C.O.P v. OKEKE & ORS
(2021)LCN/15140(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, March 11, 2021
CA/AW/146C/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. PROSPER OKEKE 2. SAMUEL ODOGWU 3. SCHOLASTIC 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 submission and the Appellant filed its reply accordingly.
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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 three issues for determination as follows:
1. “Whether actual and peaceable possession is an essential element in a charge of Forcible Entry to sustain same.
2. Whether the Court below was right in discharging the Respondents based on its findings on Count II of the Charge-Forcible Entry without taking into cognizance of the Prima Facie case against the Respondent in Counts I, III, IV and V respectively of the charge.
3. Whether the Court below was right in not restricting itself to the track of no-case submission being the fulcrum and
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bastion of the interlocutory appeal before it.”
Learned Counsel for the Respondent, C. N. Dike Esq., also distilled three issues for determination as follows:
1. “Whether the learned trial Judge at the lower Court was right when he held that the nominal complainant (Sir T. I. Nwadialor) was not in actual nor physical possession of the land.
2. Whether the learned trial Judge discharged the Respondent solely on his finding in Count II contained in the Charge Sheet.
3. Whether the learned Judge of the Court below expressed any opinion on the prosecution evidence on record which was outside the province of a submission of no case to answer.”
Learned Counsel for the Appellant N. A. Amuzie Esq., in his argument on the issues he raised contended that the case upon which charge of Forcible Entry can be sustained is actual and peaceable possession of which PW1 is to all intents and purposes, been in actual and peaceable possession of the said piece of land.
Counsel argued that in a no-case submission, what the Court below is enjoined to do is to restrict itself to determining the standard of proof which could only
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be determined at the end of full blown trial having listened to both sides. He cited FAGORIOLA V FEDERAL REPUBLIC OF NIGERIA (2013) VOL. 221 LRCN (PT.1) PAGE 4 PER ARIWOOLA, JSC.
He then prayed this Court to set aside the judgment of the lower Court and order the Respondent to enter his 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 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 and III. 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 three issues distilled by each Counsel are similar though couched differently. They could be compressed into one straight forward issue thus:
“Whether on the facts and circumstances
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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. The 1st Respondent’s defence was that of peaceable and actual possession of the land for which he was accused of entering forcibly.
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
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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
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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 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.
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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.”
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.
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.
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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 his 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.
PATRICIA AJUMA MAHMOUD, J.C.A.: Having read before now the 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.
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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)
