COP v. ODOGWU & ORS (2020)

COP v. ODOGWU & ORS

(2020)LCN/14486(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Thursday, July 09, 2020

CA/AW/144C/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

COMMISSIONER OF POLICE APPELANT(S)

And

1. SAMUEL ODOGWU 2. SCHOLASTICA OKEKE 3. PROSPER OKEKE 4. OBED OKEKE RESPONDENT(S)

RATIO

CONDITION FOR A NO-CASE SUBMISSION TO BE UPHELD

For a no-case submission to be upheld it must be shown that the prosecution failed to prove essential ingredients in all the five counts. It could also be sustained where the evidence of the prosecution had been so discredited that no reasonable tribunal could convict on it.
See IBEZIAKO V. C.O.P. (1963) SCNCR. PAGE 99. PER NWOSU-IHEME, J.C.A.

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant herein filed this appeal against the judgment of the Ihiala division of the Anambra State High Court delivered by J. I. Nweze, J, on the 30th day of July, 2018 in charge No HIH/8CA/2018.
In a considered Judgment the learned trial Judge set aside the Ruling of the Chief Magistrate which overruled the no case submission of the Respondent.
This appeal revolves round the said Judgment.

SUMMARY OF FACTS:
The Respondents were arraigned before a Chief Magistrate Court Ihiala on the 8th day of July, 2016 on a Four (4) count charge of conspiracy, forcible entry, conspiracy and malicious damage respectively, punishable under Sections 496, 115, 495 and 415 (f) respectively of the Criminal code, Cap 36, Vol II Laws of Anambra State, 1991.

The Respondents pleaded not guilty.
On the 14th 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 said Criminal Code. The Respondents pleaded not guilty to all the counts.

At the close

of the Appellant’s case, the Respondents made a no case submission. The Magistrate overruled the no case submission holding that the Appellant has succeeded in making a Prima facie case requiring the Respondents to enter their defence.

The Respondents filed an interlocutory appeal at the High Court against the Ruling on the no case submission.

The High Court sitting in its Appellate jurisdiction allowed the appeal and proceeded to set aside the Ruling on the no case submission.
Aggrieved by that Judgment and exercising his constitutional right, the Appellant has appealed to this Court. Learned Counsel for the Appellant N. A. Amuzie Esq formulated three issues for determination thus:
1. “Whether actual and peaceful 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 consideration the prima facie case against the Respondents 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 bastion of the interlocutory appeal before it.”

Learned Counsel for the Respondent C. N. Dike Esq also distilled three issues for determination thus:
1. “Whether the learned Judge of the lower Court was right when he held that the nominal complainant (Sir T. I. Nwadialor) was not in actual or 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.”

In his brief of argument, learned Counsel for the Appellant submitted in summary referring to Section 115 of the Criminal Code Cap. 36, Vol. II of the Revised Law of Anambra State 1991 that forcible entry can be sustained by actual and peaceable possession by the informant in a charge.

Counsel argued that the manner of entry by the Respondents was likely to cause a breach of the peace or reasonable apprehension of a breach of the

peace. He cited OKOTIE – EBOH & ORS V. DPP (1962) NSCC. 235. SC.
He contended that in an interlocutory appeal of this nature premised on a no-case submission, the trial Court ought to restrict itself to the no-case submission which is establishing a prima facie case against the Respondents. He cited FAGORIOLA V. FEDERAL REPUBLIC OF NIGERIA (2013) Vol. 221 LRCN (PT. 1) PG. 1 at Page 4.

Reacting to the foregoing, learned Counsel for the Respondents argued that the evidence of the prosecution had been so discredited under cross-examination that no reasonable tribunal could safely have convicted on it. He referred to the evidence of PW3 the Investigating Police Officer. He posited that for the prosecution to make out a prema facie case against a defendant, such must be to the satisfaction of the Court. Therefore, he argued further, the learned trial Judge did not go beyond its boundaries in what was required of a trial Court in a no-case submission matter before the Court. He cited OSSAI EMEDO & ORS V. The STATE S. C. 234/2001. ANAGBADO V. FARUK (2019) 1 NWLR (PT. 1653) 292. BAMGBOYE V. OLUSOGA (1996) 4 NWLR (PT. 444) PG. 520. He then urged

this Court to dismiss the appeal. In dealing with this appeal, I shall make use of the three issues as formulated by Counsel for the Appellant. I shall however take the issues together.

This appeal revolves round the issue of no-case submission. Let me therefore touch on the essence of a no-case submission. It should be noted that what is required at the stage of 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.

Going through the evidence of PW1 and PW2 at pages 12 – 29 of the Record of Appeal, no reasonable Court after listening to the above evidence as presented by the prosecution at the Chief Magistrate Court will not see the need to make further enquiry or to see the justification to dig deeper.

From the testimonies of PW1 and PW2 certain questions became inevitable that needed to be answered by the Respondents (as accused persons) that would have thrown more light on the case and paint a better picture of the case before the Chief Magistrate Court.

In allowing the Appeal, the learned trial Judge at page 193 of the Records held as follows:
“…As observed above, the PW1 and PW2 placed Scholastica Okeke at the scene of the crime with the other defendants, including the Appellant

herein. Scholastica Okeke pleaded an alibi. The Police investigated her alibi and found that of a truth, she was not at the scene of crime on that day. That piece of evidence by the Police has so discredited the evidence of the prosecution that no reasonable tribunal could convict on it. The PW1 and PW2 placed Scholastica Okeke at the scene of crime together with the appellant, when they know that Scholastica Okeke was not there. How could any reasonable tribunal believe them that the appellant was at the scene of crime as well? The Court must treat the evidence of PW1 and PW2 as totally discredited…”

It is on record that the Respondents were arraigned on a Five count charge. It is rather curious that the learned trial Judge concentrated on Count II and completely ignored counts I, III, IV and V. What was before the High Court was an appeal on a no-case submission in respect of the five counts. It was erroneous for the trial Court to uphold the submission of no-case by merely choosing just one out of the entire Counts. The standard of proof would only be determined at the end of the trial and not at that stage. Some of the findings of the

learned trial Judge were conclusions that could only be made at the end of the trial and it is only then that the prosecution is required to prove its case beyond reasonable doubt.

The learned trial Judge in my humble but firm view over-stepped his bounds by digging deep into the matter which was rather pre-mature.

It is my humble but firm view that this is not the situation in the instant appeal. Rather in this appeal, it is obvious from page 193 of the Records already reproduced above that the learned trial Judge rather than limit himself to the issue before the Court which was the no-case submission delved into the main case which I consider rather premature for the simple reason that the time to do so was definitely not at that stage.

In the premise, there is merit in this appeal and it is hereby allowed. The three

issues are resolved against the Respondents and in favour of the Appellant. Accordingly, the Judgment of the Ihiala Division of the Anambra State High Court delivered on the 30th day of July, 2018 by J. I. Nweze, J, in charge No HIH/8C/2018 is hereby set aside. The Ruling on the no-case submission delivered by Chief Magistrate A. C. Nwankwo on the 21st day of December, 2017 is hereby affirmed.

The Appellant has made a prima facie case requiring the Respondents as accused persons to enter their defence.

Accordingly, this case is remitted to the Chief Judge of Anambra State for continuation before Chief Magistrate A. C. Nwankwo. Considering the number of years lost, it is only if it is not possible for the said A. C. Nwankwo to continue with the trial that it should be assigned to another Magistrate for trial de novo.

It is hereby ordered that this case be given accelerated hearing at the Magistrate Court.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother CHIOMA NWOSU—IHEME (Ph.D) J.C.A.

I agree with her reasoning and conclusions. The appeal is allowed by me. The Judgment of

Anambra State High Court, Ihiala division delivered by J.I. Nweze J. on the 30th of July, 2018 in Charge NO: HIH/8CA/2018 is hereby set aside.

It is hereby ordered that the case be remitted back to the Chief Judge of Anambra State for continuation before the Chief Magistrate A.C. Nwankwo or any other Magistrate for trial de novo.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.

Appearances:

J. Ezeugwu For Appellant(s)

C. Kalu holding the brief of C. N. Dike For Respondent(s)