FRN v. BULAMA & ORS (2021)

FRN v. BULAMA & ORS

(2021)LCN/15115(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Wednesday, March 03, 2021

CA/G/33C/2020

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

FEDERAL REPUBLIC OF NIGERIA APPELANT(S)

And

DR ABDU BULAMA 2. HON MOHAMMED KADAI 3. ABBA GANA TATA 4. MOHAMMED MAMU 5. HASSAN IBN JAKS RESPONDENT(S)

RATIO

WHAT A “NO-CASE SUBMISSION” ENTAILS; DUTY OF THE COURT WHERE A NO CASE SUBMISSION IS MADE

In UZOAGBA & ANOR VS COP (2012) LPELR – 15525(SC) RHODES – VIVOUR JSC. On page 27 – 28 & explained it thus: “A no-case submission from the point of view of the defence is that the prosecution has not made out a case for the accused person to answer. In considering whether a case has been made out by the prosecution the trial Judge should not bother himself with whether he believes the evidence already led or concern himself with the vendibility of the witnesses.” What the Court should do is to examine the charge and see if evidence led by the prosecution establishes a prima facie case. That is to say whether the evidence led seems good or like the accused person, no matter law slight with the commission of the offence. NWEZE JSC. In Alex vs FRN (2018) 7NWLR PART (1618) P. 228 explains it in another way as follows:- “By way of preliminary remarks, I note that in considering a no-case submission, the Court’s duty is finite; it is only determine whether the prosecution has made out a prima facie case that is whether there is admissible evidence linking the defendant with the offence with which he is charged. Hence it neither involves the evaluation of evidence nor the consideration of the credibility of the witnesses” PER TUNDE OYEBANJI AWOTOYE, J.C.A.

DUTY INCUMBENT ON THE TRIAL COURT WHERE A NO CASE SUBMISSION IS MADE; WHEN CAN A NO-CASE SUBMISSION BE MADE; MEANING OF A PRIMA FACIE CASE

When a no case submission is made by the defence after the prosecution has closed its case, all that is required of the trial Court is to state whether or not the prosecution has made out a prima facie case requiring an explanation from the accused person(s). At the stage of ruling on the no-case submission, the trial Court is not expected to formally evaluate the evidence, ascribe probative value thereto and make specific findings of fact to determine if the evidence is sufficient to justify a conviction. It must be understood that the purport of a no case submission is that the Court is not called upon at that stage to express any opinion on the evidence before it. At that stage, the credibility of the prosecution witnesses shall not be considered as the defence is yet to present its witnesses. Where the trial Court dismisses a no case submission, its ruling should be brief so that the merits of the substantive case will not be jeopardized and/or prejudiced. See Adama V State (2018) 3 NWLR (Pt. 1605) 94; Fagoruwa V State (2014) 10 NSCC 309; Agbo V State (2013) 4 SCNJ 452. In the case of Chianugo V State (2001) LPELR-7006(CA) 2-4, Oguntade, JCA, (as he then was), held – “In Ajiboye V State (1995) 8 NWLR (Pt. 414) 498, the Supreme Court considered the nature of a no case submission and when it can be made. The Supreme Court per Kutigi, JSC at pages 414-415 observed thus: “It is also settled by a chain of authorities that a submission of no-case to answer may be properly made and upheld in the following circumstances as correctly stated by the lower Courts: 1. When there has been no evidence to prove an essential element in the alleged offence; 2. 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 could safely convict on it…” What then is a prima facie case? … It only means that there is a ground for proceeding. … But a prima facie case is not the same thing as proof which comes later when the Court 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 person…” PER JUMMAI HANNATU SANKEY, J.C.A.

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering The Leading Judgment): This is the judgment in respect of the appeal filed by the appellant on 30th April, 2020 against the ruling on no case submission delivered by Federal High Court Damaturu on 18th February, 2020.

The Respondents were the defendants before the lower Court in suit No. FHC/DM/CR/25/2018.
They were arraigned before the lower Court on a 7 count charge which read as follows:
COUNT ONE
That you, DR. ABDUL BULAMA, HON. MOHAMMED KADAI, ABBA GANA TATA, MUHAMMED MAMU AND HASSAN IBN JAKS on or about the 27th day of March, 2015 at Damaturu, Yobe State, within the Jurisdiction of this Honourable Court, did agree among yourselves to do an illegal act, to wit: conspiracy to commit Money Laundering and thereby committed an offence contrary to and punishable under Section 18(a) of the money Laundering (prohibition) Act 2011 as amended.
COUNT TWO
That you, HON. MOHAMMED KADAI on or about 27th day of March, 2015 at Damaturu, Yobe State, within the Jurisdiction of this Honourable Court, made case payment in the sum of Eighty Five Million, One Hundred Thousand

Naira only to Abba Gana Tata which transaction was never made through any financial institution and thereby committed an offence contrary to and punishable under Sections 16(1)(d) and 16(2)(b) of the money Laundering (prohibition) Act, 2011 (As Amended) respectively.
COUNT THREE
That you, ABBA GANA TATA on or about 27th day of March, 2015 of Damaturu, Yobe State, within the jurisdiction of this Honourable Court received cash payment in the sum of Eighty Five Million, One Hundred Thousand Naira (N85,100,000.00) only from Hon. Mohammed Kadai which transaction was never made through any financial institution and thereby committed an offence contrary to and punishable under Sections 16(1)(d) and 16(2)(b) of the Money Laundering (prohibition) Act, 2011 (As Amended) respectively.
COUNT FOUR
That you, HON. MOHAMMED KADAI on or about the 27th day of March, 2015 at Damaturu, Yobe State, within the jurisdiction of this Honourable Court, made cash payment in the sum of Seventy three Million, Five Hundred and Ten Thousand Naira (N73,510,000.00) only to Muhammad Mamu which transaction was never made through only financial institution and thereby

committed on offence contrary to and punishable under Sections 16(1)(d) and 16(2)(b) of the Money Laundering (Prohibition) Act, 2011 (As Amended) respectively.
COUNT FIVE
That you, MUHAMMAD MAMU no or about the 27th day of March, 2015, at Damaturu, Yobe State, within the jurisdiction of this Honourable Court, made cash payment in the sum of Seventy three Million, Five Hundred and Ten Thousand Naira (N73,510,000.00) only from Hon. Mohammed Kadai which transaction was never made through any financial institution and thereby committed an offence contrary to and punishable under Section 16(1)(d) and 16(2)(b) of the Money Laundering (Prohibition) Act, 2011 (As Amended) respectively.
COUNT SIX
That you MOHAMMED KADAI on or about the 27th day of March, 2015 at Damaturu, Yobe State, within the jurisdiction of this Honourable Court, made cash payment in the sum of Seventy Million, Four Hundred and Seventy Thousand Naira (70,470,000.00) only to Hassan IBN Jaks which transaction was never made through any financial institution and thereby committed an offence contrary to and punishable under Section 16(1)(d) and 16(2)(b) of the Money Laundering (Prohibition) Act, 2011 (As Amended) respectively.

COUNT SEVEN
That you HASSAN IBN JAKS on or about the 27th day of March, 2015 at Damaturu, Yobe State, within the jurisdiction of this Honourable Court, made cash payment in the sum of Seventy Million, Four Hundred and Seventy Thousand Naira (70,470,000.00) only to Hassan IBN Jaks which transaction was never made through any financial institution and thereby committed an offence contrary to and punishable under Section 16(1)(d) and 16(2)(b) of the Money Laundering (Prohibition) Act, 2011 (As Amended) respectively.

The prosecution called 6 witnesses after which the Respondents made a no-case submission.
After hearing the parties the learned trial Judge reviewed the evidence adduced vis-a-vis the submissions of counsel and held as follows:
“In the light of the above, I hold that the no case submission of the 1st, 2nd, 3rd, 4th and 5th Defendants succeed. I therefore uphold the no case submission of the 1st, 2nd, 3rd, 4th and 5th Defendants on Court one, while that of the 2nd defendant in relation to count two, four and six. I also uphold the no case submission of the 3rd defendant on

count Three. I equally uphold the 4th Defendant’s No case submission on count five and the 5th defendant’s no case submission on Court seven respectively.
I equally discharged both 1st, 2nd, 3rd, 4th and 5th defendants in relation to those counts charge accordingly.
Aggrieved by this decision, the appellant filed notice of appeal containing 6 grounds of appeal.
The grounds of appeal read as follows:
GROUND ONE
The learned trial Judge erred in law and thereby occasioned a miscarriage of justice when in upholding the no-case submission made by the 1st to 5th respondents in respect of counts 1, 2, 3, 4, 5, 6, and 7, His Lordship held that the prosecution must prove that two more persons must agree together to commit the alleged offence of conspiracy under Section 18(a) of the Money Laundering (Prohibition) Act 2011 (as amended) in 2012 against the 1st, 2nd 3rd, 4th and 5th Respondents in respect of counts 1, 2, 3, 4, 5, 6, and 7 of the charge. I accordingly discharge the defendant on counts 5 and 6.
GROUND TWO
The learned trial Judge erred in law and thereby occasioned a miscarriage of

justice when in upholding the no-case submission made by the 1st to 5th respondent in respect of counts 1, 2, 3, 4, 5, 6, and 7 and discharging the 1, 2, 3, 4, and 5, respondent of the said counts, His Lordship failed to give sufficient reasons for the Count’s decision, even though Exhibit “A” the submission of the withdrawal instruments from the Fidelity Bank Plc had been tendered and admitted in evidence by the count.
COUNT THREE
The learned trial Judge erred in law and thereby occasioned a miscarriage of justice when in upholding the no-case submission made by the 1st to 5th respondent in respect of counts 1, 2, 3, 4, 5, 6, and 7, His Lordship held that:
“….the prosecution witnesses Pw5 Salisu Mohammed Rabiu and PW1 Dauda Umar both EFCC officials failed to make investigation or limited their investigation as to who those funds were transferred to and for what purpose and whether it was used for the 1st to 5th respondent, converted the money to their personal use or the 1st to 5th respondent kept the money in their corporate accounts. There was no evidence to that effect from the testimonies of PW 1 to Pw6 that the money was warehouse for the 2015 General Election”

GROUND FOUR
The learned trial Judge erred in law and thereby occasioned a miscarriage of justice when in upholding the on-case submission made by the 1st to 5th respondent in respect of counts 1, 2, 3, 4, 5, 6, and 7 and discharging the 1st to 5th respondent of the said counts, His Lordship held that:
“…the prosecution simply inferred that, there were acts of money laundering on the action or inaction of all defendants on the face the financial transaction/withdrawal noticeable on Exhibit A the withdrawal instrument and the said intelligence information/report to the effect that, MRS. DIEZANI ALLISON MADUEKE warehouse certain funds with the Fidelity Bank Plc for use in 2015 presidential Elections, was not tendered in Count.”
GROUND FIVE
The learned trial Judge erred in law and thereby occasioned a miscarriage of justice when in upholding the no-case submission made by the 1st to 5th respondent in respect of count 1 to 7 and discharging the 1st to 5th respondents of the said counts; His Lordship did not rely on exhibit “A” withdrawal instrument from Fidelity Bank plc. But held that:

”…the said document exhibit “A” the withdrawal instruments had been acted upon by the 1st to 5th respondents would have at least places burden on a prima facie basis on the 1st to 5th respondents by asking them or calling upon them to offer some explanation by way of defence.”
GROUND SIX
The learned trial Judge erred in law and thereby occasioned a miscarriage of justice when in upholding the no-case submission made by the 1st to 5th defendants in respect of count 1, 2, 3, 4, 5, 6, and 7, His Lordship held that:
“I also see no evidence warranting asking all the defendants 1st and 2nd, 3rd, 4th, and 5th defendants to open their defence to the 1st count charge for conspiracy to commit Money Laundering. There is no evidence warranting asking 2nd, 3rd, 4th, and 5th defendants to also open their defence to all other counts charge. I therefore hold that, there cannot be conspiracy when the prosecution failed to established any prima facie evidence against the 1st, 2nd, 3rd, 4th and 5th defendants in count I for the offence of conspiracy under the money laundering (prohibition) act 2011 or for the offence under count 2, 4 and 6

against the 2nd defendant or for the offence under count 3 against the 3rd defendant or the offence under count 5 against the 4th defendant or for the or for the offence under count 7 against the 5 defendant under money laundering (prohibition) Act 2011 (As amended).

After transmission of record of appeal to this Court parties filed and exchanged brief of argument.
BRIEFS OF ARGUMENT
MUKHTAR ALI AHMED, appellant’s counsel filed appellant’s brief of argument on 26th November, 2020.
Learned appellant’s counsel proposed 3 issue for determination as follows:
i. Whether in the circumstances of this case, the trial Court was right in upholding the no-case submission made by the 1st, 2nd, 3rd, 4th, and 5th, respondents in respect of all counts, without giving sufficient reasons for the Court’s decision (distilled from grounds 1 and 2 of the notice of appeal)
ii. Whether the trial Court was right to have held that in upholding the no-case submission of the 1st – 5th Respondents that the evidence of Pw5 and PW 1 was limited as to who those funds were transferred to and for what purpose and whether it was used by the 1st-5th respondents’

personal use. (distilled from grounds 3 of the notice of appeal)
iii. Whether failure of the appellant to call Mrs. Diezani Alison Madueke (former minister of petroleum) is fatal to the prosecution’s case to warrant the trial Court to have discharged the 1st-5th respondents, in total disregard to exhibit A tendered and admitted by the trial Court. (Distilled from ground 4 and 5 of the notice of appeal)

MOHAMMED MONGUNO for 1st appellants brief filed 1st Respondent’s brief of argument on 19th November, 2020.
Learned counsel formulated one sole issue for determination to wit:
“WHETHER THE TRIAL COURT WAS RIGHT WHEN IT HELD THAT THE PROSECUTION FAILED TO ESTABLISH A PRIMA FACIE CASE AGAINST THE 1ST RESPONDENT AND ACCORDINGLY UPHOLD THE 1ST RESPONDENT’S NO-CASE SUBMISSION.”

Mohammed Monguno on behalf of the 2nd Respondent further filed 2nd respondents brief of argument on 19th November, 2020.
He identified one sole issue for determination thus:
“WHETHER THE TRIAL COURT WAS RIGHT WHEN IT HELD THAT THE PROSECUTION FAILED TO ESTABLISH A PRIMA FACIE CASE AGAINST 2ND RESPONDENT AND ACCORDINGLY UPHELD THE 2ND RESPONDENT’S NO-CASE SUBMISSION”.

SAIDU MOHAMMED also on behalf of the 3th Respondent filed 3rd Respondent’s brief of argument on 20th November, 2020.
Learned counsel articulated a one issue for determination as follows:
“WHETHER OR NOT HAVING REGARD TO THE EVIDENCE ADDUCED BY THE APPELLANT THE LOWER COURT WAS RIGHT IN UPHOLDING THE NO-CASE SUBMISSION MADE ON BEHALF OF THE 3RD RESPONDENT. (DISTILLED FROM GROUND 1-5)

J. J. USMAN on behalf of 4th respondent filed 4th Respondents brief of argument on 10th November, 2020.
He donated one sole issue for determination as follows;
“WHETHER THE TRIAL COURT WAS RIGHT WHEN IT UPHELD THE NO-CASE SUBMISSION OF THE 4TH RESPONDENT. (DISTILLED FROM GROUNDS 1, 2, 3, 4, AND 5, OF THE NOTICE AND GROUNDS APPEAL)

USMAN TATAMA on behalf of the 5th Respondent filed brief of argument on 11 November, 2020.
He formulated one issue for determination which read as follow:
“WHETHER HAVING REGARD TO ALL THE CIRCUMSTANCES, THE TRIAL, FEDERAL HIGH COURT WAS RIGHT TO HAVE HELD THAT THERE WAS NO PRIMA FACIE CASE ESTABLISHED AGAINST THE 5TH RESPONDENT? AND OR”

APPELLANT’S BRIEF OF ARGUMENT
ISSUES FOR DETERMINATION
1. Whether in the circumstances of this case, the trial Court was right in upholding the no case submission made by the 1st -5th respondents in respect of all counts without giving sufficient reasons for the Court’s decision. (Distilled from grounds 1 &2)
2. whether the trial Court was right to have held that in upholding the no case submission that evidence of PW 5 and PW 1 was limited as to whose funds were transferred and for what purpose and whether it was used by the 1st -5th respondents for their personal use. (distilled from grounds 3)
3. Whether the failure to call Mrs. Diezani Alison Madueke is fatal to the prosecution’s case to warrant the trail Court to discharge the respondents in total disregard of exhibit A tendered and admitted by the trail Court. (Distilled from grounds 4 & 5)

Legal Argument by Mukhtar Ali Ahmed Esq
ISSUE ONE
It was submitted by counsel to the appellant that, a no case submission might be properly made and upheld where there was no evidence in the alleged offence or the evidence was discredited by cross examination that it would be unreliable for a Court to safely

convict on it. ONAGORUWA vs STATE (1993) 7 NWLR (pt 303) page 49-56 ratio 6. It was also submitted that, a prima facie case was not proved beyond reasonable doubt required to secure a conviction as argued by the respondents, but that a good ground exist for proceeding in the matter. OKO OGAR ADAMA vs STATE (2018) 3 NWLR (pt 1605) page 101 ratio 8.

He submitted that from the legal position and the evidence before the trial Court, it could not be said by any stretch of imagination that a prima facie case had not been made out against the respondents to warrant some explanation from them.

It was submitted that, conspiracy to commit money laundering involved an agreement between two or more persons to commit an unlawful act or a lawful act by unlawful means with an intent to achieve the agreement. He further submitted that, conspiracy could be inferred from the fact of doing things towards a common end, where there was no direct evidence in support of the agreement between the accused persons.
ISSUE 2
Learned counsel to the appellant submitted that, there was a nexus between the criminal conduct and the offence the respondents were charged

with. He submitted that the appellant adduced sufficient material evidence before the lower Court on how the 1st & 2nd respondent received cash payments above the threshold, and how the 2nd respondent made cash payments above the threshold to the 3rd, 4th, and 5th respondents.

He submitted that in considering a no case submission, the decision should not depend much on whether the evidence was such that a reasonable tribunal would convict on it, or the credibility of the evidence.

He submitted that an accused person might be requested to make some explanations where a prima facie case had been made against him without constituting any findings of guilt even when all the elements of the offence were not shown to exist. He submitted that the decision of Court must be based on evidence adduced and applicable law as addresses of counsel cannot replace it. He urged the Court to hold that the prosecution had established a prima facie case against the respondents.
ISSUE 3
He submitted that the prosecution has adduced evidence establishing the ingredients of the offences the respondents were charged with and the appellant has not failed

considering the evidence of the witnesses. He urged the Court to discountenance the argument of the respondents as being misplaced.
1ST RESPONDENT’S BRIEF OF ARGUMENT
ISSUE FOR DETERMINATION
“Whether the trial Court was right when it held that the prosecution failed to establish a prima facie case against the 1st respondent and accordingly upheld the 1st respondents No case submission”
OBJECTION TO GROUND 6 OF THE APPELLANT’S NOTICE OF APPEAL
Learned counsel to the 1st respondent contended that ground 6 of the appellants notice of appeal ought to be and should be struck out by the Court.

He submitted that no issue for determination was distilled from the appellant’s ground 6 of its notice of appeal, he urged the Court to deem the said ground 6 abandoned and struck out. UNITY BANK PLC vs DENCLAG LTD (2012) LPELR-9729 (SC)

Legal argument on the sole issue by Mohammed Monguno Esq.
It was submitted by counsel that, the 1st respondent was charged before the trial Court for conspiracy to commit laundering contrary to Section 18 (a) of the Money Laundering (prohibition) Act 2011.

He submitted that conspiracy was an agreement between two or more persons to do or cause to be done an illegal act or a legal act by illegal means. KAYODE vs STATE (2016) LPELR-40028 SC. He further submitted that, for the prosecution to prove conspiracy, there had to be; an agreement between two or more persons to do an illegal act or a legal act by illegal means, actions taken in furtherance of the agreement and the active participation of each of the defendants in the conspiracy. Per Tsanmani JCA in OGUNBODEDE vs FRN (2018) LPELR-44883 (CA). He also submitted that to prove conspiracy to commit money laundering, the prosecution must establish by credible evidence the ingredients under Section 15 of the Money Laundering (prohibition) Act 2011 as held in KALU vs FRN (2016) 9 NWLR (pt.1516) page 23.

He submitted that none of the prosecution witnesses mentioned, implied or suggested that there was any agreement amongst the 5 respondents to commit any crime for a prima facie case of conspiracy to be conceived against the 1st respondent. He further submitted that exhibit A did not show any violation of Section 1 of the Money Laundering (prohibition) Act 2011, nor does it show that the

respondents conspired to accept cash payments over the threshold through other means other than a financial institution as Fidelity Bank is a financial institution.

He submitted that there was no legally admissible evidence before the trial Court to warrant the 1st respondent to enter his defence, as the statements purportedly made by the respondents was useless and has no evidential value because it was tendered and rejected. AGBOOLA vs STATE (2013) LPELR-20652 (SC).

He submitted that, a no-case submission would be upheld where there was; no evidence to prove an essential element of the alleged offence, or the evidence had been discredited by cross examination, or it was manifestly unreliable that no reasonable tribunal could safely convict on it. He further submitted that the conditions were not cumulative as the Court on its own volition or on application by the defense uphold a no case submission. SARAKI vs F.R.N (2018) 16 NWLR (pt.1446) page. 438

He submitted that the trial Court rightly upheld the no-case submission of the 1st respondent in line with Section 303 (3) of the Administration of Criminal Justice Act 2015, because the

prosecution has not made out a prima facie case against the 1st respondent, and doing otherwise would amount to imposing on the accused a burden of proving his innocence which would be inconsistent with the constitution presumption of innocence under Section 36(5) of the 1999 Constitution (as amended). He further submitted that the failure of the prosecution to lead credible evidence to prove the ingredients of the each of the counts the 1st respondent was charged with was fatal to their case. AJOSE vs F.R.N (2011) 6 NWLR pt. 1244 pg. 465.

He urged the Court to discountenance the arguments of the appellant and resolve the lone issue in favor of the 1st respondent.

2ND RESPONDENT’S BRIEF OF ARGUMENT
ISSUE FOR DETERMINATION
“Whether the trial Court was right when it held that the prosecution failed to establish a prima facie case against the 1st respondent and accordingly upheld the 1st respondents No case submission”

OBJECTION TO GROUND 6 OF TUE APPELLANT’S NOTICE OF APPEAL
Learned counsel to the 2nd respondent contended that ground 6 of the appellants notice of appeal ought to be and should be struck out by the Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Legal Argument on the Sole Issue by Mohammed Monguno Esq.
It was submitted by counsel that, the 2nd respondent was charged before the trial Court for conspiracy to commit laundering contrary to Section 18(a), 16(1)(d) & 16(2)(b) of the Money Laundering (prohibition) Act 2011.

He submitted that conspiracy was an agreement between two or more persons to do or cause to be done an illegal act or a legal act by illegal means. KAYODE vs STATE (2016) LPELR-40028 SC. He further submitted that, for the prosecution to prove conspiracy, there had to be an agreement between two or more persons to do an illegal act or a legal act by illegal means, actions taken in furtherance of the agreement and the active participation of each of the defendants in the conspiracy. Per Tsanmani JCA in OGUNBODEDE vs FRN (2018) LPELR-44883 (CA). He also submitted that to prove conspiracy to commit money laundering, the prosecution

must establish by credible evidence the ingredients under Section 15 of the Money Laundering (prohibition) Act 2011 as held in KALU vs FRN (2016) 9 NWLR (pt.1516) page 23.

He submitted that none of the prosecution witnesses mentioned, implied or suggested that there was any agreement amongst the 5 respondents to commit any crime for a prima facie case of conspiracy to be conceived against the 2nd respondent. He further submitted that exhibit A did not show any violation of Section 1 of the Money Laundering (prohibition) Act 2011, nor did it show that the respondents agreed to accept cash payments over the threshold through other means other than a financial institution as Fidelity Bank is a financial institution.

He submitted that, the prosecution had failed to make out a prima facie case against the 2nd respondent in support of counts 1, 2, & 6 of the charge. He submitted that, the testimony of the prosecution witnesses required substantiation through documentary evidence which was not provided and must be treated as mere assertions which cannot be regarded as credible and worthy of belief. OKUNADE vs OLAWALE (2014) 10 NWLR (pt. 1415) 273 SC.

He further submitted that the evidence was largely hearsay and thus, inadmissible which ought not to be countenanced. ALI vs STATE (2019) 14 NWLR (pt. 1692) 314 @ 316 paras E-F.

He submitted that there was no legally admissible evidence before the trial Court to warrant the 2nd respondent to enter his defense, as the statements purportedly made by the respondents was useless and has no evidential value because it was tendered and rejected. AGBOOLA vs STATE (2013) LPELR-20652 (SC).

He submitted that, a no-case submission would be upheld where there was no evidence to prove an essential element of the alleged offence, or the evidence has been discredited by cross examination, or it is manifestly unreliable that no reasonable tribunal could safely convict on it. He further submitted that the conditions were not cumulative as the Court on its own volition or on application by the defense uphold a no case submission. SARAKI vs F.R.N (2018) 16 NWLR (pt.1446) page 438

He submitted that the trial Court rightly upheld the no case submission of the 1st respondent in line with Section 303 (3) of the Administration of Criminal Justice Act 2015, because

the prosecution has not made out a prima facie case against the 1st respondent, and doing otherwise would amount to imposing on the accused a burden of proving his innocence which would be inconsistent with the constitution presumption of innocence under Section 36(5) of the 1999 Constitution (as amended). He further submitted that the failure of the prosecution to lead credible evidence to prove the ingredients of the each of the counts the 2nd respondent was charged with was fatal to their case. AJOSE vs F.R.N (2011) 6 NWLR (pt. 1244) page.465.
He urged the Court to dismiss the appeal for lacking in merit and uphold the ruling of the trial Court.

3RD RESPONDENT’S BRIEF OF ARGUMENT
ISSUE FOR DETERMINATION
“Whether or not having regard to the evidence adduced by the appellant the lower Court was right in upholding the no case submission made on behalf of the 5th respondent. (Distilled from grounds 1-5)

Legal argument by Saidu Mohammed Also Esq.
It is submitted by learned counsel to the 3rd respondent that, the burden of prove in a criminal matters is on the prosecution and requires a standard beyond reasonable doubt. Section 135(1) & (2), 139 of the Evidence Act 2011.

He submitted that, what constitutes a prima facie case is not a proof whether the accused is guilty or not, but that there is a good ground to call the accused to make his defense. He submitted that the good ground should be determined on strict context of the charge and the evidence adduced by the appellant. ADEYEMI vs STATE (1991) 6 NWLR (pt.95) page 1 @ 35.

He submitted that, a no case submission can be made and upheld where there was no legally admissible evidence to prove an essential ingredient of the offence, or the evidence has been so discredited by cross examination and is so manifestly unreliable for a tribunal to safely convict on it. He further submitted that the law requires either of the conditions to exist for a no case submission to be upheld, and the credibility of the witness is not in issue in a no case submission. F.R.N vs SARAKI (2017) LPELR- pg.35-36 paras D-E.

He submitted that to successfully prove conspiracy, the prosecution must prove beyond reasonable doubt that; there was an agreement between the accused persons to do an illegal act or a legal act by illegal means,

that the accused persons carried on the act in furtherance of the agreement, and that each of the accused persons actively participated in the commission of the illegal act. OGUNBODEDE vs F.R.N LPELR-44883 (CA).

He submitted that none of the prosecution’s witnesses established by evidence the ingredients of conspiracy against the 3rd respondent to sustain count 1 & 3. He submitted that PW4 and PW 3 have not testified before the lower Court as postulated by the appellant, and the firm position of the law is that parties and the appellate Court are bound by the record of proceedings and cannot depart from it on the ipsi dixit of counsel or speculation. SOMMER vs F.H.A (1992) 1 NWLR (pt.219) @ 548.

He submitted that the prosecutions investigative officers failed to call Diezani Alison Madueke from whom the alleged money emanated from, or any of those persons whose names appeared on the template for investigation. He further submitted that, though the prosecution is at liberty to call any witness it so wishes, the failure to call a vital witness like Diezani was fatal to the prosecution and raises the presumption that she would have led evidence

unfavorable to the prosecution. IBRAHIM vs STATE (2018) LPELR-46391(CA) page 21-22 paras C-E. He submitted that the witnesses called by the prosecution were witnesses of interest who confirmed to the Court that in 2015 bank operations were practically impossible due to insurgency.

He submitted that the prosecution had not made out a prima facie case against the 3rd respondent to warrant him to enter his defense and the lower Court was right to uphold the no case submission. He urged the Court to dismiss the appeal and uphold the decision of the lower Court and discharge the 3rd respondent.

4TH RESPONDENT’S BRIEF OF ARGUMENT
ISSUE FOR DETERMINATION
“Whether or not having regard to the evidence adduced by the appellant the lower Court was right in upholding the no case submission made on behalf of the 5th respondent. (Distilled from grounds 1-5)

Legal argument by J.J Usman Esq.
It is submitted by counsel to the 4th respondent that, presumption of innocence was a constitutional right in favor of an accused person in a criminal matter guaranteed under Section 36(5) of the 1999 Constitution (as amended). He submitted that the burden of

prove rested on the prosecution and never shifted, and the required standard was beyond reasonable doubt failure of which rendered the benefit of doubt in favor of the accused person. STATE vs ISIAKA (2013) LPELR-20521 (SC) page 6 para A-E.

He submitted that there was no iota of evidence from the prosecution witnesses mentioning the name of the 4th respondent as regards both counts of conspiracy to commit money laundering and receiving cash payments to warrant him enter his defense. He submitted that the evidence of PW 1 was speculative and Courts could only act on concrete and believable evidence. He further submitted that the evidence of PW 2 is an admission against interest, and where the evidence of a witness is at variance with the party that called him, the case is totally destroyed. OJUKWU vs OBASANJO (2004) 1 EPR 626 @ 674-675. He submitted that the failure to tender the memo instructing PW5 to commence investigation amounted to withholding evidence contrary to Section 167(1) of the Evidence Act 2011.

He submitted that to sustain a charge of conspiracy, the prosecution must establish a common intention of committing an unlawful act, and the

agreement between the parties was fundamental. ATUMA vs STATE (2016) 10 WNLR (pt.989) @ 452. He submitted that the prosecution failed to establish the ingredients of the offence to warrant the 4th respondent to enter his defense. He further submitted that the evidence of the witnesses and the exhibits tendered had no probative value as it had been tested and proved to be worthless. ASUMOGHA vs STATE (2015) LPELR-24534 (CA).

He submitted that a no case submission meant the prosecution had not established a prima facie case against the accused. He submitted that a no case submission would be upheld where there was no evidence, or the evidence adduced by the prosecution is discredited by cross examination that it was unreliable for a reasonable tribunal to safely convict on it. But where the conditions existed, a prima facie case had been made against the accused to warrant him enter his defense. He submitted that the conditions were to be read disjunctively. UBANATU vs C.O.P (2000) 2 NWLR (pt 643) 115 (SC). He further submitted that in considering a no case submission, a Judge was expected to examine the totality of the evidence of the prosecution as a

single and not examine bits of it. ONAGORUWA vs STATE (1993) 7 NWLR (pt303) @ 49. He submitted that the trial Court rightly upheld the no case submission of the 4th respondent in view of the constitutional presumption of innocence as the prosecution failed to establish by evidence the essential ingredients of the offence.

He submitted that the failure of the prosecution to appeal the ruling of the lower Court rejecting the tendered statements purportedly made by the 4th respondent, is binding and conclusive between the parties. DANIEL vs F.R.N (2015) LPELR-24733 (SC) 32 para A-C. He further submitted that the failure of the prosecution to call a vital witness was fatal to their case. OPAYEMI vs STATE (1985) 2 NWLR (pt.101) @108-109. He urged the Court to uphold the decision of the lower Court which is tantamount to a discharge, and dismiss the appeal as the dictates of justice demands.

5TH RESPONDENT’S BRIEF OF ARGUMENT
ISSUES FOR DETERMINATION
Whether the trial Court was right when it held that there was no prima facie case against the 5th respondent, or whether the trial Court was right to have upheld the 5th respondent’s no case submission and discharged him.

Legal argument by Usman Tatama Esq.
It was submitted that counts 1 & 7 relating to the 5th respondent were the offence of conspiracy to commit money laundering and receiving cash payments above the threshold not through a financial institution. He submitted that burden of proof in criminal cases rested on the prosecution and never shifted and the standard of prove was beyond reasonable doubt. STATE vs OGUBUNJO (2001) 2 MJSC 145 @ 185.

He submitted that to prove counts 1 & 7, the prosecution must establish that the 5th respondent conspired with the 1st to 4th respondent to commit money laundering, and that the 5th respondent received cash payment above the threshold not through a financial institution.

He submitted that conspiracy was an agreement between two or more persons to do an unlawful act or a lawful act by unlawful means, and the prosecution must establish the fundamental element of agreement between the accused persons which is best obtained from one of the conspirators or from inference. NJOVENS vs STATE (1973) NWLR 76 @ 95. He submitted that none of the prosecution witnesses mentioned

that there was any meeting between the 5th respondent and other respondents to establish a prima facie case of conspiracy against the 5th respondent. He submitted that the prosecution did not lead any evidence or called any of the conspirators to testify so as to establish the agreement between the 5th respondent and the 1st to 4th respondent to commit the offence. He further submitted that there was no admissible evidence that would warrant any inference of the commission of conspiracy as the evidence of the witnesses was hearsay and not admissible. He urged the Court to so hold and uphold the no case submission of the 5th respondent.

He submitted that none of the prosecution witnesses testified positively to the fact that the 5th respondent handled cash above the threshold in violation of the Money Laundering (prohibition) Act. He further submitted that the evidence of PW 1 and PW5 were largely hearsay and were inadmissible in all their entirety. ZUBAIRU vs STATE (2015) ALL FWLR (pt794) 178 a) 190-191.

In response to the arguments of the appellant, learned counsel submitted that the ruling on the no case submission was not based on the

credibility of the witnesses who testified, but solely on the fact that a prima facie case has not been made out by the appellant. He further submitted that the decision of the Court was not based on the addresses of counsel but solely on the evidence of the 6 witnesses who testified for the prosecution.

He urged the Court to hold that the appeal lacked merit and uphold the ruling of the trial Court discharging the 5th respondent.

RESOLUTION OF ISSUE
I have carefully considered the diverse issue formulated by counsel. I am of the respectful view that issue No 1 as formulated by learned appellant counsel is wide and apt enough for the just determination of this appeal.
I therefore adopt it as the sole issue

SOLE ISSUE
WHETHER IN THE CIRCUMSTANCES OF THIS CASE, THE TRIAL COURT WAS RIGHT IN UPHOLDING NO-CASE SUBMISSION MADE BY THE 1ST, 2ND, 3RD, 4TH AND 5TH RESPONDENTS IN RESPECT OF ALL COUNTS WITHOUT GIVING SUFFICIENT REASONS FOR THE COURTS DECISION.
This appeal seeks to challenge the ruling of the lower Court upholding the no-case submissions made on behalf of each of the 1st – 5th respondents in respect of all counts.

In a no-case submission the Court is being urged to terminate the trial because the case of the prosecution against the accused has not shown ex-facie any reason or ground why it should continue as a result of failure of the prosecution to prove an important element or ingredient of the offence charged or because the case against the accused is worthless, completely undeserving of being relied upon as a result of cross-examination.
The stage of a no-case submission is not a stage to watch and assess demeanor of the prosecution witnesses. That would come up if either the accused rests his defence on that of the prosecution or after the final defence after hearing the accused and his witnesses. If in the prosecution’s case there are things which if believed should the accused rest his case on prosecution’s case, the accused would be found guilty then a no case submission should fail.
The law is settled on what a no-case submission involves.
In UZOAGBA & ANOR VS COP (2012) LPELR – 15525(SC) RHODES – VIVOUR JSC. On page 27 – 28 & explained it thus:
“A no-case submission from the point of view of the defence is that the

prosecution has not made out a case for the accused person to answer. In considering whether a case has been made out by the prosecution the trial Judge should not bother himself with whether he believes the evidence already led or concern himself with the vendibility of the witnesses.”
What the Court should do is to examine the charge and see if evidence led by the prosecution establishes a prima facie case. That is to say whether the evidence led seems good or like the accused person, no matter law slight with the commission of the offence.
NWEZE JSC. In Alex vs FRN (2018) 7NWLR PART (1618) P. 228 explains it in another way as follows:-
“By way of preliminary remarks, I note that in considering a no-case submission, the Court’s duty is finite; it is only determine whether the prosecution has made out a prima facie case that is whether there is admissible evidence linking the defendant with the offence with which he is charged. Hence it neither involves the evaluation of evidence nor the consideration of the credibility of the witnesses”

I shall resolve this sole issue in the light of the above.
The charge against the accused persons has been set out earlier in this judgment.

Count one is on conspiracy to commit Money Laundering contrary to and punishable under Section 18(a) of the Money Laundering (prohibition) Act 2011 (as amended).
It draws its strength from other provisions of the law in that it seeks to punish any person who conspires with aids, abets or counsels any other person to commit an offence under the Money Laundering (prohibition) Act 2011 (as amended)
My Lords under Section 16(1)(b) of the said Act it is an offence to make or accept cash payments exceeding the amount authorized under the Act.
Section 1 of the Money Laundering (Prohibition) Act 2011 states thus
“No person or body corporate shall except in a transaction through a financial institution make or accept cash payment of a sum exceeding.
a. N5,000,000.00 (Five Million) or its equivalent in the case of an individual or
b. N10,000,000.00 (Ten Million) or its equivalent in the case of a body corporate”

The appellant in proof of its case called six witnesses to the effect that on 27th March, 2015, cash payment of various sums of Money each exceeding the sum of

5million naira were paid to each of the accused. According to PW 1 Dauda Umar an operative of EFCC (Maiduguri Zonal Office attached to AFF) each of the accused after they were interviewed confirmed the receipt of such sums of money.

The confessional statements obtained from each of the accused charge were rejected by the lower Court, but the oral evidence implicating each of the accused each remains for the lower Court to either believe or believe after evaluation of the evidence adduced before it. These payments were made pursuant to a decision allegedly made by the party of the accused persons.

In the face of the above there is sufficient ground in my view to proceed to call on each of the accused person to defend himself. The trial Court should not at this stage believe or disbelieve the evidence before it.

I therefore resolve this sole issue in favour of the appellant. This appeal has merit it is hereby allowed. Charge No. FHC/DM/CR/25/2018 FRN VS DR ABDU BULAMA & 4 OTHERS is ordered to be remitted back to the lower Court to be reassigned to another Federal High Court Judge other than Hon. Justice Isa H. Dashen to be heard de novo.

JUMMAI HANNATU SANKEY, J.C.A.: I have read before now the Judgment of my learned brother, Tunde O. Awotoye, JCA I agree with his reasoning and conclusion that the Appeal is meritorious.

When a no case submission is made by the defence after the prosecution has closed its case, all that is required of the trial Court is to state whether or not the prosecution has made out a prima facie case requiring an explanation from the accused person(s). At the stage of ruling on the no-case submission, the trial Court is not expected to formally evaluate the evidence, ascribe probative value thereto and make specific findings of fact to determine if the evidence is sufficient to justify a conviction.
It must be understood that the purport of a no case submission is that the Court is not called upon at that stage to express any opinion on the evidence before it. At that stage, the credibility of the prosecution witnesses shall not be considered as the defence is yet to present its witnesses. Where the trial Court dismisses a no case submission, its ruling should be brief so that the merits of the substantive case will not

be jeopardized and/or prejudiced. See Adama V State (2018) 3 NWLR (Pt. 1605) 94; Fagoruwa V State (2014) 10 NSCC 309; Agbo V State (2013) 4 SCNJ 452.
In the case of Chianugo V State (2001) LPELR-7006(CA) 2-4, Oguntade, JCA, (as he then was), held –
“In Ajiboye V State (1995) 8 NWLR (Pt. 414) 498, the Supreme Court considered the nature of a no case submission and when it can be made. The Supreme Court per Kutigi, JSC at pages 414-415 observed thus:
“It is also settled by a chain of authorities that a submission of no-case to answer may be properly made and upheld in the following circumstances as correctly stated by the lower Courts:
1. When there has been no evidence to prove an essential element in the alleged offence;
2. 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 could safely convict on it…”
What then is a prima facie case? … It only means that there is a ground for proceeding. … But a prima facie case is not the same thing as proof which comes later when the Court 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 person…”

In the instant case, given the character of oral evidence offered against the Respondents, for instance, the evidence of the EFCC Operative, PW 1, stating that the Respondents confirmed the receipt of such sums of money as alleged in the charge, there was sufficient basis for a prima facie case against the Respondents upon which to require them to defend themselves from the charge, notwithstanding that their confessional statements were rejected in evidence. In other words, there is inferential evidence against the Respondents which should not be brushed aside, Consequently, it was not for the trial Court to assess the credibility of the witnesses at this stage of the proceedings.

Consequently, for this reason and for the more comprehensive reasons in the lead Judgment, I also allow the Appeal. I abide by the consequential orders made therein.

EBIOWEI TOBI, J.C.A.: The issue in this appeal is whether the lower Court was right in upholding the no case submission. I read in draft the lead judgment just delivered by my learned brother, TUNDE O. AWOTOYE, JCA and I entirely agree with my brother that the lower Court was wrong in upholding the no case submission in the light of the evidence before it. The law as to when a no case submission can be upheld is trite and my lord has stated the position clearly. I wish to add a case or two of mine. In EKWUNUGO V. FEDERAL REPUBLIC OF NIGERIA (2008) 7 SC 196 the Supreme Court held:
“The position of the law is that a submission that there is no case to answer by an accused person means that there is no evidence on which even if the Courts believe, it could not convict. In other words, certain essential element of the offence for which the accuse stands charged was not proved by the persecution. No evidence was led to prove such essential element.”
In OKAFOR V. THE STATE (2016) LPELR -26084 (SC) it was held:
“It also must be pointed out that at a stage a no case submission is made, all that the trial Court is supposed to consider is not whether the evidence so far adduced by the prosecution against the accused is sufficient

to justify conviction but simply whether the prosecution has made out prima facie case requiring some explanation from the accused person as regard his conduct or otherwise”
Similarly, in TONGO V. C.O.P. (2007) NWLR (PT.1049) 525 at 544, the Supreme Court held:
“The essence of a submission 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 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 or open his defence or enter his defence but whether the prosecution has made out a prima facie case requiring, at least some explanation from the accused person as regard his conduct or otherwise”.
In Emedo & Ors vs State (2002) 15 NWLR (pt 789) the apex Court held thus:
“A submission of no case to answer may properly be upheld
(a) when there has been no evidence to prove an essential element in the alleged offence and
(b) 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 could safely convict on it. The decision to uphold or reject the submission should not depend upon whether the adjudicating tribunal would at that stage convict or acquit, but upon whether the evidence is such that a reasonable tribunal might convict. Although those considerations were expressed to be for the guidance of Judges during criminal trials it is clear that they are of general applicability. See Ibeziako v. C.O.P. (1963) 1 SCNLR 99, (1963) 1 All NLR 61 and Stonehey v. Coleman (1974) Crim. L.R. 254 D.C.”

The evidence before the Court has shown a prima facie case which requires some explanation from the Appellant. There is evidence that each of the Appellant received payment above N5,000,000.00 (five million naira). This admission requires that the Appellant explain the purpose of the payment.

For this reason and the fuller reason stated in the lead judgment I also hold that this appeal succeeds and it is allowed. I also abide by the consequential order.

Appearances:

A. Ahmed, Esq. For Appellant(s)

Mohammed Monguno with him, K. K Jimoh (Miss) – for 1st and 2nd Respondents
S. Mohammed with him, A. G Atom – for 3rd Respondent
J. J. Usman with him, Hassan & Benjamin Sati -for 4th Respondent
D Bitrus – for 5th Respondent. For Respondent(s)

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