okoro v. State (1988) 12 SCNJ 191; (1988) 5 NWLR (Pt.94) 255 and R v. Plain (1967) 1 All ER.614. The words of Section 286 of the Criminal Procedure Law are clear and unambiguous in favour of such a construction.”

Thus, in the light of all that I have posited above, the sole issue adopted for the consideration of this appeal is resolved in favour of the appellant. I am of the firm view that the evidence adduced by the prosecution at the lower Court did not make out a prima facie case to warrant the appellant being called upon to enter his defence in respect of any of the offences charged. I find that this appeal is meritorious. It is hereby allowed. The ruling of the High Court of Delta State delivered in Charge No. W/1C/98 on 10/6/2012 by Onajite – Kuejubola J., wherein the appellant was called upon to enter his defence in respect of the offences of conspiracy, stealing and forgery is hereby set aside. The appellant’s no case submission is hereby upheld. The appellant is hereby discharged of all charges.

JOSEPH EYO EKANEM, J.C.A.: I have had a preview of a draft of the judgment of my learned brother, BOLAJI-YUSUFF, JCA, which has just been delivered. I agree with the reasoning and conclusion that the appeal is meritorious and should be allowed.

A submission of no case to answer may be properly made and upheld.
i) When there has been no admissible evidence to prove an essential element of the alleged offence either directly, circumstantially or inferentially.
ii) 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 can safely convict on it.
See Ibeziako v. C.O.P (1963) 1 All NLR 61 Abogede v. State (1996) 5 NWLR (Pt. 448) 270 and C.O.P. v. Amuta (2017) 4 NWLR (Pt. 1556) 379.

It needs be stated that in considering a no-case submission, the extra-judicial statement of a co-accused person is irrelevant unless it is shown that the accused person adopted it. See Section 29 (7) of the Evidence Act, 2011 and Suberu v. State (2010) LPELR-3120 (SC) page 15 or (2010) 8 NWLR (Pt. 1197) 386. When a no case submission is made, the trial Court is not called upon to express an opinion or make a finding on the evidence placed before it so far. It is only expected to determine whether or not there is legally admissible evidence linking the accused person with the commission of the offence with which he is charged. See Abru v. State (2011) 17 NWLR (Pt. 1275) 1. In this instance, there was no legally admissible evidence linking the appellant with the commission of the offences with which he was charged. The trial Court therefore ought to have discharged him. Calling upon him to enter his defence amounted to requiring him to prove his innocence which is contrary to the presumption of innocence provided for in Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See Suberu v. State Supra.

I therefore join my learned brother in allowing the appeal and setting aside the ruling of the trial Court. I also uphold the no case submission of the appellant and discharge him in respect of all the counts of the charge.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the advanced copy of the judgment just delivered by my learned brother MISTURA OMODERE BOLAJI-YUSUF JCA and I agree with the reasoning and conclusions therein and state that my Lord has covered the field and I have nothing more to add.

Appearances:

No Appearance For Appellant(s)

Olivia Agbajoh, with him, S.E.M. Oritsegbemi For Respondent(s)