EZEH v. STATE
(2022)LCN/16513(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Wednesday, February 23, 2022
CA/AS/443C/2014
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
PETER EZEH APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
THE DEFINITION OF A NO CASE SUBMISSION
Section 286 of the Criminal Procedure Law, Cap C22, Volume 1, Laws of Delta State,2006 provides that: “If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence the Court shall, as to that particular charge, discharge him.”
The defence always utilise the above provision of the CPL to make a no case submission. The meaning of a no case has been stated in several decisions of this Court and the Supreme Court. See FAGORIOLA V. FEDERAL REPUBLIC OF NIGERIA (2013) LPELR-20896(SC) AT 30-31 (F-A), IKUFORIJI V. F.R.N (2018) LPELR-43884(SC) AT 20-21 (G-A). On the authority of the above cases, no case submission means that there is no evidence on which the Court would convict even if the Court believe the evidence adduced by the prosecution. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A
THE CONDITIONS THAT MUST BE UPHELD BEFORE A NO CASE SUBMISSION CAN BE GRANTED
A no case submission can only be upheld if any of the following conditions exists: 1. Where there is no legally admissible evidence to prove an essential element of the alleged offence. 2. Where the evidence led by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Tribunal would safely convict on it. See AGBO & ORS V. THE STATE(2013) LPELR-20388(SC) AT 15-16 (F-A), AMAH V. FEDERAL REPUBLIC OF NIGERIA (2019) LPELR-46347(SC) AT 38 (C-G). MISITURA OMODERE BOLAJI-YUSUFF, J.C.A
THE DUTY OF THE COURT AT THE STAGE OF A NO SUBMISSION
The duty of the Court at the stage of a no case submission is stated by the Supreme Court Per KEKERE-EKUN, J.S.C in COMMISSIONER OF POLICE v. MR. EMMANUEL AMUTA (2017) LPELR-41386(SC) AT 27-28 F-F) as follows:
“It is settled law that a submission that there is no case to answer by an accused person means that there is no evidence upon which, even if the Court believed it, it could convict. In other words, where there has been no evidence to prove an essential element of the offence, or where the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Court or Tribunal can safely convict on it. At the stage when a no case submission is made, the trial Court is not called upon to express an opinion on the evidence before it. The credibility of the witnesses is not in issue at this stage. All that the Court is required to do is to determine whether or not there is any legally admissible evidence linking the accused person with the commission of the offence withwhich he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the record. If it does not, the submission is bound to fail. See Daboh v. The State (1977) All NLR 146 per Udo Udoma, JSC also found in (1977) LPELR – 904 (SC) 1 AT 15-16 A – A, Ekwunugo v. F.R.N. (2008) 15 NWLR (Pt.111) 630, Ibeziako v. C.O.P. (1963) 1 SCNLR 99,Owonikoko v. The State (1990) 7 NWLR (Pt.62) 381 and Agbo v. The State (2013) 11 NWLR (Pt.1365) 377.” MISITURA OMODERE BOLAJI-YUSUFF, J.C.A
THE LAW ON THE ELEMENTS OF THE OFFENCE OF FORGERY
As regards the charge of forgery in count 4, Section 465 of Criminal Code Law, Cap C22, Volume 1, Laws of Delta State, 2006 which provides that:
“A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Nigeria or elsewhere to the prejudice of any person, or with intentthat any person may be in the belief that it is genuine, be induced to do or refrain from doing any act, whether in the state or elsewhere, is said to forge the document or writing…”
The elements of the offence of forgery are: 1. The making of a document or writing knowing it to be false. 2. That the accused forged the document in question. 3. The intent that it may be used or acted upon as genuine. See AWOBOTU V. THE STATE (1976) LPELR-649(SC) AT 31(C-F), MICHAEL ALAKE V. THE STATE (1992) LPELR-403(SC) AT 10 (B-C), NDOMA-EGBA V. AFRICAN CONTINENTAL BANK PLC (2005) LPELR-1973(SC) AT 21-22 (E-B), STANILAUS v. FEDERAL REPUBLIC OF NIGERIA (2020) LPELR-50793(CA) AT 7-8 (F-F). MISITURA OMODERE BOLAJI-YUSUFF, J.C.A
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the ruling of the High Court of Delta State delivered in Charge No. W/1C/98. The appellant as the 3rd accused and five others were arraigned on a four count charge of conspiracy, stealing and forgery. All the accused persons pleaded not guilty to the charge. The prosecution called eight witnesses and tendered several exhibits to prove its case.
Upon the close of the prosecution’s case, counsel to all the accused persons made a “no case” submission pursuant to Section 286 of the Criminal Procedure Law, Cap C22, Volume 1, Laws of Delta State, 2006. In a reserved ruling delivered on 10/6/2012 by Onajite – Kuejubola J. the lower Court after a consideration of the evidence adduced and the submissions of counsel found that a prima facie case had been made out against all the accused persons in respect of all the charges. He called on them to enter their defence.
Aggrieved by the decision of the lower Court, the appellant filed a notice of appeal against the decision on 10/7/12. The two grounds of appeal contained therein are:
1. “The learned trial judge erred in law when she failed to expunge the totality of the evidence in chief given by PW8, the Investigating Police Officer who died before his cross-examination by any of the accused persons.
2. The learned trial judge erred in law by calling upon the accused person to defend himself when there is no iota of evidence from PW1-PW7 touching him.”
The appellant’s brief of argument was settled by Chief Pius I. Egemole and filed on 9/6/20. It was deemed as properly filed on 22/1/21. When the appeal was called for hearing, the appellant’s counsel despite service of notice of hearing on him was absent without any explanation. The appeal was therefore treated as having been argued pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules, 2021. The appellant formulated the following issues for the determination of this appeal:
“1. Whether the no case submission made by the appellant before the trial Court was rightly overruled by the trial Court.
2. What is the implication of the failure of the PW8, the Investigating Police Officer to conclude his evidence and present himself for cross-examination?
3. Can the trial Court convict the appellant in the absence of the evidence of the Investigating Police Officer?
The respondent’s brief of argument was settled by P.A. OKOH, Assistant Director, Ministry of Justice, Delta State and filed on 12/10/2020. It was deemed as properly filed and served on 22/6/2. The respondent formulated the following issues for determination:
1. Whether in view of the evidence on record, the no case submission made by the appellant was rightly overruled by the learned trial judge.
2. Whether the evidence of PW8 (the IPO) who testified in chief without being cross-examined by the appellant before his demise is evidence upon which the trial Court can rely.
I have read the issues formulated by counsel to both parties. I find the appellant’s issue 1 which is the same as respondent’s issue 1 and which subsumes all other issues to be apt for the determination of this appeal.
It is the contention of the appellant’s counsel that the appellant’s no case submission was wrongly overruled by the lower Court because none of the witnesses, PW1-PW7 or the exhibits tendered mentioned or linked the appellant to the offences for which he was charged. He submitted that in criminal matters, the police even though not an eye witness must testify statutorily in order to present a balance account of what transpired. He referred to AIGBADION V. STATE (2000) 7 NWLR AT 666 AT 690-692 (7 – 10). He further submitted that the prosecution having failed to present PW8 for cross-examination and having failed to present his death certificate, the Court should have ignored his evidence and expunge all the documents tendered through him from the record. He referred to FAGORIOLA V. FRN (2013) 35 WRN PAGE 29 (35-40), ABDULKADIRI GUSAU V. C.O.P (1968) NMLR 329.AL-MUSTAPHA V. STATE (2013) 34 WRN PAGE 151-152(40-50).
In response, the respondent’s counsel submitted that what the considers at the stage of no case submission is not whether the evidence against the accused is sufficient to justify a conviction but whether the prosecution has made out a prima facie case requiring at least some explanation from the accused person. On the conditions for upholding a no case submission, he referred to Section 286 of the Criminal Procedure Law, Cap C22, Volume 1, Laws of Delta State,2006. See IBEZIAKO V. C.O.P (1963) 1 SCNLR,99. ADEYEMI V. THE STATE (1991) 6 NWLR (PT. 195) 1, AJIBOYE V. THE STATE (1995) 8 NWLR (PT. 414) 408 AND UBANATU V. C.O.P (1999) 7 NWLR (PT.611) 512 AT 514. He submitted further that the statements of the 1st, 2nd and 6th accused persons admitted as exhibits H1, H2, H3, K, K1, N and N1 and those of the appellant, Exhibits J and J1 clearly linked the appellant to the offences for which he was charged.
On the evidence of PW8, counsel submitted that the evidence of a witness who died without completing his evidence is still relevant and legal but the weight to be attached to such evidence depends on the circumstances of the case. He referred to MAFIDOR OKWA V. IYERE IWEREBOR & ORS (1969) NSCC VOLUME 6 PAGE 73 AT 75, CHUKUWUOCHA V. ONUOHA (1991) 4 NWLR (PT.184) AT 237 ANDONYENWE& ANOR V. ANAEJIONU (2014) LPELR- 22495(CA). He argued that though PW8 was not cross-examined on the appellant’s statements, Exhibits J and J1 before his death, the statements having been tendered without any objection cannot be expunged from the record.
RESOLUTION
Section 286 of the Criminal Procedure Law, Cap C22, Volume 1, Laws of Delta State,2006 provides that: “If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence the Court shall, as to that particular charge, discharge him.”
The defence always utilise the above provision of the CPL to make a no case submission. The meaning of a no case has been stated in several decisions of this Court and the Supreme Court. See FAGORIOLA V. FEDERAL REPUBLIC OF NIGERIA (2013) LPELR-20896(SC) AT 30-31 (F-A), IKUFORIJI V. F.R.N (2018) LPELR-43884(SC) AT 20-21 (G-A). On the authority of the above cases, no case submission means that there is no evidence on which the Court would convict even if the Court believe the evidence adduced by the prosecution.
A no case submission can only be upheld if any of the following conditions exists: 1. Where there is no legally admissible evidence to prove an essential element of the alleged offence. 2. Where the evidence led by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Tribunal would safely convict on it. See AGBO & ORS V. THE STATE(2013) LPELR-20388(SC) AT 15-16 (F-A), AMAH V. FEDERAL REPUBLIC OF NIGERIA (2019) LPELR-46347(SC) AT 38 (C-G).
The duty of the Court at the stage of a no case submission is stated by the Supreme Court Per KEKERE-EKUN, J.S.C in COMMISSIONER OF POLICE v. MR. EMMANUEL AMUTA (2017) LPELR-41386(SC) AT 27-28 F-F) as follows:
“It is settled law that a submission that there is no case to answer by an accused person means that there is no evidence upon which, even if the Court believed it, it could convict. In other words, where there has been no evidence to prove an essential element of the offence, or where the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Court or Tribunal can safely convict on it. At the stage when a no case submission is made, the trial Court is not called upon to express an opinion on the evidence before it. The credibility of the witnesses is not in issue at this stage. All that the Court is required to do is to determine whether or not there is any legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the record. If it does not, the submission is bound to fail. See Daboh v. The State (1977) All NLR 146 per Udo Udoma, JSC also found in (1977) LPELR – 904 (SC) 1 AT 15-16 A – A, Ekwunugo v. F.R.N. (2008) 15 NWLR (Pt.111) 630, Ibeziako v. C.O.P. (1963) 1 SCNLR 99,Owonikoko v. The State (1990) 7 NWLR (Pt.62) 381 and Agbo v. The State (2013) 11 NWLR (Pt.1365) 377.”
See also INSPECTOR GENERAL OF POLICE v. MATTHEW SONOMA (2021) LPELR-53381(SC) AT 15-16 (C-D).
I have carefully perused the entire evidence on record. None of the witnesses except PW8 who was the IPO knew or had anything to do with the appellant. PW8 testified that he arrested the appellant based on the statement of the 1st accused person. He tendered a statement said to have been recorded by another IPO as Exhibit J. He recorded the additional statement of the appellant admitted as Exhibit J1. Unfortunately, he could not be cross-examined by the appellant before his death. The position of the law on the evidence of a witness who died after his evidence in chief but before cross-examination was stated by the Supreme Court in OKWA V. IWEREBOR & ORS (SUPRA), (1969) LPELR-25565(SC) AT 3-4 (B-D) Per ADEMOLA, J.S.C as follows:
“The law as to the position of evidence of a witness who died before cross-examination on his evidence in chief appears to be settled. It is clear that it is accepted that such evidence is legal but the weight to be attached to such evidence should depend upon the circumstances of each case. In Rex v. Doolin: Jebb C.C. 123 where a prosecution witness was taken seriously ill whilst under cross-examination, his evidence was taken into consideration, and the conviction based on it was held good. And in Davies v. Otty (1865) 34 L.J. Ch 252 where a witness gave her evidence on 28th August and she died two or three days afterwards so that it was not possible to cross-examine her on her evidence, Lord Romilly Master of the Rolls said:- “but as there was no impropriety and nothing wrong in examining her, and as she was not kept out of the way to prevent cross-examination, I must receive her evidence and treat it exactly as I should the evidence of any other witness who, from any other cause whatever, either had not been or could not have been cross-examined.”
All English authorities as well as Indian authorities on this point were referred to in the Indian case Kuer v. Rajab Ali, All I.R. (1936) Patna 34. In our judgment therefore, the learned judge was in error when he held that it was fatal for the plaintiff’s case that the learned magistrate relied on the evidence of the witness who died without being cross-examined on his evidence in chief.”
See also SALAU v. THE STATE (2019) LPELR-48114(SC) AT 10-11(G-A), OTOKI V. Al-AKIJA (2012) LPELR- 7994 (CA) AT 15-20 (G-C), ONYENWE & ANOR V. ANAEJIONU (2014) LPELR-22495(CA) AT 36-37 (A-B).
On the authority of the above cases, I am of the view that the correct position of the law on the evidence of a witness who dies before cross-examination is that the evidence is not rendered inadmissible or invalid or irrelevant. It is not the law that such evidence becomes automatically irrelevant and must be expunged from the record. Admissibility of the evidence already given by a dead witness not cross-examined before his death is not an issue, the probative value it may attract is the issue. Such evidence is legal but the weight to be attached to it depends on the circumstances of the particular case. See OKWA V. IWEREBOR & ORS (SUPRA).
Since the Court is not concerned at the stage of no case submission with the probative value of the evidence adduced but strictly whether there is legally admissible evidence on record which if believed establishes a prima facie case against the accused, the Court has no business looking into the probative value of the evidence of PW8 whether oral or documentary. That exercise is reserved for consideration during judgment. In AJIBOYE & ANOR v. THE STATE (1995) LPELR-300(SC) AT 6(A -D), the Supreme Court Per KUTIGI, J.S.C held that:
“It must be recognised that at the stage of a no case submission, the trial of the case is not yet concluded. At that stage therefore, the Court should not concern itself with the credibility of witnesses or the weight to their evidence even if they are accomplices. The Court should also at this stage be brief in its ruling as too much might be said which at the end of the case might fetter the Court’s discretion. The Court should again at this stage make no observation on the facts. (See for example R v. Ekanem(1950) 13 WACA 108, Chief Odofin Bello v. The State (1967) NMLR 1, R. v. Coker & Ors 20 NLR 62).”
As stated earlier, the appellant was charged for conspiracy to steal and stealing in counts 1 and 2. In order to establish a prima facie case of conspiracy, the prosecution needs to prove that: (a) there was an agreement between the accused persons to do or cause to be done some illegal act or some act which is not illegal but by illegal means. (b) That some act besides the agreement was done by one or more of the accused persons in furtherance of the agreement. (c) That each of the accused persons individually participated in the conspiracy. The law is trite that the prosecution needs not to prove that the individuals were in direct communication with each other or directly consulting together but that they entered into an agreement with a common design. See MUSA V. STATE (2016) LPELR-42803 (SC) AT 25-26 (E-D). It is settled that conspiracy can hardly be proved by direct evidence since planning or plotting is done in secrecy. Criminal intent and design are never exhibited or displayed in the open. Therefore, conspiracy is a matter deducible by inference from certain criminal acts of the parties concerned done in pursuance of their common criminal intention. See OKIEMUTE V. THE STATE (2016) LPELR-40639(SC) AT 37-38 (F-C). MUSA YUSUF V. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR-43830(SC) AT 37 (C).
In respect of the charge of stealing in count 2, the elements of the offence of stealing are: 1. Ownership of the thing stolen. 2. That the thing stolen is capable of being stolen.3. The accused person has the intention of permanently depriving the owner of the thing stolen. 4. That the accused was dishonest. 5. That the accused unlawfully appropriated the thing stolen to his own use. See ADEJOBI & ANOR v. THE STATE (2011) LPELR-97(SC) AT 38-39 (G- B), AMAH V. FEDERAL REPUBLIC OF NIGERIA (SUPRA) AT 41 (C-E), 55(G-C), CHYFRANK NIGERIA v. FEDERAL REPUBLIC OF NIGERIA (2019) LPELR-46401(SC) AT 12 (C-E).
I have perused the evidence of PW8 and the statements of the appellants on pages 63-70 of the record of appeal. The appellant in his statement, Exhibit J made on 20/5/95 stated that he deals in electrical materials. Sometimes in November, 1994 he was contacted by one Emeka who also deals in electrical materials that he was looking for a place to keep two containers. He contacted a friend, Samuel Agwu who had a spacious place for the two containers. Emeka did not tell them the source or content of the containers. The two containers were dropped in Agwu’s compound. However, in Exhibit J1 made on 17/8/95 he stated that Emeka told him that his friend from Nigeria Port Authority wanted to give him some electrical items to market and wanted him to join in the business. He agreed to join the business. Emeka later asked him if there is a place to keep the two containers. Emeka later told him that the contents of the containers were different from what he was told. The containers contained cables and other items which they did not know their names. Arrangements were made on how to sell the items and he, the appellant contacted some people he knew in Lagos. Some of the items were sold. He narrated what happened to the remaining items. He finally stated that he received a sum of Thirty Thousand Naira (N30,000.00) as his own share in the business. Exhibits J and was tendered without an objection. The only objection in respect of Exhibit J1 was that the appellant did not make the statement. The lower Court rightly ruled that the objection goes to the weight to be attached to the statement.
I have considered the statements of the appellant particularly in Exhibit J1. If the statement is believed and considered against the elements of the offences of conspiracy and stealing stated above, the appellant has some explanation to do in respect of those charges having stated in his statement that he agreed to take part in the business, assisted in securing a place for safe keeping of the containers, contacting buyers for some of the items and receiving a share of the proceeds of the alleged crime. There is definitely a ground for proceeding against the appellant in respect of the charges of conspiracy to steal and stealing.
As regards the charge of forgery in count 4, Section 465 of Criminal Code Law, Cap C22, Volume 1, Laws of Delta State, 2006 which provides that:
“A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Nigeria or elsewhere to the prejudice of any person, or with intent that any person may be in the belief that it is genuine, be induced to do or refrain from doing any act, whether in the state or elsewhere, is said to forge the document or writing…”
The elements of the offence of forgery are: 1. The making of a document or writing knowing it to be false. 2. That the accused forged the document in question. 3. The intent that it may be used or acted upon as genuine. See AWOBOTU V. THE STATE (1976) LPELR-649(SC) AT 31(C-F), MICHAEL ALAKE V. THE STATE (1992) LPELR-403(SC) AT 10 (B-C), NDOMA-EGBA V. AFRICAN CONTINENTAL BANK PLC (2005) LPELR-1973(SC) AT 21-22 (E-B), STANILAUS v. FEDERAL REPUBLIC OF NIGERIA (2020) LPELR-50793(CA) AT 7-8 (F-F).
There is no evidence to show prima facie that the appellant knew anything about the alleged forgery of the Bill of Lading said to have been used to secure the release of the containers from the port or that he forged the document. He in fact stated in Exhibit J that he did not see the document. In a charge of forgery, the most important element to be proved is that the accused forged the document in question. See ALAKE V. THE STATE (1992) LPELR-403(SC) AT 10(C),IDOWU V. STATE (1998) LPELR-1428(SC) AT 8 (F-G). That evidence is glaringly lacking in this case. There is also no evidence from which it can be inferred that the appellant agreed or conspired with any of the other accused persons to forge the document.
Thus, in the light of all that I have posited above, the appeal succeeds in part. The evidence adduced by the prosecution at the lower Court established a prima facie case against the appellant to warrant him being called upon to enter his defence in respect of counts 1 and count 2 which are conspiracy to steal and stealing. The no case submission in respect of those counts was rightly rejected by the lower Court. The appellant shall enter his defence in respect of those counts if he so wishes.
The no case submission in respect of counts 3 and 4 is hereby upheld. The appellant is hereby discharged of those charges. The ruling of the High Court of Delta State delivered in Charge No. W/1C/98 on 10/6/2012 by Onajite – Kuejubola J., in respect of counts 1 and 2 is hereby affirmed. The ruling in respect of counts 3 and 4, conspiracy and forgery is hereby set aside.
JOSEPH EYO EKANEM, J.C.A.: I read before now a draft of the judgment of my learned brother, BOLAJI-YUSUFF JCA, which has just been delivered. I agree with the reasoning and conclusion therein that the appeal succeeds in part.
A submission of no case to answer may be properly made and upheld:
i) When there has been no admissible evidence to prove an essential element of the alleged offence either directly, circumstantially or inferentially.
ii) When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Tribunal can safely convict on it.
See Ibeziako v. C.O.P (1963) 1 ALL NLR 61, Abogede v. State (1996) 5 NWLR (Pt. 448) 270 and C.O.P. v Amuta (2017) 4 NWLR (Pt. 1556) 379.
When a no case submission is made, the trial Court is not called upon to express an opinion or make a finding on the evidence placed before it so far. It is only expected to determine whether or not there is legally admissible evidence linking the accused person with the commission of the offence with which he is charged. See Abru v. State (2011) 17 NWLR (Pt. 1275) 1.
In this instance, there was no legally admissible evidence linking the appellant with the offences in counts 3 and 4. Calling upon him to enter his defence thereon negated the presumption of innocence he enjoys under Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See Suberu v. State (2010) LPELR-3120 (SC).
However, a prima facie case having been made out in respect of counts 1 and 2, the trial Court was right in over-ruling the no case submission and calling upon him to defend himself on those counts.
It is on account of the foregoing, that I also allow the appeal in part and discharge the appellant in respect of counts 3 and 4. The decision of the trial Court over-ruling the no case submission in respect of counts 1 and 2 is affirmed by me.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the advanced copy of the judgment just delivered by my learned brother, MISTURA OMODERE BOLAJI-YUSUF JCA and I agree with the reasoning and conclusions therein and state that my Lord has covered the field and I have nothing more to add.
Appearances:
No appearance For Appellant(s)
O. Eyesio, Senior State Counsel, with him, M.L. Johnson, Pupil State Counsel, Ministry of Justice For Respondent(s)
