FAITH AJUFO V. THE STATE
(2013)LCN/5987(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2013
CA/L/772/2010
RATIO
NO CASE SUBMISSION: ESSENCE OF A NO-CASE SUBMISSION
The essence of a no-case submission lies in the contention that the evidence of the Prosecution has failed to establish a prima facie case or establish the ingredients of the offence against the Accused to make it imperative for the Court to call upon the Accused to defend himself or answer to the charge- see Tongo V. C.O.P (2007) 12 NWLR (Pt. 1049) 525 SC.PER AMINA ADAMU AUGIE, J.C.A.
NO CASE SUBMISSION: WHAT THE COURT CONSIDERS WHEN A NO-CASE SUBMISSION IS MADE
The bottom line is that what the Court usually considers, where a no-case submission is made, is 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 – see Suleiman V. State 15 NWLR (Pt. 1164) 258, wherein it was observed –
“Where a no-case submission is made – – the trial Court at that stage is not expected to express an opinion on the evidence, it is only called upon to prima facie find whether on the evidence adduced there is admissible evidence linking the accused person with the offence with which he is charged”.PER AMINA ADAMU AUGIE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
FAITH AJUFO Appellant(s)
AND
THE STATE Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Appellant and three of her co-workers at a V-Mobile Outlet on Ogunlana Drive, Surulere, Lagos, were arraigned before the High Court of Lagos State, and charged with the attempted murder of Emmanuel Orjika. She pleaded not guilty to the Charge and in proof there-of, the Prosecution called 4 witnesses – the alleged victim, Emmanuel Orjika as PW1; his brother Cyril Orjika, as PW2; Police Sergeant Sikiru Abdullahi, as PW3, and Inspector Stephen Deri, as PW4.
At the close of the case for the Prosecution, the Appellant filed a “Notice to rely on a No-Case Submission”; the Grounds for the Application are that-
1. The Prosecution failed to prove the essential elements of the offence of attempted murder.
2. The evidence adduced by the Prosecution has been so discredited as a result of cross examination and is so manifestly unreliable that no reasonable Tribunal could safely convict on them.
Written addresses were duly filed and adopted, and in his Ruling delivered on 5/2/2010, the learned trial Judge, O. A. Williams, J., concluded as follows –
“I do believe the accused persons have been linked with the crime and they have a case to answer. I do not agree – – that the testimonies of the Prosecution witnesses has been so discredited by the cross-examination as to warrant a finding that there is no case to answer. Accordingly, the no-case submission fails and is overruled”.
Dissatisfied with the Ruling, the Appellant filed a Notice of Appeal containing 3 Grounds of Appeal in this Court, and Briefs of Argument were duly filed in line with the Rules of this Court. In the Appellant’s brief prepared by Emmanuel A. Oyebanji, Esq., David O. Aransiola, Esq., and Eniola A. Agbelusi, Esq., it was submitted that the following two issues call for determination in this appeal –
1. Whether or not the essential elements of the offence of attempted murder has been proved by the Respondent against the Appellant in the circumstances of this case.
2. WHETHER OR NOT THE EVIDENCE ADDUCED BY THE Respondent before the lower Court against the Appellant has been so discredited as a result of cross-examination or so manifestly unreliable that no reasonable tribunal could safely convict on it.
The Respondent, however, submitted in its Brief prepared by Mrs. E. I. Alakija, that the only issue for determination in the appeal, is as follows –
“Whether the Respondent has discharged the onus placed on it by Law in establishing a prima-facie case of the offence for which the Appellant is charged”.
I will adopt the issue formulated by the Respondent in this appeal because it highlights the question that comes to the fore when considering a submission that an accused person has no case to answer in a criminal trial. Nonetheless, we must consider the background facts in resolving the issue in this appeal.
PW1, the alleged victim, testified that after he realized that products he bought from the V-Mobile outlet was not working, he went back to complain. The next day, they took him to their Head Office at Victoria Island, and when he came back, he met people queuing up to buy their products, and when he told them the products were not working, a lot of them left, which angered the workers, and they started calling him a thief. PW1 further testified that
“- – About 5 ladies, including the [Appellant] ran into their office, which was being renovated, and brought out a cable. They gave the cable to the 1st Accused person and they tied me up. The 1st and 2nd Accused persons tied me up with the help of the others, while they were at it; the 2nd Accused was hitting my head with a gun. – The [Appellant] and 4th Accused were the ones passing the others the wire/cables with which to tie me up. Then they stopped a motorcycle rider and forcefully took his fuel. They poured the fuel into a gallon wanting to pour it on me before setting me on fire. They also got condemned tyres. – – The 3rd Accused (i.e. Appellant) carried the gallon and handed it to them while abusing me.- – Had it been that the Police wasted another two minutes, I would have gone up in flames”.
His brother, Pw2 testified that a motorcyclist ran to their compound and shouted that a tenant, who says he lived there, was about to be set ablaze at the V-Mobile outlet at Ogunlana Drive. He quickly ran there only to see his brother, Pw1, tied hand and foot. On his way to the police station he saw a Police patrol vehicle with officers, who then followed him, and, eventually rescued Pw1 from the Appellant, the other Accused persons and their cohorts. He also testified that he saw the Appellant later at the Police Station.
PW3 is the I. P. O., who initially investigated the case, and he obtained statements from everyone involved. He also visited the scene, and confirmed that there was, indeed, evidence of some fracas. Although, he initially said that no exhibits were handed over to him, he confirmed that he received a v-mobile sim certificate and that he saw pw1 with a torn shirt. He then gave him a medical form to go to the hospital when pw1 complained of body pain.
Pw4 is the I.P.O., who later investigated the case at the state CID, Panti.
He testified that he received the case file from an earlier team that could not conclude their investigation because of another assignment given to them; and that he also obtained statements from the complainants and Accused persons, and visited the scene of crime. He tendered all the Exhibits that he received from the earlier team, which includes a v-mobile sim pack, a torn t-shirt, and a black Nitel cable. He confirmed from his investigations that there was, indeed, an attempt on the life of Pw1 by the Appellant and the other Accused persons.
After setting out the law on the subject, and reviewing the evidence the of Prosecution witnesses, the lower court observed as follows in its Ruling-
“- – Each witness narrated a stage in the occurrence or the investigation of the crime. PW1 and PW2 were eye witnesses who identified the accused persons. PW1, the victim, testified that he was beaten and tied up by the 1st, and 2nd Accused persons -while the Appellant and 4th Accused were the ones, who passed them the cable – He added that the 3rd Accused (i.e. Appellant) carried the gallon they had forcefully taken off a motorcyclist – It cannot be said that “there is before the court no legally admissible evidence linking the accused persons with the commission of the offence”.
The lower court then concluded that the Prosecution’s evidence – “is sufficient to establish a prima facie case as it shows the presence of the ingredients of: an act and an intention required to prove the offence of attempted murder”. In urging this court to set aside the lower court’s Ruling, the Appellant argued that the charge sheet did not say how she attempted to murder PW1, and the burden is on the Respondent to prove the manner in which she did so; and that the lower court did not thoroughly review the testimonies of the said witnesses before drawing up conclusions, and consequently, come up with the wrong decision, and she gave instances of its wrongful evaluation of evidence.
For instance, aside from the mere mentioning of “rope, gallon, fuel, used tyres, gun etc.”, none of the items were tendered in evidence for the evaluation of the lower court to justify its belief; there is no evidence that fuel was poured on PW1 or that he was set ablaze; and that is no evidence that any lighter or fire was made to justify the establishment of a prima facie case against her.
She referred to sections 4 and 320 of the criminal code, and submitted that to constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation for the commission of the offence, citing Ozigbo v. C.O.P. (1976) 1 All NLR 133, Jegede v. The State (2011) 7 SC (pt. 1) 122; that the totality of the Prosecution’s evidence has not proved beyond reasonable doubt that she was going to set PW1 on fire; that the prosecution must prove the act that was an attempt to murder PW1, and also her intention to kill him, citing Omonuju v. The State (1976) ALL NLR 301, Agumadu v. The Queen (1963) ALL NLR 301); that apart from not proving any particular action of hers that constitutes an attempt to kill, the prosecution did not also prove any intention on her part to kill PW1; and that looking at the evidence of PW1, there was no remote basis upon which there could be an intention to kill him.
She also argued that his evidence shows a purely business transaction with minor complaint/disagreements; that there was no nexus between what happened before the alleged incident and at the alleged incident to warrant the court’s inference of an intention to kill pw1; that his evidence was so inconsistent and irreconcilable to the extent that the staff that were trying to assist him with the malfunctioning bumper card would turn around to take his life all in one breath; that the Court has to consider the missing link in PW1’s story showing her intention to murder him since intention is a fundamental element of the offence of attempted murder for which she is being charged; and that the Court made an erroneous finding on her intention to kill PW1.
The Respondent cited Ubanatu V. C.O.P (1997) 7 NWLR (pt.616) 512 and Njoku v. C.O.P. (1999) 10 NWLR (Pt. 622) 193, on no-case submissions, and submitted that at this stage, the court is only to determine whether the Prosecution has made out a prima facie case, and not to evaluate evidence or consider the credibility of witnesses, citing Daboh v. The State (1977) 5 SC 197, The State v. Emedo (2001) 12 NWLR (Pt.726) 131; that prima-facie refers to evidence, which if un-contradicted and if believed, will be sufficient to prove the case, citing Ajidagba v. The State (1958) 3 FSC 5; that what the Court must consider is whether the evidence is such that discloses a prima-facie case against the Appellant, which requires at least some explanation from her, and not whether the evidence can sustain a conviction, citing R. V. Ojuwa Ogucha (1959) 4 FSC 64; that it is not necessary at this stage for the lower court to determine whether the evidence available is sufficient to justify a conviction, citing Ekpo v. The State (2001) 7 NWLR (pt. 712) 292, Odido V. The State (1995) 8 NWLR (Pt. 369) 88, Ajiboye V. The State (1994) 8 NWLR (pt. 364) 587; and that prima facie case is not the same with proof of a crime, which occurs after the close of trial, citing Abacha v. The State (2001) 3 NWLR (pt. 699) 35.
The Respondent also cited Section 320 of the Criminal Code and Iden V. The State (1994) 8 NWLR (Pt. 365) 719, and submitted that the evidence shows that an incident occurred on that day involving PW1 and the Appellant, which led to his sustaining injuries that were not self-inflicted; that the weapon used is fuel (petrol) AND TYRES, and their intention was to burn up PW1 like a common thief; that it is common in Lagos to see a mob mete out jungle justice on innocent victims by taking the law into their hands and burning them up; that evidence showed that PW1 was tied hand and foot to prevent his escape as he had been labeled a robber and a thief to the excitement of onlookers, who witness such dastardly act every other day on the streets of Lagos, and would not have prevented it believing that he deserved what he was getting; that the proximity of the weapons intended to be used was also not in dispute as they were right there in public view beside PW1; that the steps taken were not merely preparatory but if they not been stopped by the intervening patrol officers, they would have completed their plan to burn up pw1; that their intention was demonstrated by the overt act of tying him up and employing petrol and tyres to burn him; and that where the prosecution has adduced a prima facie case against the Appellant that would warrant a defence to the charge, there is need for her to give an explanation as to the role she played.
In response to the Appellant’s argument under her issue 1, which is what we are considering, the Respondent submitted that she delved into the merit or otherwise of the main suit, which is what the lower Court tactfully avoided in its Ruling; that most of her arguments should have been reserved until final addresses are filed in the substantive suit before the court as they are not relevant at this stage, citing Ubanatu v. C.O.P. (supra); and that the issue before the lower court in this case was whether there was sufficient ground for proceeding, and the lower court has decided the issue in the affirmative.
But the Appellant countered in her Reply Brief that contrary to what the Respondent argued, before a prima facie case can be established, the essential ingredients of the alleged offence must firstly be proved by the prosecution; that in a case of attempted murder, as in this case, before the Court can deduce whether a prima facie case has been established against her, she must have been linked inextricably with the offence and the essential ingredients of the offence proved against her; that the evidence must have been adduced, evaluated and then the Court will determine whether it believes the evidence or not in determining whether a prima facie case has been established; that going by the myriad of contradictory evidence at the trial, the lower Court was wrong to hold that a prima facie case has been established against her; that the Respondent’s assertion that the main ingredient “is intention to kill”, is not a true reflection of the law as stated in Section 320 of the Criminal Code Law; and that the two ingredients of attempted murder – (i) the overt act which constitutes the offence, and (ii) the intention to commit the offence, must be present in determining the commission of the offence of attempted murder, citing Omonuju V. The State (supra). As regards issue 1, she submitted that the Respondent has the burden of proving (i) the physical act by her to commit the complete offence (actus reus), and (ii) an intention to kill (mens rea), which are the essential elements of the offence of attempted murder that must be proved before the lower court can hold that she has a case to answer, citing Idowu v. The State (2000) 7 SC (Pt. II) 50; and that her submission that the “essential ingredients of the offence of attempted murder must be proved does not tantamount to delving into the substantive suit as contended by the Respondent, but it is the minimum requirement of the law that in a charge of attempted murder, the Prosecution must prove the actual act of the accused person, which would be taken as an attempt to murder the complainant”.
The Appellant had a lot more to say in her main Brief and her Reply Brief about contradictions in the evidence of the Prosecution witnesses, but it will not be necessary to go into all the details because the question at this stage is not whether there was sufficient evidence to convict or acquit the Appellant – see Mohammed V. The State (supra), where Tabai, JSC, explained as follows –
If – – a submission is made that there is no case to answer, 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 the evidence is such that a reasonable Tribunal might convict. If a reasonable Tribunal might convict on the evidence so laid before it, there is a case to answer”.
See also Daboh V. The State (1977) 5 SC 122, where Udo Udoma, JSC, held –
“It is well settled that in the case of a trial by jury, no less than in a trial without a jury, however slight the evidence linking an accused person with the commission of the offence charged might be, the case ought to be allowed to go to the jury for their findings as Judges of fact and their verdict. Therefore, when a submission of no prima facie case is made on behalf of an Accused Person, the trial Court is not thereby called upon at that stage to express any opinion on the evidence before it. The Court is only called upon to take note and to rule accordingly that there is before the Court no 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 such is not the case, then the submission is bound to fail”.
The essence of a no-case submission lies in the contention that the evidence of the Prosecution has failed to establish a prima facie case or establish the ingredients of the offence against the Accused to make it imperative for the Court to call upon the Accused to defend himself or answer to the charge- see Tongo V. C.O.P (2007) 12 NWLR (Pt. 1049) 525 SC. The bottom line is that what the Court usually considers, where a no-case submission is made, is 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 – see Suleiman V. State 15 NWLR (Pt. 1164) 258, wherein it was observed –
“Where a no-case submission is made – – the trial Court at that stage is not expected to express an opinion on the evidence, it is only called upon to prima facie find whether on the evidence adduced there is admissible evidence linking the accused person with the offence with which he is charged”.
In this case, there was evidence that there was a “fracas” or “altercation” between PW1 and some of the staff at the V-mobile outlet at Ogunlana Drive, which included the Appellant. PW1 was labeled a “thief” and “armed robber”, and was beaten and tied up preparatory to being set ablaze by some of them. The Appellant allegedly brought the cable he was tied up with from her office, and passed it on to those who tied him up. She is also alleged to have “carried the gallon of fuel forcefully taken of a motorcyclist”, and is one of the workers arrested at the scene and taken to the Police Station after PW1 was rescued.
Her argument that the lower Court did not review the evidence before it properly because it mentioned that “4 witnesses testified that the 4 Accused Persons were found and arrested at the scene”, whereas it also noted that PW2 testified that he saw her at the Police Station, is neither here nor there.
What is important at this stage is whether there is prima facie evidence linking her with the offence charged, and prima facie evidence is evidence, which on the face of it, is sufficient to sustain the charge against the accused – see Shatta V. F.R.N. (2009) 10 NWLR (Pt. 1149) 403, where this Court adopted the definition in the case of Star Sigh v. Jitendrana-thsen (1931) I.L.R. 59, thus –
“What is meant by prima facie (case)? It only means that there is ground for proceeding. But a prima facie case is not the same as proof which has to find whether the accused is guilty or not guilty, and the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused”. (Per Lord Williams, J.).
In this case, there is evidence to link the Appellant with the offence charged, and the lower Court was certainly right to find that she has a case to answer.
The end result is that the appeal fails, and it is dismissed. I do hereby affirm the decision of the lower Court in its Ruling delivered on 5/2/2010.
CHIMA CENTUS NWEZE, J.C.A.: I had the advantage of reading, in advance, the leading judgment which my venerable Lord, Augie JCA just delivered now: a judgment cast in mellifluous prose! I, entirely, endorse the effervescent reasoning of my erudite Lord.
Learned counsel for the appellant would appear to rate two dissimilar concepts in our accusatorial jurisprudence, namely, prima facie case and proof beyond reasonable doubt, equiponderantly! With profound respect, this sort of fallacious obfuscation of settled concepts must be dissipated without much ado.
In a ruling in a no-case submission, the trial court must, with considerable circumspection, endeavour to avoid the temptation of delving into the exercise of evaluation of evidence or the consideration of the credibility of witnesses, State v. Emedo (2001) 12 NWLR (pt 726) 131; Ekpo v State (2001) 7 NWLR (pt 712) 292; Odido v. State (1995) 8 NWLR (pt 369) 88; Dadoh v. State (1977) 5 SC 197. This must be so for prima facie case is not the same with proof of a crime which is determined after the close of trial, Abacha v. State (2001) 3 NWLR (pt. 699) 35.
I, entirely, agree with the leading judgment that in this case, the prosecution marshalled evidence sufficient enough to sustain the charge against the defendant/appellant. The lower court was, therefore, on firm ground in the finding that she had a case to answer.
It is for these reasons and the more detailed reasons in the leading judgment that I agree that this appeal should be, and is hereby dismissed. I abide by the consequential orders in the leading judgment.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, AMINA ADAMU AUGIE JCA. I agree with the reasoning and conclusions therein. The contention of the Appellant is that the lower court erred in overruling her no case submission when the prosecution failed to prove the essential elements of the offence of attempted murder. The Appellant in other words is saying that at the close of the prosecution’s case, the evidence led was insufficient to require her to make a defence. I do not think that is the position. The evidence led has been fully set out in the lead judgment. Weighty allegations were made against the Appellant. The allegation is that she and her co-accused, fellow colleagues of V-Mobile incensed by the alleged victim (PW1)’s words to their customers who had queued up to buy their products that the products were not working causing them to disperse unleashed mayhem on him; calling him a thief and putting things in place to set him on fire. But for the quick intervention of PW2, a brother to PW1 and the Police, he would have been burnt to death. These are serious allegations made by prosecution witnesses including PW4 the IPO who confirmed that from his investigations there was indeed an attempt on the life of PW1 by the Appellant and the other accused persons. What the Appellant wanted the lower court to do at the end of the Prosecution’s case when she entered her no case submission was for the court to evaluate the credibility of the witnesses. That surely would be a wrong procedure. At this stage of the trial the court is not concerned with the truthfulness or otherwise of the allegations. The allegations have been made. There is need to hear from the other side. In Aituma v. State (2007) 5 NWLR (Pt. 1028) 466; the court observed:
“When a no case submission is made on behalf of an accused person, the trial court is not thereby called upon at that stage to express any opinion on the evidence before it. The Court is only called upon to take note and to rule accordingly that there is before the court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged.”
What is required of the court is to determine whether the prosecution has made out a prima facie case which requires at least some explanation from the Appellant. The evidence led by the prosecution is such that the appellant ought to be called upon to explain what happened. It would in my view be a travesty of justice in the circumstances of this case to uphold a no case submission. In Emedo & ors. V. The State (2002) 15 NWLR (Pt. 789) 196 Mohammed JSC observed:
“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.”
See also Chuka v. The State (No. 2) (1988) NWLR (pt. 86) 36; Ajiboye v. State (1995) 8 NWLR (pt. 414) 408; Tongo v. C.O.P. (2007) 12 NWLR (Pt 1049) 525.
I too hold that the lower court was right in holding that the Appellant has a case to answer. I also hold that the appeal lacks merit and ought to be dismissed. I dismiss it and affirm the ruling of the lower court delivered on 5/2/2010.
Appearances
E. A. Oyebanji, Esq. with P. C. Anah, Esq.
K. B. Daminabo (Mrs.) and M. A. OlarenwajuFor Appellant
AND
Mrs. O. A. Akin-AdesomojuFor Respondent
