C.O.P v. OKEKE & ORS
(2021)LCN/15139(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, March 11, 2021
CA/AW/145C/2018
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Isaiah Olufemi Akeju Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
COMMISSIONER OF POLICE APPELANT(S)
And
1. SCHOLASTIC OKEKE 2. SAMUEL ODOGWU 3. PROSPER OKEKE 4. OBED OKEKE RESPONDENT(S)
RATIO
DUTY OF THE COURT WHERE, AT THE CLOSE OF THE CASE FOR THE PROSECUTION, A SUBMISSION OF NO CASE TO ANSWER IS MADE ON BEHALF OF THE ACCUSED PERSON
In a criminal trial such as this, at the close of the case for the prosecution, a submission of no case to answer made on behalf of the accused person postulates one or two things or both of them at once: a. Such a submission postulates that there has been throughout the trial no legally admissible evidence of whom the submission has been made, linking him in any way with the commission of the offence with which he had been charged, which would necessitate his being called upon for his defence; b. That whatever evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable Court can be called upon to act on it as establishing criminal guilt in the accused person concerned. Therefore, when a submission of no-case is made on behalf of an accused person, the trial Court is not thereby called upon at that stage to express any opinion on the evidence before it. The Court is only called upon to take note and to rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. See IGABELE V. THE STATE (2004) 15 NWLR (PT. 896) 314; AITUMA V. THE STATE (2007) 5 NWLR (PT. 1028) 466. It should be noted that what is required at the stage of overruling a no-case submission is not proof beyond reasonable doubt, but that something has been said, produced or adduced by the prosecution to justify continuing with the trial with a view to looking into the evidence of the prosecution properly. It simply means that there is room for further inquiry into the case. When a Judge is called upon to rule on a no-case submission, what is going through the mind of the Judge at that stage is not necessarily to believe the evidence of the prosecution or not. At that stage, the question the Judge must ask himself is assuming the case of the prosecution is believed, does the accused have any explanation to make? Whether or not the Court believes the evidence of the prosecution or the credibility of the witnesses also does not arise at that stage since the case was still inconclusive. The time to believe the witnesses or not, attach credibility or not is definitely not at the stage of no-case submission. It is rather a period where the Court declares or rules that there is reason or justification to make further inquiry with a view to determining the guilt or innocence of the accused person/persons. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
WHETHER IT IS NOT OPEN FOR THE COURT TO PICK AND CHOOSE BETWEEN THE TESTIMONIES, WHEN THE TESTIMONIES OF PROSECUTION WITNESSES CONFLICT
The Supreme Court echoed this in COMMISSIONER OF POLICE V. MR. EMMANUEL AMUTA (2017) LPELR – 41386, PG. 86 thus: “When the testimonies of prosecution witnesses conflict, it is not open for the Court to pick and choose between the testimonies or to credit one witness and discredit the other unless a proper foundation is laid for such a case.” PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
WHETHER WEIGHT CAN BE ATTACHED TO THE TESTIMONY OF THE WITNESSES AT THE PREMATURE STAGE OF A NO-CASE SUBMISSION
The time to attach weight to the testimony of the witnesses is at the close of trial after listening to both parties. It is definitely not at the premature stage of a no-case submission. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant filed this Appeal against the Judgment of the High Court of Anambra State, sitting at Ihiala Coram J. I. Nweze J, delivered on the 21st day of June, 2018.
SUMMARY OF FACTS:-
The Respondent along with others were arraigned at the Chief Magistrate Court Ihiala on the 8th of July, 2016 on a four (4) count charge of conspiracy, forcible entry, conspiracy and malicious damage punishable under Sections 496, 115, 495 and 415 (f) respectively of the Criminal Code, Cap 36, Vol. II of the revised Laws of Anambra State of Nigeria, 1991 as amended. The Respondents pleaded not guilty to all the counts of the charge.
On the 14th day of December, 2016, the Appellant amended the Charge to add a fifth count of disobedience to judgment of the High Court Coram C. E. K. Anigbogu, J, punishable under Section 185 of the same Criminal Code. The Respondents also pleaded not guilty.
The Appellant called three witnesses and tendered seven Exhibits and thereafter closed its case. At the close of the Appellant’s case, the Respondents filed a No-case
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submission and the Appellant filed its Reply accordingly.
In a considered Ruling, the learned Chief Magistrate overruled the No-case submission and ordered the Respondents to enter their defence.
The Respondents appealed against the Ruling of the trial Chief Magistrate at the High Court. On the 21st day of June, 2018, the High Court of Anambra State Ihiala Division sitting in its Appellate Jurisdiction allowed the Appeal and set aside the Ruling of the trial Chief Magistrate on the No-case submission.
This Appeal is predicated on the said Judgment.
Learned Counsel for the Appellant, N. A. Amuzie Esq., distilled a sole issue for determination thus:
“Whether the Court below was right in relying only on the evidence of the PW3 without taking into cognizance the evidence of PW1 and PW2 vis-à-vis the totality of the Appellant’s evidence in arriving at its decision in finding for the Respondents.”
Learned Counsel for the Respondent, C. N. Dike Esq., also distilled a sole issue for determination thus:
“Whether the lower Court was right to have discharged the Respondent on all the Five counts contained
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in the charge sheet upon which she was arraigned before the Chief Magistrate Court Ihiala.”
Learned Counsel for the Appellant N. A. Amuzie Esq., in his argument on the issue he raised contended that the plea of alibi which the Court below found for the Respondent does not apply to the counts of conspiracy in the charge to wit. Counts I & III as the parties to the offence of conspiracy could reach a consensus ad idem to carry out an illegal act without their being physically present at the locus criminis. He cited TAOFEEK ADELEKE V. THE STATE (2014) VOL. 230 LRCN 161 AT 168 per PETER-ODILI JSC.
Counsel argued that the lower Court misdirected itself by being carried away by the flashlight of Alibi, without taking into cognizance the peculiar circumstance of each count of the charge particularly counts I & III. He then prayed this Court to set aside the judgment of the lower Court and order the Respondent to enter her defence at the Chief Magistrate Court Ihiala.
Reacting to the foregoing, learned Counsel for the Respondent, C. N. Dike Esq., submitted, in summary, that there was no evidence before the lower Court from where the lower
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Court could have inferred an agreement between the Respondent and others to do an unlawful act or lawful act by an unlawful means.
Counsel contended that the lower Court was well within the Law in dismissing the No-case submission and discharging the 1st Respondent from all the Counts including Counts I & III as the said 1st Respondent was in Imo State at the time the alleged offence was committed in Umudara Ihite in Ihiala Anambra State. He urged the Court to dismiss this appeal and affirm the decision of the lower Court in its judgment upholding the No-case submission.
The sole issue distilled by each Counsel is similar though couched differently. It could be compressed into one straight forward issue thus:
“Whether on the facts and circumstances of this case, the learned trial Judge was right in upholding the No-case submission and proceeded to discharge the Respondent on all the five counts.”
This Appeal basically revolves round the No-case submission made by the Respondents (as Defendants) at the Chief Magistrate Court which the learned trial Chief Magistrate dismissed, while the learned trial Judge upheld same.
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The 1st Respondent’s defence was that of Alibi where she stated that at the time the alleged offences were committed, she was in Isu Njaba in Imo State from the 13th day of August, 2016 to the 30th day of September, 2016. That she travelled to Isu Njaba to look after her sick mother.
In a Criminal trial such as this at the close of the case for the prosecution, a submission of no case to answer made on behalf of the accused person postulates one or two things, or both of them at once:
a. Such a submission postulates that there has been throughout the trial no legally admissible evidence of whom the submission has been made, linking him in any way with the commission of the offence with which he had been charged, which would necessitate his being called upon for his defence;
b. That whatever evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable Court can be called upon to act on it as establishing criminal guilt in the accused person concerned. Therefore, when a submission of No-case is made on behalf of an accused person, the trial Court is not thereby called upon at that
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stage to express any opinion on the evidence before it. The Court is only called upon to take note and to rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged.
See IGABELE V. THE STATE (2004) 15 NWLR (PT. 896) 314, AITUMA V. THE STATE (2007) 5 NWLR (PT. 1028) 466.
A defence of Alibi by an accused person as raised by the Respondent in this Appeal at the Chief Magistrate Court is a combined defence of lack of “actus reus” and “mens rea” i.e that he or she was not at the scene of the crime and was therefore, neither in a position to have committed the offence alleged nor participated in its commission nor even had the intention of committing the crime. Therefore, being a matter of fact peculiarly within his personal knowledge, an accused who raises it has the burden of leading evidence of the fact of the Alibi, even though the primary or general burden of the proof of guilt remains throughout on the prosecution and does not shift.
See UKWUNNENYI V. STATE (1989) 4 NWLR (PT. 114) PG. 131 at 144.
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The Respondent in her extra Judicial Statement made to the Police on the 2nd day of October, 2016 stated that she travelled to Isu Njaba in Imo State between the 13th day of August, 2016 to 30th day of September, 2016. This defence of Alibi was never investigated by the Police in the sense that the Police never took a trip to Isu Njaba to verify that statement and that defence. PW3 in his testimony only stated that it could not be proved that the Respondent and others were among the persons who damaged the palm trees as they were not physically present at Umudara Ihiala on the 25th day of August, 2016. This is no investigation of the defence of Alibi at all.
It should be noted that what is required at the stage of overruling a No-case submission is not proof beyond reasonable doubt, but that something has been said, produced or adduced by the prosecution to justify continuing with the trial with a view to looking into the evidence of the prosecution properly. It simply means that there is room for further inquiry into the case. When a Judge is called upon to rule on a No-case submission what is going through the mind of the Judge at that stage is not
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necessarily to believe the evidence of the prosecution or not. At that stage the question the Judge must ask himself is assuming the case of the prosecution is believed, does the accused have any explanation to make?
Whether or not the Court believes the evidence of the prosecution or the credibility of the witnesses also does not arise at that stage since the case was still inconclusive. The time to believe the witnesses or not, attach credibility or not is definitely not at the stage of No-case submission.
It is rather a period where the Court declares or rules that there is reason or justification to make further inquiry with a view to determining the guilt or innocence of the accused person/persons.
The evidence of PW1 and PW2 are quite detailed touching the five counts of the charge against the Respondents. The evidence of PW3 who did not investigate the defence of Alibi put up by the Respondent Scholastica Okeke by visiting the said Isu Njaba in Imo State should not be singled out at this stage since the trial is still inconclusive and the time to believe or disbelieve is definitely not at the stage of a No-case submission.
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The evidence of PW1 and PW2 made reference to conspiracy, forcible entry, malicious damage as well as disobedience to the Judgment of the High Court. No reasonable Court after listening to the evidence as presented by the prosecution in this case will not see the need to make further enquiry to see the justification to dig deeper.
The Supreme Court echoed this in COMMISSIONER OF POLICE V. MR. EMMANUEL AMUTA (2017) LPELR – 413, PG. 86 thus:
“When the testimonies of prosecution witnesses conflict, it is not open for the Court to pick and choose between the testimonies or to credit one witness and discredit the other unless a proper foundation is laid for such a case.”
The time to attach weight to the testimony of the witnesses is at the close of trial after listening to both parties. It is definitely not at the premature stage of a No-case submission.
The learned trial Judge relied so much on the evidence adduced by the prosecution at that premature stage concluding hastily that the prosecution did not make a prima facie case enough to warrant the Respondents to enter a defence.
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From the evidence of the prosecution witnesses, it is my humble but firm view that a prima facie case is made out against the Respondents at the Chief Magistrate Court sufficiently to require the Respondent enter a defence.
In the premise, the sole issue is resolved against the Respondent and in favour of the Appellant. There is merit in this Appeal and it is hereby allowed.
The Judgment of J. I. Nweze, J., of the Ihiala Division of the Anambra State High Court delivered on the 21st day of June, 2018 in Suit No HIH/10CA/2018 is hereby set aside. The Respondent is to enter her defence at the Chief Magistrate Court Ihiala in Charge No MIH/407C/2016.
C. O. P. V. Samuel Odogwu & Ors. The case file is therefore to be remitted to the Chief Judge of Anambra State to either assign this case to the same Chief Magistrate if he is still available, or direct the Chief Registrar to do the needful.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had a preview of the judgment of my learned brother, CHIOMA NWOSU-IHEME, JCA. I agree with the reasoning of my learned brother as well as the conclusion that the appeal is meritorious and I allow it. I abide by the consequential orders.
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PATRICIA AJUMA MAHMOUD, J.C.A.: Having read before now the lead judgment of my learned brother, CHIOMA NWOSU-IHEME, JCA, I entirely agree with his reasoning and conclusions.
For the same reasons contained in the lead judgment which I adopt as mine, I hold that this appeal has merit and I allow it.
Consequently, the judgment of the lower Court delivered by Hon. Justice J. I. Nweze is hereby set aside.
I also abide by the consequential order that this case be remitted to the Hon. Chief Judge of Anambra State for redirection to the Chief Magistrate Court for conclusion of the Respondent’s prosecution or trial de novo as appropriate.
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Appearances:
O. Ezema For Appellant(s)
N. Dike For Respondent(s)
