DELE FAGORIOLA v. FEDERAL REPUBLIC OF NIGERIA
(2010)LCN/3771(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of May, 2010
CA/B/142c/2007
RATIO
WORDS AND PHRASES: MEANING OF NO CASE SUBMISSION
This court in its decision on the meaning of no case submission and quoting the case of R. v COKER & ORS 20 NLR 62 where Hubbard J put it clearly that a submission that there is no case to answer means that there is no evidence on which the court would convict even if the court believed the evidence given by the prosecution. PER GEORGE OLADEINDE SHOREMI, J.C.A.
ACTION: SITUATION WHERE NO CASE SUBMISSION WILL BE UPHELD
No case submission may be upheld where:
(a) There was no evidence to prove an essential element of the alleged offence
(b)The evidence adduced has been so discredited as a result of cross-examination.
(c) The evidence is so manifestly unreliable that no reasonable tribunal can safely convict on it and further if however a reasonable tribunal can convict on evidence so far led, there is a case for the accused to answer. PER GEORGE OLADEINDE SHOREMI, J.C.A.
ACTION: NO CASE SUBMISSION; CIRCUMSTANCES OF NO CASE SUBMISSION
The Locus Classicus on no case submission is found in the case of AJIDAGBA & ORS v. I.G.P (1958) 3 FSC 5 where it was held that – A decision to discharge an accused person on the ground that a prima facie case has not been made against him must be a decision which, upon a clam view of the whole evidence offered by the prosecution, a rational understanding will suggest; the conscientious hesitation of a mind that is not influenced by party, preoccupied by prejudice or subdued by fear. In F.R.N. v. EKWENUGO (2007) 3 NWLR Pt 1021 at pages 209-218 this court held that it is only if there is no sufficient evidence linking the accused with the statutory elements of the offence with which he is charged that a court of trial must as a matter of law discharge him.
Before coming into a conclusion that an accused has a case to answer, the trial court must be satisfied that there is in law, a nexus behind the criminal conduct and the offence the accused is charged with and this must be apparent on the face of the evidence led by the prosecution. The prosecution must be at this stage prove the essential element in the alleged offence.
In MOHAMMED v. THE STATE (2007) NWLR Pt 1032 pages 152-163 the Supreme Court held that a submission of no case may be properly upheld when –
(a) There has been no evidence to prove an essential element of the alleged Offence.
(b) The evidence adduced by the prosecution has been so manifestly discredited as a result of cross-examination or manifestly unreliable that no tribunal could safely convict on it.
Where a no case submission is made particularly when Counsel indicates intention not to rely on same what is to be considered by the court is not whether the evidence produced by the prosecution against the accused is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring at least, some explanation from the accused person as regards his conduct or otherwise. PER GEORGE OLADEINDE SHOREMI, J.C.A.
JUSTICES
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
DELE FAGORIOLA – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s
GEORGE OLADEINDE SHOREMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the refusal of the lower court to grant the application made on behalf of the Appellant by his Counsel for a no-case submission after the close of the case for the prosecution.
The Appellant, Chairman of Akure North Local Government Ondo State was arraigned and being tried at the High Court of Justice Akure, Ondo State on a 9 count charge of conferring corrupt advantage upon himself and his wife by approving and receiving various sums of money from the Local Government for conferences, seminars and workshops which the prosecution claimed the Appellant did not attend and to which his wife was not entitled.
The charge was brought under S.19 of the Corrupt Practices and Other Related Offences Act 2000 against the Appellant by the Independent Corrupt Practices and Other Related Offences Commission I.C.P.C. following the petition it purportedly received from the State Security Services S.S.S allegedly based on the Audit Report of the Local Government Finances between June 2003 and 2004.
The Respondent called 8 witnesses and tendered many documents while some documents Exhibits Z12-18 were tendered by the Appellant through the prosecution witness No.8 during cross-examination recognizing the position of Chairperson in the Local Government and its entitlement to certain benefits.
At the conclusion and close of the case for the prosecution, the Appellant through his counsel made a no-case submission pursuant to S.286 of the Criminal Procedure Law Cap C31 Laws of Ondo State of Nigeria 1978, on the ground that the prosecution failed to establish the essential elements of the offence as contained in S.19 of the Corrupt Practices And Other Related Offences Act, Cap 31 Laws of Federation of Nigeria 2004.
In its well considered ruling delivered on 10/5/07 the learned trial Judge overruled the no-case submission and called on the Appellant to open his defence. Instead, the Appellant, having being dissatisfied with the said ruling lodged an appeal against the said ruling on two grounds of appeal in that the prosecution failed to establish the essential ingredient of the offence for which the Appellant is being charged.
The Appellant filed two grounds of appeal stated as follows with particulars:
Ground 1 The trial Judge erred in law when he held inter alia
“The accused must explain in defence of his position. I hold that the accused has a case to answer for this I now call upon him to enter upon his defence”
When the essential ingredients of the offence the Appellant is charged with under S. 19 of the Corrupt Practices and Other Related Offences Act 2000 had not been established by the prosecution.
The learned trial Judge erred in law when in the Ruling on no case submission he made observation on the facts of the case thereby fettering him discretion. Parties in this court exchange briefs of argument when the case came up for hearing on. 18/2/10 Mr. Kolawale of counsel to the Appellant referred to his brief dated 2/7/07 filed on 4/7/07 and his reply brief dated 9/6/08 filed on 12/6/08. He adopted the brief as his argument in favour of the appeal and he urged the court to allow the appeal and discharge the Appellant.
Sanusi Kado Esq., counsel to the Respondent adopted and relied on his Respondent’s brief dated 4/10/07 filed on 9/10/07 but deemed properly filed and served on 28/5/08 and he urged the court to dismiss the appeal of the Appellant and order the Appellant to open his defence in the lower court.
The Appellant in his brief distilled two issues thus:
(1) Whether the learned trial judge rightly overruled the no case submission made on behalf of the Appellant.
(2) Whether having regards to the ruling on the no case submission the learned trial judge made any observation or expressed any opinion on the evidence before him thereby fettering his discretion.
Let me quote some relevant part of the Ruling of the lower court. It reads:
“I have painstakingly and carefully gone through the no case submission of learned counsel and I must commend him for the industry he puts in.
I have carefully considered the issues raised therein. At this stage, I will like to warn myself that a no case submission properly so called can be properly raised and sustained when no ingredient of the offence has been established or when’ evidence led by the prosecution is so manifestly unreliable such that no reasonable tribunal can convict on it.
It means, that at this stage, all that is required is that the ingredients of the offence charged must be established to warrant the accused person being called upon to explain certain things contained in the evidence of the prosecution concerning the charge as established by the prosecution.
It is not that the failure of the accused at this stage will mean that the prosecution has failed to prove his case beyond reasonable doubt or that the guilt of the accused has been established.
What it means at the stage of trial is that few matters have been disclosed requiring an explanation from the accused person.
Indeed, there have been instances in which the accused will make a no case submission he will be overruled and will adopt his no case submission as a final address and may succeed.
In the case at hand, the offence charged and the particulars of the offence charged, the falsity of which if established would have either established or prove the offence charged beyond reasonable doubt would have emerged from evidence led.
It is only on this ground that a consideration of either upholding the no case submission or not must be done.
The position of the law in this regard is so strict that unless it is done, inculpable damage might be done, if the evidence led is considered in great detail such as believing or not believing the evidence and at the end, the no case submission is overruled.
It is pertinent at this stage to ask myself a number of questions which I believe will resolve the issue of whether to uphold the no case submission or not.
The questions are:-
(i) What were the true facts of this matter?
(ii) Did the accused confer corrupt advantage upon himself and His wife of not?
(iii) If yes how did he do so?
(iv) If the answer is in the negative where is the evidence for this court to act upon?
There are other questions subsumed in the major questions posed above. There is evidence before this court that the accused person and his wife did not attend some conference and workshop, there is evidence before this court that some of the conferences and workshop did not hold.
I hold without saying more that the accused person must explain and throw light upon the areas which are not clear to this court as claimed.
The accused must explain in defence of his position. I hold that the accused has a case to answer and for this, I now call upon him to enter upon his defence.
I intend to maintain a clear mind to receive the defence of the accused person and adjudicate on the totality of the evidence in this matter”.
On Issue 1
The Appellant’s argument that in this case the prosecution did not make out a prima facie case against the Appellant in that the essential element of the offence for which the Appellant is charged was not established by the Respondent. By S.19 of the Corrupt Practices and Other Related Offences Act 2000 under which the Appellant was charged the two essential elements are as follows:
(i) The Accused person must be a Public Officer
(ii) He must have used his office or position to gratify or confer any corrupt or unfair advantage upon himself or any relation.
The learned counsel argued and conceded that the 1st element was established. His complaint is that the 2nd element having regard to the totality of the evidence adduced by the prosecution the Appellant did not use his office to confer corrupt advantage upon his wife or upon himself. He dwelt into the evidence as adduced by the prosecution and argued that the failure of prosecution to tender certificate attached to his statement Exhibit Q1v (a-b) is fatal to its case in establishing a prima facie case against the Appellant. He cited the case of AITUMA v. STATE (2007) 5 NWLR (Pt1028) 466 at 484. He argued that the evidence led by the prosecution is not sufficient or adequate to call upon the Appellant to defend himself in accordance with S.287 of the CPL.
He relied on ONAGORUWA v. THE STATE (1993) (Pt.303) 49 at 81-82. In his argument he also relied on the following cases IBEZIAKO v. COP (1993) 1 S.C. NLR 99; EMEDO v. THE STATE (2002) FWLR (Pt 130) 1645 at 1650; AJIBOYE v. THE STATE (1995) 18 NWLR (Pt.414) 408 at 415. He argued that since there has been no evidence adduced by the Respondent to prove an essential element in the alleged offence against the Appellant he urged the court to allow the appeal and discharge the Appellant.
The Respondent in his reply to issue 1 as argued by the Appellant submitted that it is trite law that for a no case submission to succeed the accused person must show that from the evidence adduced by the prosecution no prima facie case has been made out against him. This could successfully be done if the accused person is able to establish that an essential element of the offences charged has not been proved or that the evidence of the prosecution has been discredited in the course of cross-examination of the prosecution witnesses or that no reasonable tribunal could convict on the evidence of the prosecution. See AJIBOYE v. THE STATE (1998) 1 ACLR, UBANATU v C.O.P. (2001) 2 ACLR 312.
It is respectfully submitted that having regard to the evidence adduced by the prosecution and exhibits tendered in the course of the trial, the no case submission by the Appellant in this case was misconceived as none of the conditions for a successful no case submission has been proved he argued. Consequently, he said the appellant has failed woefully to discharge the burden of establishing his assertion to warrant the upholding of his no case submission to answer; this is because the evidence adduced by the prosecution in support of the charge against the Appellant has established a prima facie case requiring some explanations from the Appellant. It is further submitted that all that is required at this stage of the trial is a prima facie case against the Appellant, which is enough ground for proceeding with the trial. It must be noted that the evidence establishing a prima facie case is not to be such as would justify a conviction. See UBANATU v. C.O.P. (2001) 2 ACLR @ 335.
It is further submitted that evidence is said to disclose a prima facie case when all the ingredients (elements) of an offence have been covered by the evidence before the Court. The decision should depend not so much on whether, the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether a reasonable tribunal might convict. See AJIBOYE v. THE STATE (1998) 1 ACLR 355.
He referred to the definition of prima facie case, this court per Ibiyeye, JCA, in OMISORE v. THE STATE (2005) Q. C.C.R. Vol, 1, 148 @ 170, has this to say
“The phrase” has been severally defined in Osborn’s Concise Dictionary 6th edition and our courts. One of such definitions in our courts is in the case of DURU V. NWOSU (1989) NWLR (Pt.113) 24, where Nnamani of blessed memory said at page 43 as follows:-
It seems to me the simplest definition is that which says that ‘there is ground for proceedings. In other words that something has been produced to make it worthwhile to continue with the proceedings. On the face of it “suggest that the evidence produced so far indicates that there is something worth looking at”
It is most humbly submitted that the evidence before the court in this matter together with all the exhibits tendered in the course of the trial clearly established a prima facie, case against the Appellant requiring him to offer explanations. This was successfully done by the prosecution by providing evidence that covered all the essential element of the offences charged.
It is also submitted that from the cases cited above what has to be considered at the stage no case submission is not whether the evidence against the Appellant is sufficient to justify conviction, but, whether, the evidence adduced by the prosecution in the course of the trial has covered all the essential ingredients of the offences charged requiring at least some explanations from the Appellant. At the stage of no case submission whether the evidence of the prosecution is believed is irrelevant and immaterial. Likewise the credibility of witnesses or weight to be attached to the evidence is also neither in issue. He relied on OMISORE v. THE STATE (2005) 1 C.C. R VOL 1148, QUEEN v. OGUCHE (1959) FSC 64; UBANATU v. C.O.P. (2001) 2 ACLR 312; IN THE STATE v. OSLER (1991) 6 NWLR (Pt.199) 676, the Court of Appeal at page 586 says
‘a submission that there is no case to answer means that there is no evidence on which the court could convict even if it believed the totality of the evidence given. The submission should therefore be limited to that and the court should not address the credibility of witnesses or the weight of their evidence even if they are accomplices (OGUCHE V. QUEEN (1959) SCNWLR 154 referred to)”
On the 2nd element of the offence the Respondent argued that the conferring of corrupt advantage has been established by the evidence given by the prosecution in support. He referred to the exhibits that show that the Appellant collected various sums of money from the confers of the Local Government under the guises of attending seminars/workshop which never took place or never attended, It is the view of the Respondent that the (sic)
In his reply brief the Appellant insisted that no case had been made out against him as to warrant his being called to offer a defence.
It is pertinent to state here that in arguing the 1st issue in this appeal both the Appellant and the Respondent went too far in reviewing the evidence of prosecution witness as if it was a final address.
In Igabele v. State Nigeria Criminal Cases at 59.
This court in its decision on the meaning of no case submission and quoting the case of R. v COKER & ORS 20 NLR 62 where Hubbard J put it clearly that a submission that there is no case to answer means that there is no evidence on which the court would convict even if the court believed the evidence given by the prosecution.
No case submission may be upheld where:
(a) There was no evidence to prove an essential element of the alleged offence
(b)The evidence adduced has been so discredited as a result of cross-examination.
(c) The evidence is so manifestly unreliable that no reasonable tribunal can safely convict on it and further if however a reasonable tribunal can convict on evidence so far led, there is a case for the accused to answer.
The Locus Classicus on no case submission is found in the case of AJIDAGBA & ORS v. I.G.P (1958) 3 FSC 5 where it was held that – A decision to discharge an accused person on the ground that a prima facie case has not been made against him must be a decision which, upon a clam view of the whole evidence offered by the prosecution, a rational understanding will suggest; the conscientious hesitation of a mind that is not influenced by party, preoccupied by prejudice or subdued by fear. In F.R.N. v. EKWENUGO (2007) 3 NWLR Pt 1021 at pages 209-218 this court held that it is only if there is no sufficient evidence linking the accused with the statutory elements of the offence with which he is charged that a court of trial must as a matter of law discharge him.
Before coming into a conclusion that an accused has a case to answer, the trial court must be satisfied that there is in law, a nexus behind the criminal conduct and the offence the accused is charged with and this must be apparent on the face of the evidence led by the prosecution. The prosecution must be at this stage prove the essential element in the alleged offence.
In MOHAMMED v. THE STATE (2007) NWLR Pt 1032 pages 152-163 the Supreme Court held that a submission of no case may be properly upheld when –
(a) There has been no evidence to prove an essential element of the alleged Offence.
(b) The evidence adduced by the prosecution has been so manifestly discredited as a result of cross-examination or manifestly unreliable that no tribunal could safely convict on it.
Where a no case submission is made particularly when Counsel indicates intention not to rely on same what is to be considered by the court is not whether the evidence produced by the prosecution against the accused is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring at least, some explanation from the accused person as regards his conduct or otherwise.
In my candid view from the evidence available on record the trial court was perfectly right in holding that a prima facie case was established against the Appellant. The facts as submitted by the prosecution called for explanation. The 1st issue is resolved against the Appellant and in favour of the Respondent.
On issue 2 the Appellant quoted part of the ruling which I had earlier quoted.
On this he submitted that, that part of the ruling of the lower court wherein pertinent and fundamental questions were posed by the court and answers were given to them are expressions of opinion on the evidence before the court. He argued that the trial court ought not to express any opinion on the evidence. Refers to DABOH v. THE STATE (1977) 5 SC 197 at 209; CHINGO v. STATE (2002) 2 NWLR (Pt 750) 225 at 239. He submitted that there was no area that was not clear to the court. Refer to AJIBOYE v. STATE Supra and EMEDO v. STATE supra. He therefore urged the court to allow the appeal.
The Respondent on Issue II submitted that from the case of OMISORE v. THE STATE (2005) VO 1 @ CLR and other authorities cited by him that the trial judge did not in any way in his ruling make any observation or state an opinion that fettered his discretion rather what it did was that he stated the true position of things.
He concluded that contrary to the submission of the Appellant the trial judge did not express any opinion that fettered his discretion. He is of the opinion in his submission that it is fatal to make a no case submission when the evidence so far adduced has covered all the essential ingredients and elements of the offence charged. Refers to ATANO v. THE STATE (2005) 4 ACLR 25 at 29.
It has been entrenched in the corpus of criminal jurisprudence that a trial court should not say too much in a ruling against a no case submission to answer in order to avoid a situation whereby discretion of the court might be fettered. Thus, the mere fact that a trial court has commented by way of observation or opinion in a no case submission in itself is not enough to justify reversal of the decision of the trial court, this is because, it is not in all cases that discretion of the court is fettered. In OMISORE v. STATE (2005) Vol. 1 Q.C.C.R. 148 @ 163, Adekeye, JCA (as he then was) has this to say:-
“as a rule whether a submission that there is no case to answer is to be rejected or upheld by the trial court, its observations should be confined to the submissions made before it in the ruling as it is desirable that there should be no observations on the facts of the case at the stage at all. It is improper to deliver ruling of inordinate length in a submission of no case to answer as too much might be said at the end of the case might fetter the court’s discretion. Hence it is wise to be brief and make no observation on the facts. All the court is expected to ascertain is whether or not there is any evidence at all, no matter how slight, linking the accused with the offence charged. Since this cannot involve evaluation of evidence or the ascription of probative value to evidence, there can be no reason for any lengthy writing.
The appellant tried to chip in the fact that in writing such a lengthy ruling the appellant’s constitutional right to fair hearing has been compromised since the learned trial judge has taken position on the issues of facts, in a matter which is yet to be adjudicated upon after hearing the defence. Where a no case submission is overruled and a lengthy ruling is delivered the ruling may or may not fetter the judge’s discretion, this would depend on the facts of each particular case. The appellate court held that a lengthy ruling on no case submission will not by itself constitute a denial of fair trial to the accused which would vitiate the trial, but for the trial to be vitiated the discretion of the court must have been fettered by the lengthy ruling ATANO & ANR. v. ATTORNEY-GENERAL OF BENDEL STATE (1998) 2 NWLR (Pt.75) 201, EKANEM v. KING (1950) 13 WACA 108, BELLO v. STATE (1967) NWLR PAGE 1, (1968) 1 ALL NLR 361, STATE v. EMEDO (2001) 12 NWLR (Pt.726) PAGE 131.
It is however; submitted that the proper course for the courts to adopt is to avoid two extreme of an inordinately lengthy ruling and a terse ruling in delivering a ruling rejecting a submission by counsel of no case to answer. The courts should steer a middle course by merely addressing the point raised in the submission by counsel. In the instant case and going by the record of appeal, though the court delivered a fairly lengthy ruling it realized that the proceedings were not at an end, and that the appellant was yet to be heard…………………………….”
IN ATANO v. STATE (2005) 4 ACLR 25, it was stated as follows:-
“a lengthy ruling on a no case submission will not by its length alone vitiate the proceedings. In other words a lengthy ruling overruling no case submission will not by its length alone infringe the fundamental right of-an accused person as enshrined in section 33 sub-section 1 of the constitution. AGBAJE, JSC, (as he then was), at page 45”.
At the stage of a no case submission at the close of the prosecutions case what is required of a trial court is not to evaluate or attach weight to the evidence led by the prosecution at that stage or to write lengthy judgment. A ruling on a no case submission should be as brief as possible and not in any way go into evaluation of the evidence led. Therefore the issue is not whether the prosecution has proved the charge against the accused beyond reasonable doubt.
In the instant case I can not see how the trial judge descended into the arena and expressed any opinion that may fetter his discretion. In fact concluded thus and I quote –
“I intend to maintain a clear mind to receive the defence of the accused person and adjudicate on the totality of the evidence in this matter”.
It follows that what has to be considered at the stage of a no case submission is not whether the evidence against the accused is sufficient to justify conviction but whether the prosecution has made a prima facie case requiring at least some explanation from the accused person. See EKWENUON v. F.R.N. (2008) 7 S.C.N.J. (July) 236 at 242.
It is therefore clear that the trial judge at that time had not convicted the Appellant but merely did the right thing by calling on him to make a defence. It is still open to the Appellant either to make a defence or rest his case on that of the prosecution.
I hold that the trial judge did not concern itself with the credibility of the witnesses or the weight of their evidence. He therefore did not make any observation or expressed any opinion on the evidence before him thereby fettering his discretion.
Issue 2 is therefore resolve against the Appellant and in favour of the Respondent.
The Ruling of the lower court given on 10/5/07 is hereby affirmed and the Appellant is called upon to make his defence. The case therefore is sent back for expeditious trial. Appeal lacks merit and it is dismissed.
ALI ABUBAKAR BABANDI GUMEL, J.C.A: I have had the privilege of reading before now the lead judgment of my learned brother, SHOREMI, J.C.A. I fully and entirely agree with all the reasons and conclusions very ably set out therein. I also agree that this appeal lacks merit and ought to be dismissed. I abide with all the consequential orders of my learned brother.
CHIOMA EGONDU NWOSU-IHEME (Ph. D) J.C.A: I agree
Appearances
O. Kolawale Esq.For Appellant
AND
Sanusi Kado Esq.For Respondent
