C.O.P v. ONUORAH
(2020)LCN/14491(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Friday, July 17, 2020
CA/AW/143C/2018
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
THE COMMISSIONER OF POLICE APPELANT(S)
And
CHIOMA ONUORAH RESPONDENT(S)
RATIO
WHETHER OR NOT SUBMISSION OF NO CASE WILL BE UPHELD WHERE THE EVIDENCE LED BY THE PROSECUTION DOES NOT DISCLOSE A PRIMA FACIE CASE AGAINST THE ACCUSED
It is trite that submission of “no case” will be upheld where the evidence led by the prosecution does not disclose a prime facie case against the accused.
And a prime facie case is disclosed where the evidence available (whether direct or circumstantial) covers the essential elements of the offence charged, and is such that if it is undenied or unexplained, by the defence, and is believed by the Court, it would be sufficient to prove the guilt of the accused.
The issue whether a prima facie case is disclosed, has nothing to do with the weight of evidence or the credibility of witnesses, as these issues do not arise at this stage.
In other words, whether a prima facie case has been disclosed is different from whether a charge has been proved. One is considered at the close of the prosecution’s case, while the other can only be considered after the defence has also led evidence, except where the defence rests its case on that of the prosecution GODWIN DABOH V THE STATE 1977. 5 S.C 209@211. PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the decision of the High Court of Justice, Anambra State, holden in Onitsha, which was delivered on the 30th of January, 2018 in Appeal No. O/2CA/2017, upholding the no case submission by the Respondent’s counsel in charge No. MO/237C/2014.
The Respondent was discharged and acquitted – Pages 273 – 300; 256 and 272 of the Record of Appeal.
FACTS LEADING TO THIS APPEAL
The Respondent was a sales girl to one Nathan Okechukwu Okafor. In the cause of the job, some amount of money got missing after stock taking. Nathan made a complaint to the Police against the Respondent for fraudulent conversion.
The Respondent was charged to Court for fraudulent conversion.
At the close of the case for the prosecution, learned Counsel to the Respondent raised a no case submission.
On the 29th of August 2016, the learned Chief Magistrate upheld the no case submission made by the Respondent.
The Appellant dissatisfied with the Ruling of the learned trial Magistrate filed a Notice of Appeal with three grounds of Appeal – Pages 47 to 58
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of the Record of Appeal.
The High Court in its appellate jurisdiction entertained the appeal and on the 30th of January 2018, it upheld the decision of the learned trial Magistrate Court – Pages 256-272 of the Record of Appeal.
With the leave of the Court below, the Appellant filed a Notice of Appeal – Pages 273 – 300 of the Record of Appeal encapsulating four (4) Grounds of Appeal to this Court.
The Appellate filed his brief of argument on the 29th of January 2019. It is settled by J.O. Onwujekwe Esq, while the Respondents brief of Argument was filed on the 22nd of February 2019. It is settled by S.O. I. Nkem Esq.
Four issues were distilled by the Appellant from his Notice and Grounds of Appeal. They are:
1. WHETHER THE TRIAL COURT CORRECTLY INTERPRETED THE PROVISION OF RULE 10 R.P.C.L.P 2007 AS IT RELATES TO THE ATTORNEY GENERAL OF ANAMBRA STATE VIZ-A-VIZ THE PROVISIONS OF SECTION 211(1) (A), (B) (C), (2) AND (3) OF THE CONSTITUTION F.R.N 1999 (AS AMENDED) AND THE JUDICIAL AUTHORITIES OF A.G. FEDERATION VS A.N.P.P. (2003) 18 NWLR (pt. 851) 182 – 194; SALEH VS ABAH (2017)12 NWLR (PT. 1578), DUKE VS AKPABUYO L.G
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(2005) 19 NWLR (PT. 959)13 AND INDEPENDENCE TELEVISION/RADIO VS EDO STATE BOARD OF INTERNAL REVENUE (2015)12 NWLR (PT.1474) 450. GROUND 1.
2. WHETHER THE COURT BELOW WAS RIGHT IN HOLDING THAT THE CHARGE WAS BAD FOR DUPLICITY WHEN THERE WAS NOTHING ON RECORD TO SHOW THAT THE RESPONDENT WAS MILED OR SUFFERED A MISCARRIGE OF JUSTICE (GROUND 2).
3. WAS THE COURT BELOW NOT WRONG IN HOLDING THAT THE TRIAL COURT DID NOT CONSIDER THE CREDIBILITY OF WITNESSES IN A LENGTHY RULING AND THAT THE LENGTHY RULING DID NOT VITIATE THE VALIDITY OF THE RULING ON NO CASE SUBMISSION OF 29/8/2016. (GROUND 3).
4. WHETHER FROM THE TOTALITY OF THE EVIDENCE PROFFERED ON RECORD, THE COURT BELOW WAS NOT WRONG WHEN IT HELD THAT A PRIMA FACIE CASE WAS NOT MADE OUT AGAINST THE RESPONDENT TO REQUIRE SOME EXPLANATION FROM THE RESPONDENT. (GROUND 4)
The Appellant seeks to argue all the above issues together.
It is his argument he submits that the Court below erred, holding that the fiat tendered by the Prosecuting Counsel was voidable because the Honourable, the Attorney General of Anambra State did not affix the NBA stamp and seal contrary to the provisions of
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Section 211(1), (A) (B) (C) (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Submits that there is a difference between the office of the Attorney General of Anambra State and the Honourable Attorney General in person.
That the fiat, captured the Government of Anambra State of Nigeria dated 9th January 2017, is not in the personal capacity of the human Attorney General. She is not in the capacity as Counsel and therefore there is no legal requirement of affixing a public servant (RED STAMP) NBA STAMP and SEAL.
Citing SALEH VS ABAH (2017)12 NWLR (Part 1578)114, he submits that the human Attorney General can be removed from office at any time, but the office of the Attorney General enjoys perpetual succession and corporate seal and the office remains ad infinitum.
That the provisions of Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners states thus:
“A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any governmental department or Ministry, or any Corporation shall all not sign or file a legal document unless there is affixed on such
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document a seal and stamp approved by the Nigerian Bar Association”.
10(2) “For the purpose of this rule, legal documents shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents”.
He submits that if any other law is inconsistent with the provisions of Section 1(3) of the Constitution of the Federal Republic of Nigeria, the provisions of the Constitution shall prevail, and that other law shall be to the extent of the inconsistency void.
Submits that the fiat is valid.
That Section 211(1) (A) (B) (C) 2 and 3 of the Constitution gives the Attorney General through J.O. Onwujekwe Esq, the fiat to take over and continue, or to discontinue such proceedings.
Learned Counsel submits that a charge that is bad for duplicity does not necessarily invalidate the charge, or the trial, except where there is occasioned miscarriage of justice. Citing AWOBOTU V THE STATE (1976) 5. S.C. 49; ONWAKOYA VS F.R.N (2003) 6.S.C (Part 11)220; ONASILE V SAMI (1962)1 All. NWLR 272 S.C.
Submits that the learned trial Judge erred in law
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when he held that the lower Court did not consider the credibility of witnesses in a lengthy ruling on the submission of “no case”.
That all that is required, when a no case submission is raised is to make out a prima facie case, which means that “there is a ground for proceeding in the trial” AJIDAGBA & ORS V INSPECTOR GENERAL OF POLICE 1958 SCNLR. 60. He submits that there was no discredited evidence of the prosecution upon which the lower Court acted – DABOH V STATE (1977) ALL NLR. 146.
He submits that the Court below erred in law when he held that the Appellant did not establish a prima facie case, sufficient to warrant the Respondent to enter a defence to the charge.
That in law, in the efforts to establish whether a prima facie case exists, the Court must not delve into the facts and evidence needed to prove the commission of the offence – NWADIKE V STATE (2015) LPELR 24550; APUGO V F.R.N (2017) 8 NWLR (PT. 1568)422.
The issues shall be resolved together as they were argued together.
There is a difference between the office of the Attorney – General of Anambra State and the Honourable
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Attorney General in person.
There is no public servant (red stamp) of NBA stamp and seal of the Attorney General of Anambra State in the Fiat to prosecute Charge NO MO/237C/2014 which was issued to learned Counsel for the Appellant. J.O. Onwujekwe Esq.
The section of the Constitution which puts in place the Anambra State of Nigeria is Section 3(1)(2) and (3) and 319 of the 1999 Constitution (as amended) FRN. Section 211 (1) (A) (B) (C) (D), (2) and (3) of the Constitution contemplates the office of the Attorney General and Commissioner for justice. This office is vested both with perpetual Succession and Corporate seal. It can sue and can be sued.
However, there is a human Attorney General who occupies that office. She is there temporarily and can be removed at any time by her appointor, but the office of the Attorney General remains – SALEH V ABAH (2017) 2 NWLR (pt. 1578)114.
Section 211(1) (A) (B) (C); (2)and (3) of the Constitution gives the Attorney General, through J. O. Onyejekwe Esq. the fiat to take over and continue or to discontinue any criminal proceedings. Therefore, the office of the Attorney General and the fiat are
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mutually exclusive.
One has a seal and the other does not require a seal. The fiat given to J. O. Onyejekwe is valid. The argument of the Learned Counsel for the Appellant is misconceived.
It is an elementary principle of law that when a charge is bad for duplicity, that irregularity does not vitiate the charge. As long as the defect does not occasion miscarriage of justice; that suffices.
On the 18th of December 2014, from records, the charge was read to the defendant in English language and she pleaded not guilty to the charge.
Nowhere did she complain that the charge was bad for duplicity, or that she was misled or occasioned miscarriage of justice – ONASILE V SAMI (1962) (Supra); ONAKOYA V F.R.N 2003 (Supra), AWOBOTU V THE STATE (1976)5. S.C. 49. The effect of non-compliance with above will not vitiate a conviction.
There was nothing to show that the defendant was prevented from putting his defences to the various offences lumped together and this was not the case there from records the defendant was represented in Court and his Counsel did not object to the charge, before or after plea was taken.
The trial Magistrate did
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not find it inconvenient to assume jurisdiction over the matter. In fact, the defendant was granted bail.
It is trite that submission of “no case” will be upheld where the evidence led by the prosecution does not disclose a prime facie case against the accused.
And a prime facie case is disclosed where the evidence available (whether direct or circumstantial) covers the essential elements of the offence charged, and is such that if it is undenied or unexplained, by the defence, and is believed by the Court, it would be sufficient to prove the guilt of the accused.
The issue whether a prima facie case is disclosed, has nothing to do with the weight of evidence or the credibility of witnesses, as these issues do not arise at this stage.
In other words, whether a prima facie case has been disclosed is different from whether a charge has been proved. One is considered at the close of the prosecution’s case, while the other can only be considered after the defence has also led evidence, except where the defence rests its case on that of the prosecution GODWIN DABOH V THE STATE 1977. 5 S.C 209@211.
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A painstaking look at the Ruling of the learned trial Judge on the no case submission, shows that he did not delve into any forbidden area, than the facts whether there exists a prima facie case from the evidence already adduced by the prosecution, particularly where there is no discredited evidence of the prosecution upon which the Court below acted – DABOH V STATE (1977) All NLR 146. The Court below in my view made findings and reached conclusion on the evidence called by the prosecution and before the defendant made his defence.
It is not in all cases that the length of the ruling will affect the judgment on no case submission. Where the judge intends to uphold the no case submission, he is at liberty to give details of his reasoning in the ruling, this is because it will amount to final judgment of the Court.
The totality is that all the issues are resolved in favour of the Appellant and against the Respondent. The Appeal is hereby allowed.
The judgment of the Court below delivered on the 30th of January 2018 is hereby set aside.
The case shall be remitted back for retrial at the Court below by the Chief Judge of Anambra State.
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CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the honour of reading in advance the judgment pronounced by my learned brother, R. N. PEMU, JCA, with which I agree and adopt as mine.
I endorse the conclusion of the lead judgment that the judgment of the High Court in its Appellate jurisdiction delivered on the 30th of January, 2018 be set aside.
I also agree that the case be remitted back to the Chief Judge of Anambra State for continuation of trial/retrial.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
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Appearances:
J.O. ONWUJEKWE, ESQ. For Appellant(s)
S.O.I. NKEM, ESQ. For Respondent(s)
