ESSIEN v. STATE (2020)

ESSIEN v. STATE

(2020)LCN/14672(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, October 30, 2020

CA/C/103C/2019

RATIO

APPEAL: APPEALS FROM THE FEDERAL HIGH COURT OR STATE HIGH COURT AS OF RIGHT TO THE COURT OF APPEAL

The starting point is the provision of the law on the point, and to that end Section 241 of the 1999 Constitution becomes relevant having provided that:
241 (1) an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings:
(c) …………………….
The Apex Court in construing Section 220 (1) of the 1979 Constitution of the Federal Republic of Nigeria, which is in pari materia with Section 241 (1) (b) of the 1999 Constitution, per Kutigi JSC, in the case of Attamah & ors vs. The Anglican Bishop of the Niger & ors (1999) LPELR-599 (SC) held that;
“It is trite law that under the above Section, a decision of the High Court whether final or interlocutory is appealable as of right and without leave on questions of law alone”.
Also in the case of Gboko vs. The State (2011) 6NCC 312 @ 332 per Bulkachuwa JCA, cited by the learned counsel for the appellant, this Court further referred to Section 241 (1) (e) of the 1999 Constitution which provided inter alia that, leave to appeal is not a requirement where the appeal emanates from “Decisions in any criminal proceedings in which the Federal High Court or High Court has imposed a sentence of death” PER BARKA, J.C.A.
BRIEF: PURPOSE OF A REPLY BRIEF

It has been held by this Court as well as the Supreme Court in a host of cases, that the purpose of a reply brief under the rules of Court is not to afford an appellant another or further bite at the cherry or opportunity to provide additional arguments in support of an appeal or to further introduce arguments for or against the appeal, but meant to answer, reply or respond to any fresh or new points raised in the respondents brief. See Hajiya Iyya Alhassan Duzu & anor vs. Alhaji Jibril Yunusa & ors (2010) LPELR-8989 (CA), per Garba JCA, see also Basinco Motors Ltd vs. Woermann Line & anor (2009) LPELR-756 (SC) where the Apex Court opined that the purport and purpose of a reply brief is to address fresh issues raised in a respondents brief and not to introduce fresh points. See further on this Ajileye vs. Fakayode (1998) 4NWLR (pt. 545) 184, HH Eze Umeji vs. AG Imo State (1995) 4NWLR (pt. 391) 552. PER BARKA, J.C.A.
NO CASE SUBMISSION: ESSENCE OF A NO CASE TO ANSWER

It has been the state of the law, restated by Onnoghen JSC in Tongo vs. COP (2007) LPELR-3257 (SC) that the essence of a no case to answer lies in the contention that the evidence of the prosecution called in the discharge of the burden of proof placed on them by law has failed to establish a prima facie case. In other words where the Court upholds the submission on a no case on all the counts of the charge, the accused stands to be discharged. See Emedo vs. The State (2002) LPELR-1123 (SC). The learned counsel for the appellant is on sound footing arguing that where the prosecution fails to adduce evidence in proof of an essential element of the offence, then a no case submission ought to be upheld. SeeUbanatu vs. Commissioner of Police (2000) LPELR- 3280 (SC) per Wali JSC.
Similarly the Apex Court in the case of Ilyasu Suberu vs. The State (2010) 8NWLR (pt. 1197) 586, also cited as (2010) LPELR-3120 (SC) per Fabiyi JSC, adopting its earlier position in Ibeziako vs. The Police (supra) and Aituma vs. The State (2006) 10NWLR (pt. 989) 473 gave legal direction to the conditions under which a no case submission can be upheld thus:

A prima facie case according to the Black’s Law Dictionary, 8th Edition, means the establishment of a legally required rebuttable presumption. A party’s production of enough evidence, capable of inferring the fact in issue and thereby rule in that party’s favor. Prima facie on its own denotes the impression created at first sight, or first appearance subject to further evidence or information, that which is sufficient to establish a fact or raise a presumption. It does not translate to conclusive proof, unless when the evidence remains unrebutted. PER BARKA, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

HON. BASSEY EYIBIO ESSIEN APPELANT(S)

And

THE STATE RESPONDENT(S)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the decision of the High Court of the Cross River State sitting in Calabar, the Cross River State Capital in Charge No. HC/9C/2013; The State vs. Hon. Bassey Eyibio Essien delivered on the 28th day of June, 2018.

The facts that originated the instant appeal arose when appellant was arraigned on the 11/11/2013 upon the following three counts of the charge alleging fraudulent false accounting and forgery, thus:
STATEMENT OF OFFENCE COUNT 1
FRAUDULENT FALSE ACCOUNTING, contrary to Section 438(c) of the Criminal Code Cap C16 Vol. III Laws for Cross River State, 2004.
PARTICULARS OF OFFENCE
BASSEY EYIBIO ESSIEN, on or about the 15th day of December, 2006, in the Calabar Judicial Division, being a staff in the employ of Mbukpa Area Microfinance Bank Ltd, now First Royal Microfinance Bank Ltd, with intent to make proper entry in the cash book of the said Bank and in so doing, converted to your own use the sum of Two Hundred Thousand Naira.

STATEMENT OF OFFENCE COUNT 2
FRAUDULENT FALSE ACCOUNTING, contrary to Section 438(a) of the Criminal Code Cap C16 Vol. III Laws for Cross River State, 2004.

PARTICULARS OF OFFENCE
BASSEY EYIBIO ESSIEN, between the months of June, 2006 and March, 2007, in the Calabar Judicial Division, being a staff of the employ of Mbukpa Area Microfinance Bank Ltd, now First Royal Microfinance Bank Ltd, with intent to defraud, altered figures in customers cheque and other instruments by inflating the figures and converting the difference, the sum of three million and twenty-three thousand, nine hundred naira, to your own use.
STATEMENT OF OFFENCE COUNT 3
FORGERY, contrary to Section 467 of the Criminal Code Cap C16 Vol. III Laws for Cross River State, 2004. PARTICULARS OF OFFENCE
BASSEY EYIBIO ESSIEN, between the months of June, 2006 and March, 2007, being a staff in the employ of Mbukpa Area Microfinance Bank Ltd, now First Royal Microfinance Bank Ltd, in the Calabar Judicial Division, forged the signatures of various customers of the aforesaid bank and made unauthorized transfers and withdrawal and converted the sum of three million, twenty-three thousand, nine hundred naira, to your own use, and when the three count charge was read to the

appellant’s understanding, he pleaded not guilty to all the counts of the charge.

The prosecution’s case is that appellant while in the employment of Mbukpa Microfinance Bank now First Royal Microfinance Bank Ltd Calabar, was alleged to have fraudulently omitted to make proper entry in the cash book of the bank and thus converted the sum of N200,000.00 to his own use; altered figures in customers cheques and other instruments by inflating figures and thereby converted the sum of N3,023.900, and forgery of cheques also amounting to the same amount.

Appellant having pleaded not guilty to the three count charge, the prosecution called seven witnesses and closed its case.
A no case submission was made and argued on behalf of the appellant, consequent upon which the Court considered and overruled the no case submission thereby calling on the accused person to put up his defense to the three count charge.

Dissatisfied with the ruling of the lower Court delivered on the 28/6/2018, overruling his no case submission, appellant filed this appeal on the 13th of July, 2018 predicated on two grounds of appeal. The Extant Notice of Appeal is

the Amended Notice of Appeal filed on the 6/5/2020 with leave of Court now predicated on four grounds.

The appeal proper having been entered to this Court on the 12th of March, 2019, Appellant filed a brief of argument on the 6/5/2020. Appellant also filed a reply brief on the 17/6/2020.

In opposing the appeal, the state filed a respondent’s brief incorporating a preliminary objection on the 3rd of June, 2020. The appeal having come up for hearing on the 17/9/2020, parties identified their respective briefs adopted the same in urging the Court to grant their respective prayers.

In the appellant’s brief settled by E. E. Osim of counsel, a lone issue was offered for the Courts resolution. It reads as follows:
Whether the respondent quo prosecution proved an essential element/gravamen of any of the offences charged and/or the said prosecution evidence, if any, has not be (sic) sufficiently discredited during the process of cross examination that (sic) not reasonable Court can convict/or act on same?

The State on its part, notwithstanding the preliminary objection filed, and in the event the Court holds that the appeal is

competent, advanced two issues for resolution:
a) Whether from the totality of all the evidence adduced by the prosecution witnesses, the lower Court has erred in holding that a prima facie case had been established to warrant the Appellant to enter his defense.
b) Whether the defendant/Appellant did in any way contradict prosecution witnesses’ evidence in any material particularly during cross examination in Court.

Before advancing to the merit of the appeal should the need arise, there is the compelling need to settle first of all, the preliminary objection raised by the respondent’s Notice of Preliminary Objection filed on the 3/6/2020, and argued from pages 3-5 of the Respondent’s brief.

PRELIMINARY OBJECTION
By the preliminary objection filed, respondent prays for the order of this Court dismissing this appeal on grounds of non compliance with Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999. The grounds advanced in support of the objection are that:

The Appellant filed the Notice and Grounds of Appeal in this case on the 13/7/2018 after the ruling of the lower Court delivered on the 28th day of June, 2018.

The ruling so delivered was not a final judgment.
C. The Appellant failed, refused and or neglected to seek leave of either the Court below or this Honourable Court to appeal.

It was the submission of learned counsel for the respondent that the appeal filed being consequent upon a ruling delivered on the 28th of June, 2018 and the appeal having been filed on the 13th of July, 2018 was filed without the leave of this Court or the lower Court sought and obtained. He contended that the ruling delivered being an interlocutory ruling, there was the need to obtain leave before appealing in line with Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Alluding to the provisions of Section 242(1) of the Constitution, and the decisions ofNwosu vs. Offor (1997) 2NWLR (pt. 487) 274, and Anachebe vs. Ijeoma (2014) 14NWLR (pt. 1426) 168 amongst others, counsel urged the Court to strike out the appeal as being incompetent.

The appellant responded to the issue canvassed at pages 4-6 of the appellant’s reply brief, contending that appellant’s Notice and

Grounds of appeal are competently before the Court. He alluded to the provisions of Section 241 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, and submitted that the Notice and Grounds of appeal herein involves issues grounded in law alone, and where the issues as in this case pertains to issues of law, it is of no consequence that the appeal is interlocutory from the stipulations of Section 241 (1) (b) of the Constitution and therefore valid and proper. The decisions of Calabar Central Cooperative, thrift & Credit society Ltd & ors vs. Bassey Ebong Ekpo (2008) 33 NSCQR 1146 @ 1174, and Asogwa vs. The State (2014) 9 NCC 1 @ 50 were cited in support of the legal position. Learned counsel maintains that appellant does not require any leave and further cited the case of Gboko vs. The State (2011) 6 NCC 312 @ 332 per Bulkachuwa JCA, and urged the Court to dismiss the preliminary objection.

The issue for resolution herein is simple. It lies upon the question whether the appellant in the circumstance of the case needed leave to appeal the interlocutory decision of the lower Court.
The starting point is the provision of the law on the

point, and to that end Section 241 of the 1999 Constitution becomes relevant having provided that:
241 (1) an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings:
(c) …………………….
The Apex Court in construing Section 220 (1) of the 1979 Constitution of the Federal Republic of Nigeria, which is in pari materia with Section 241 (1) (b) of the 1999 Constitution, per Kutigi JSC, in the case of Attamah & ors vs. The Anglican Bishop of the Niger & ors (1999) LPELR-599 (SC) held that;
“It is trite law that under the above Section, a decision of the High Court whether final or interlocutory is appealable as of right and without leave on questions of law alone”.
Also in the case of Gboko vs. The State (2011) 6NCC 312 @ 332 per Bulkachuwa JCA,

cited by the learned counsel for the appellant, this Court further referred to Section 241 (1) (e) of the 1999 Constitution which provided inter alia that, leave to appeal is not a requirement where the appeal emanates from “Decisions in any criminal proceedings in which the Federal High Court or High Court has imposed a sentence of death”
Now considering the submissions of the learned counsel for the respondent based on the applicability of Section 242 (1) of the Constitution made subject to Section 241 of the same Constitution, as well as the cases cited by him dealing with Section 242, does not preclude nor render the instant appeal incompetent in view of the clear stipulations of Section 241 (1) (b) of the Constitution. In any case, it is not the contention of the learned Attorney-General that the appeal lodged is not on law. The preliminary objection is without merit, and it is hereby dismissed by me.

By way of passing, Mr. Ossim in the appellant’s reply brief from paragraphs 2.0 – 2.08 sought to contend that there was no legally competent and cognizable preliminary objection and respondent brief properly so called

before the Court. Learned counsel placing reliance on the cases ofOyama & Anor vs. Agbiji & anor (2015) 11 EPR 87 @ 96, Tanimu & anor vs. Hon. Rabiu & ors. (2018) 4 NWLR (pt. 1610) 505 @ 523 and Maitumbi vs. Baraya & ors (2017) 2NWLR (pt. 1550) 348 complained that from the three names of counsel appearing on the processes, none was indicated as being the author of the processes.
It has been held by this Court as well as the Supreme Court in a host of cases, that the purpose of a reply brief under the rules of Court is not to afford an appellant another or further bite at the cherry or opportunity to provide additional arguments in support of an appeal or to further introduce arguments for or against the appeal, but meant to answer, reply or respond to any fresh or new points raised in the respondents brief. See Hajiya Iyya Alhassan Duzu & anor vs. Alhaji Jibril Yunusa & ors (2010) LPELR-8989 (CA), per Garba JCA, see also Basinco Motors Ltd vs. Woermann Line & anor (2009) LPELR-756 (SC) where the Apex Court opined that the purport and purpose of a reply brief is to address fresh issues raised in a respondents brief and not to

introduce fresh points. See further on this Ajileye vs. Fakayode (1998) 4NWLR (pt. 545) 184, HH Eze Umeji vs. AG Imo State (1995) 4NWLR (pt. 391) 552.
Learned counsel cannot therefore in the guise of responding to the preliminary objection or the respondents brief at that point try to raise the competence of the process when the respondent would have no right of reply. If the appellant is seriously disturbed by the respondents failure to indicate which of the counsel therein settled the brief, he has the liberty even at that stage to file a motion on notice attacking the process filed thus availing the other party the opportunity to respond. In any case the respondents brief is signed by one Tanko Ashang the Hon. Attorney-General and Commissioner for Justice with his legal practitioners stamp indicating that the brief was settled by him. The issue is equally discountenanced.

MAIN APPEAL.
I have before now alluded to the issues identified by the parties. Having carefully studied the grounds of appeal and the record of proceedings, I am minded in determining the appeal based on the lone issue proposed by the appellant slightly reframed to read

thus:
Whether from the totality of the evidence adduced, the prosecution can be said to have led credible and acceptable evidence in proof of the allegations against the appellant as to warrant the Court calling upon him to enter his defence.

The contention of learned counsel for the appellant is that the prosecution through their witnesses failed to adduce evidence showing that appellant made any false entry in the books of the First Royal Microfinance bank Ltd as to warrant the Court to hold that a prima facie case has been made out in respect of count one of the charge.

Learned counsel submitted also that the lower Court was wrong to have relied on exhibit C in holding that a prima facie case was established in view of the copious cross examination of the Pw1 and Pw2. Learned counsel analysed the pieces of evidence adduced by the prosecution, and relying on the case of Fagoriola vs. FRN (2013) 15 NSCQR 111 @ 129, which held that a prima facie case is said to exist when there is evidence enough to support the allegation made against the accused person, posited that the opinion of the lower Court on exhibit C was made in error. He further analysed

the pieces of evidence rendered by the prosecution witnesses, contending that the lower Court failed, refused and neglected to comment on the impact the cross examination of the witnesses had on the prosecution’s case. Making reference to the case of Suberu vs. The State (2010) 5 NCC 110 @ 125-126 on when a no case submission can be upheld, counsel argued that the lower Court failed to make any pronouncement with regards to the two conditions that qualify for a successful no case submission being upheld, and that it is incumbent on the prosecution to prove those essential elements of the offenses being alleged.

Learned counsel further faulted the lower Court’s holding at page 445 of the record with regard to the forensic examination by the Pw6 as that did not equate to proving an essential ingredient without more as held by the trial Court, further faulting the lower Court’s holding to the effect that the Court is not concerned with the evaluation of evidence at this stage, insisting that the Court ought to have pronounced on whether there was any evidence to prove the essential gravamen of the alleged offences. Counsel argued that appellant

cannot be called upon to enter his defence based on suspicion and hearsay evidence thereby urging this Court to set aside the ruling of the lower Court, and uphold the no case submission made.

In response, the learned counsel for the respondent submitted that the evidence of the Pw1 was not contradicted by the appellant all through the said cross examination, and furthermore it was argued that the Pw1 gave evidence of the anomalies discovered and traced to the appellant. He also referred to the evidence adduced by the Pw2 – Pw5, stating that it was after all these discoveries that the case was referred to the police for investigation. He argued relying on the same case of Fagoriola vs. FRN (2013) 15 NSCQR 111 @ 129, that the lower Court was not in error relying on exhibit C made by the appellant admitting wrong doing.

That notwithstanding, learned counsel submitted that apart from exhibit C, the unchallenged evidence from prosecution witnesses showed that appellant had a lot to explain. He maintained that the prosecution established all the essential ingredients of the two offences alleged against the appellant, thus dismissing the no case

submission made. He alluded to the ingredients of the offences of fraudulent false accounting and forgery still maintaining that appellant cannot be heard complaining that the essential ingredients were not proved. He also submitted that Pw6 the handwriting expert clearly showed that appellant was the author of all the documents sent to him for analysis.

On whether the appellant did in any way contradict prosecution witnesses’ evidence in any material particular during cross examination, it was argued for the respondent that for such contradiction to sway the Court in holding otherwise, they must be material. Babarinde vs. The State (2013) 56 NSCQR 348.

On the submission that the Court failed to comment on the impact of its cross examination of the witnesses during trial, relying onSuberu vs. The State (supra), it was argued that appellant was sufficiently linked to the offences charged and that no witness was contradicted to have enabled the Court to uphold the no case submission, and further that at this stage the Court does not evaluate evidence once satisfied that a prima facie case is shown. He argued that the case of Emedo vs. The State

(2002) 15 NWLR (pt. 789) 196 @ 204-205 has provided a guide on how a no case submission should be treated and urged the Court to be guided by the decision of Agbo vs. The State (2013) 11NWLR (pt. 1366) 377 @ 393 to the effect that however slight the evidence linking the accused might be to the commission of the offence, the case ought to proceed for the accused to explain his own side of the matter. He finally urged the Court to dismiss the appeal.

On points of law, it was argued that the case of Ossai Emedo vs. The State (supra) supports the appellant’s case. On this Court’s decision in the case of Omisore vs. The State (supra) per Adekeye JCA (as he then was) cited the decision at length concluding that the statement of law exposed therein is the obligation which this Court owes the appellant to uphold the no case submission and to discharge him without more.

I have therefore accorded due consideration to the submission of learned counsel, and my humble but firm view is that the crux of the matter borders on whether the trial Court was right in calling upon the appellant as accused person to enter his defense, thus over ruling his no

case submission.
It has been the state of the law, restated by Onnoghen JSC in Tongo vs. COP (2007) LPELR-3257 (SC) that the essence of a no case to answer lies in the contention that the evidence of the prosecution called in the discharge of the burden of proof placed on them by law has failed to establish a prima facie case. In other words where the Court upholds the submission on a no case on all the counts of the charge, the accused stands to be discharged. See Emedo vs. The State (2002) LPELR-1123 (SC). The learned counsel for the appellant is on sound footing arguing that where the prosecution fails to adduce evidence in proof of an essential element of the offence, then a no case submission ought to be upheld. SeeUbanatu vs. Commissioner of Police (2000) LPELR- 3280 (SC) per Wali JSC.
Similarly the Apex Court in the case of Ilyasu Suberu vs. The State (2010) 8NWLR (pt. 1197) 586, also cited as (2010) LPELR-3120 (SC) per Fabiyi JSC, adopting its earlier position in Ibeziako vs. The Police (supra) and Aituma vs. The State (2006) 10NWLR (pt. 989) 473 gave legal direction to the conditions under which a no case submission can be upheld thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“it is certain that a submission that there is no case to answer should only be upheld if any of the two conditions stated hereunder prevails at the end of the prosecution’s case:-
i. When there is no evidence connecting the accused person with the alleged offences.
ii. When the evidence adduced by the prosecution has been so discredited as a result of cross examination or is manifestly unreliable that no reasonable tribunal could safely convict on it.”
Put in another way, a no case submission only means that there is nothing in the evidence adduced by the prosecution that could persuade the Court to compel the accused person to put up his defense.
I understand Mr. Osim, the learned counsel for the appellant stating that none of the prosecution witnesses gave evidence linking the appellant with the offence of false entry of the books of the First Royal Microfinance Bank Ltd alleged against the appellant. With respect to the allegation made, learned counsel argued that the evidence by the Pw1, and Pw7 had been rendered unreliable owing to the answers elicited from cross examination, and further that exhibit C appears

doubtful as to be of any use to the prosecution. I have been referred to pages 401 – 444 of the record of proceedings, containing the proceedings of the lower Court. It should be recalled that appellant was arraigned for the offences of fraudulent false accounting and forgery. In concluding that appellant had a case to answer before it, the learned trial Judge from pages 443 – 446 of the record, appreciated what translates to prima facie evidence as that evidence which if believed will entitle a Court to convict. Still at page 444 of the record, the lower Court examined the principles the Court ought to consider when entertaining a no case submission before it. Hear him:
“When a no case submission is made in a criminal case it is for the trial Court to consider whether evidence has been offered in support of all the ingredients of the offence charged. If evidence has been offered, to consider whether the evidence offered is of such a specie that a reasonable tribunal might convict upon it. When the evidence for the prosecution is such that a reasonable tribunal might convict upon it then the accused person has a case to answer”.

The lower Court then at the same pages 444 – 445 of the record examined in brief the pieces of evidence laid before it, to found his conviction that a prima facie case had been made out. The appellant counsel on the other hand wanted the lower Court to evaluate, ascribe probative value to the evidence adduced, before arriving at the conclusion that accused now appellant had a case to answer.
I think with respects that such is not the position of the law. A prima facie case according to the Black’s Law Dictionary, 8th Edition, means the establishment of a legally required rebuttable presumption. A party’s production of enough evidence, capable of inferring the fact in issue and thereby rule in that party’s favor. Prima facie on its own denotes the impression created at first sight, or first appearance subject to further evidence or information, that which is sufficient to establish a fact or raise a presumption. It does not translate to conclusive proof, unless when the evidence remains unrebutted.
The proper course as indicated by the learned counsel for the respondent is that laid down in the case of Emedo vs. The State (2002)

15 NWLR (pt. 789) 196 @ 204, also reported as (2002) LPELR-1123 (SC), where Mohammed JSC stated that:
“It is the judges duty however when a submission of no case to answer is made to discharge an accused person where the evidence adduced by the prosecution does not disclose the necessary minimum evidence establishing the facts of the crime charged. In doing so, the judge does not write a judgment. It is not the Judge’s job at that stage to weigh and to evaluate evidence or decide who is telling the truth or who is lying and he is not to conclude that what the prosecution has adduced is unreliable”.
In the same judgment, the Apex Court gave a stern warning to trial Courts to be wary of discharging an accused person on a no case submission:
“There are several decisions of this Court warning against the discharge of accused persons after a submission of no case to answer, particularly when it is clear from the evidence adduced that the facts disclose some explanation which the accused has to make in view of what the prosecution has so far established from the evidence”.
It follows therefore that the submission of

learned counsel for the appellant requiring that the trial Court ought to have evaluated the evidence before it is not well founded. On the contrary as clearly made out in Agbo vs. The State (2013) 11NWLR (pt. 1366) 377 @ 393, also cited by the respondent counsel, that however slight the evidence linking the accused with the commission of the alleged crime may be, deserves an explanation from the accused on the matter. I refuse the temptation of delving into the merit of the case as the appellant provokingly wants the Court to do. Instead having also examined the evidence proffered by the prosecution, it is my candid view that the accused person now appellant needs to explain vital pieces of evidence made against him, and thus calling upon him to defend the action. I find no merit in the appeal, and thereby dismiss the same. The order of the lower Court calling upon the appellant to enter his defense is hereby upheld.
Appeal Dismissed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother Hamma Akawu Barka, JCA
I agree with the reasoning and conclusion. I also agree that the appeal lacks merit and

deserves to be dismissed

MUHAMMED L. SHUAIBU, J.C.A: I have had the advantage of reading In draft the judgment just delivered by my learned brother, Hamma A. Barka, JCA I entirely agree that once the evidence of the prosecution links the accused with the commission of the offence charged, no matter how slight, the accused person must be called upon to explain.

I also find no merit in this appeal, and it is hereby dismissed. The decision of the lower Court calling upon the appellant to enter his defence is accordingly affirmed.

Appearances:

No Legal Representation For Appellant(s)

Okoi Ukem Esq. DD. Ministry of Justice, Cross River State For Respondent(s)