HARDROCK CONSTRUCTION ENGINEERING CO. & ANOR v. THE STATE OF LAGOS & ORS
(2018)LCN/12150(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of November, 2018
CA/L/410C/2018
RATIO
APPEAL: INTERFERENCE OF THE APPELLATE COURT
“There is nothing perverse or erroneous in the totality of the findings, conclusions and decision of the Court below in this regard. In law an appellate Court has no business interfering with the correct finding of a trial Court even where the reason adduced and relied upon by the trial Court to arrive at the correct findings turns out to be wrong. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC., had pronounced with finality on this vexed issue, thus: ‘An appellate court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the court to come to a wrong conclusion that the appellate court will interfere…’ See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See Newswatch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144. The term ‘fair hearing’ is in most cases synonymous with fair trial and natural justice, an issue which clearly is at the threshold of our legal system and thus once there has been a denial of fair hearing the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from the conduct of the Court in the hearing of a case or in the judgment or ruling of the Court. However, the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. See Otapo V. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572. See also A. U. Amadi V. Thomas Aplin & Co Ltd (1972) All NLR 413; Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
JUSTICES
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. HARDROCK CONSTRUCTION ENGINEERING CO.
2. AKINBOLA FATIREGUN Appellant(s)
AND
1. THE STATE OF LAGOS
2. THE REGISTERED TRUSTEES OF SYNAGOGUE CHURCH OF ALL NATIONS
3. JADNY TRUST LTD
4. OLADELE OGUNDEJI Respondent(s)
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the Ruling of the High Court of Lagos State, Ikeja Judicial Division; Coram: L.B. Lawal – Akapo J., in Charge No. ID/1759C/2015: The State of Lagos V. The Registered Trustees of Synagogue Church of All Nations & Ors., delivered on 8/3/2018, in which the Appellant?s no case submission was refused and dismissed.
The Appellants, the 3rd & 5th Defendants at the Court below, was dissatisfied with the said ruling of the Court below, had filed their notice of appeal on 21/3/2018 on three grounds. See pages 571 – 573 of the record of appeal. The records of appeal were duly transmitted to this Court. The Appellant’s brief was settled by Mrs. Titilola Akinlawon SAN and filed on 16//4/2018. The 1st Respondent’s brief was settled by Mrs. T. K. Shita – Bey, learned DPP, Ministry of Justice, Lagos State and filed on 13/9/2018 but was deemed properly filed on 8/11/2018. The 2nd – 4th Respondents did not file any brief. The Appellants’ reply brief was settled by Mrs. Titilola Akinlawon SAN.
At the hearing of this appeal on 8/11/2018, Mrs. Titilola Akinlawon SAN, learned Senior Advocate for the Appellants, appearing with Mrs. Shade Adebayo, James Aigbe Esq., Remi Adebayo Esq., and Ayomide Ogunsanwo Esq., adopted the Appellant’s brief as their arguments in support of the appeal and urged the Court to allow the appeal, set aside the ruling of the Court below and discharge the Appellants. On their part, Mrs. T. K. Shita – Bey, learned DPP, Ministry of Lagos Justice, Lagos State for the 1st Respondent, appearing with Y. D. Oshoala Esq., Director, A. Haroun Esq., Assistant Director, Y. A. Sule Esq., PSC., and Mrs. Bola Akinsete, PSC, adopted the 1st Respondent’s brief as their arguments in opposition to the appeal and urged the Court to dismiss the appeal and affirm the ruling of the Court below. H. O. Afolabi SAN learned Senior Advocate for the 2nd Respondent, appearing with O. A. Diyan Esq., A. Ayandipo Esq., and O. Arasi Esq., having not filed any brief, did not adopt any. Chief E. L. Akpofure SAN, learned Senior Advocate for the 3rd Respondent, appearing with Chief Edwin Okonkwo, John Okoriko Esq., and Ayodeji Olabinwonnu Esq. Olalekan Ojo SAN, learned Senior Advocate for the 4th Respondent, appearing with R.M. Bature Esq., and Adebayo Adedokun Esq., having not filed any brief, did not adopt any.
By an Information filed on 11/9/2015, the Appellants were charged along with the 2nd – 4th Respondents in Count 1 with failure to obtain approved building plan for the construction of the building which collapsed on 12/9/2014 contrary to Section 75 of Urban and Regional Planning and Development Law, No. 31, Laws of Lagos State 2010 . The Appellant and 3rd – 5th Respondents were each and jointly charged in Counts 2 – 111 with involuntary manslaughter of 110 named persons on 12/9/2014 in the collapsed building of the SCOAN at Ikotun/Egbe, Lagos State contrary to Section 222 of Criminal Code, Law No. 11, Laws of Lagos State 2011. See pages 9 – 49 in Vol. I of the records of appeal.
BRIEF STATETMENT OF FACTS
According to the case as put forward by the 1st Respondent as Prosecution before the Court below through its witnesses, PW1, Engr. (Dr.) Victor Oyenuga; PW2, Dr. Olutoyin Ayinde; PW3, Mr. Adebayo Musiliu; PW4, Mr. Adesola Babatunde Basir; PW5, Prof. John Oladapo Obafunwa; PW6, Rafiq Olubukola Arogunjo; PW7, Engr. Fadayomi Oreoluwa and PW8, Mr. Gubbi Linus and the tendered several documents numbering 18 but admitted in evidence as Exhibits P1 – P14, on 12/9/2014, a 7 – storey building of the 2nd Respondent situate at Ikotun/Egbe, Lagos suddenly collapsed and a good number of people, numbering about 116 person lost their lives and several others numbering about 131 persons were injured. The Lagos State Government immediately set up a Coroner Inquest to look into the immediate and remote causes of the collapse.
The Coroner later delivered his verdict and recommended criminal trial against the Appellant and others for the construction of the collapsed building. Subsequently, on 30/11/2015, the Appellant, being one of the firms allegedly involved in the construction of the collapsed building as well as three others was arraigned before the Court below on a 111 Count Charge. They each pleaded not guilty. The Appellant was charged along with the 2nd – 5th Respondents in Count 1, alleging failure to obtain approved building plan for the construction of the building which collapsed on 12/9/2014 contrary to Section 75 of Urban and Regional Planning and Development Law, No. 31, Laws of Lagos State 2010. However, in Counts 2 – 111 the Appellant was jointly charged with the 3rd – 5th Respondents with involuntary manslaughter of 110 named persons on 12/9/2014 in the collapsed building of the SCOAN at Ikotun/Egbe, Lagos State contrary to Section 222 of Criminal Code, Law No. 11, Laws of Lagos State 2011. At the close of the case for the 1st Respondent on 13/7/2017, the Court below adjourned the case to 5/10/2017 for defense.
However, the Appellants made an application by way of no case submission contending that they have no case to answer. In other words, that the 1st Respondent failed to make out any prima facie case against the Appellants on all the 111 Counts to warrant the Appellants to enter upon their defense. The parties filed and exchanged written addresses, which were duly adopted on 13/7/2017 and on 8/3/2018, the Court below in its ruling overruled the Appellants’ no case admission and called upon it to enter upon its defense, hence the appeal to this Court by the Appellants. See pages 222 – 229, 231 – 245, 246 – 248, 250 – 253, 255 – 259, 261 – 264, 266 – 282 and 283 – 293 in Vol. I of the record of appeal. See also 476 – 483 and 484 – 570 in Vol. II of the record of appeal.
ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the four grounds of appeal, namely:
1.Whether the Court below was wrong to have dismissed the Appellants’ no case submission, when there is no scintilla of evidence linking them to any of the Counts in the charge? (Distilled from ground 1)
2.Whether the essential ingredients relating to Counts 2 to 111 were in evidence such as would necessitate the Appellants to defend same? (Distilled from ground 2)
3. Whether the Court below denied the Appellants a fair hearing by failing to consider all the submissions made in support of the no case? (Distilled from ground 3)
In the 1st Respondent’s brief, two issues were distilled as arising for determination in this appeal, namely:
1.Whether upon a calm and dispassionate view and considering the overwhelming nature and character of the prosecutorial evidence, the Court below was right to dismiss the Appellants’ submission of a no case?
2.If the answer to the above issue is yes, then whether a prima-facie case has not been established against the Appellants to make some explanations
I have given due consideration to the facts and circumstances of this case as can be seen in the volumes of the records of appeal as touching on the offences in Counts 1 with which the Appellants were charged and the evidence, both oral and documentary, as led by the 1st Respondent at the trial. I have also calmly reviewed the submissions of learned counsel in their respective briefs in the light of the decision of the Court below dismissing the Appellants? no case submission and thereby calling upon them to enter upon their defence to the charges against them, the 1st Respondent having, in the findings of the Court below, made out a prima facie case against the Appellants.
Upon an anxious consideration of all the above, I am of the view that the only apt issue, for determination in this appeal, considering the stage of the proceedings before the Court below and the nature of the application by the Appellants leading to this appeal, is issue one as distilled in the Appellants’ brief, a consideration of which, in my view, would involve the consideration of issues two and three as distilled in the Appellants’ brief as well as issues one and two in the 1st Respondent’s brief. Consequently, issue one in the Appellants’ brief is hereby adopted and set down as the sole issue for determination in this appeal.
SOLE ISSUE
Whether the Court below was wrong to have dismissed the Appellants’ no case submission, when there is no scintilla of evidence linking them to any of the Counts in the charge?
APPELLANT’S COUNSEL SUBMISSIONS
On issue one learned Senior Advocate for the Appellant had submitted that in the totality of the evidence adduced by PW1 – PW8 and Exhibits P1 – P14, no reference was made to the Appellants at all in that at no point did either of the Appellants’ names come up and contended that there was clearly no specific evidence to back the finding of the Court below that the Appellants have a case to answer because they were involved directly or indirectly in the construction of the SCOAN building and urged the Court to hold that since in law the Appellants are constitutionally presumed innocent until proved guilty, in the absence of any scintilla of evidence against the Appellants linking them to any of the 111 Counts, the Court below was in grave error to have dismissed their no case submission by dint of an unsubstantiated, general and sweeping finding and to allow the appeal, set aside the preverse finding of the Court below and uphold the no case submission of the Appellant and discharge them of all on the 111 Counts. Learned Senior Advocate referred to Section 36 (5) of the Constitution of Nigeria 1999 (as amended) and relied on Ikomi V. The State (1986) 3 NWLR (Pt.28) 340 @ p. 357; Onagoruwa V. The State 1993 NWLR (Pt. 303) 82.
It was further submitted that in as much as there is no reference to the Appellants at all in the entire proceedings and no evidence linking them to any of the 111 Counts in the Charge, it is only proper in accordance with extant legal principles that they ought to have been discharged on their no case submission and contended that in the circumstances calling on them to enter a defence to the Charge would be tantamount to an abuse of process and an inquisitorial proceeding and urged the Court to hold that the Court below was wrong when it failed to uphold their no case submission and in not discharging the Appellants on the merit and urged the Court to allow the appeal and discharge the Appellants.
On her issue two, learned Senior Advocate for the Appellants had submitted that even assuming but without conceding that there was any evidence linking the Appellants to Counts 2 – 111, the essential ingredients relating to those Counts were not in evidence and contended that in law a no case submission will be upheld where there has been no evidence to prove an essential element of the offence Charged, 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 tribunal could safely convict on it and urged the Court to hold that the failure to prove an essential element of the offences Charged includes a failure to establish a pre -requisite for charging an offence, including the trite position of the law that no person should be tried for an offence on account of any action, which did not constitute an offence at the time it happened and to discharge the Appellants.
Learned Senior Advocate referred to Section 36 (8) of the Constitution of Nigeria 1999 (as amended) and relied on Ajidagba V. IGP (1958) 1 NSCC 20; Mohammed V. The State (2007) 7 NWLR (Pt. 1052) 152; Okafor V. The State (2016) 4 NWLR (Pt. 1502) 248.
It was further submitted that it was clear that from the evidence of the Prosecution witnesses the essential elements of the offence of manslaughter, though improperly charged, were not made out in the absence of the calculation and codes relied on by the witness, coupled with lack of evidence of who are the persons alleged to have died and contended that the insufficient evidence put forward were thoroughly discredited under cross – examination and urged the Court to hold that an unsigned document is worthless and to allow the appeal there being no admissible evidence in proof of the essential elements of the offences charged. Learned Senior Advocate relied on Zubairu V. State (2015) 16 NWLR (Pt. 1486) 504; Omega Bank (Nig) Plc V. O.B.C Limited (2005) 8 NWLR (Pt.928) 547; State V. Okoye (2007) 16 NWLR (Pt. 108) 607; Odido V. State (1995) 1 NWLR (PT. 369) 88;
On her issue three, learned Senior Advocate for the Appellants had submitted that in law where the Court fails to consider all the submissions made by parties before reaching a decision it amounts to a breach of fair hearing and contended that it is clear from the record of Proceedings that several issues were raised by the Appellants in their no case Submission, but the Court below failed to consider and make pronouncement on them in his ruling and urged the Court to hold that the failure to do so amounted to a breach of the Appellants’ right to fair hearing and thereby rendered the ruling of the Court below a nullity and thus liable to be set aside. Learned Senior Advocate relied on Anambra State Government & Anor. V. Anambra State House of Assembly (2013) 3 NWLR (Pt.1341) 236; Mokeme V. Okonkwo (2012) LPELR – 9799 (CA); Ovunwo V. Woko (2011) 17 NWLR (Pt. 1277) 522;
1ST RESPONDENT’S COUNSEL SUBMISSIONS
On her issues one and two, learned DPP for the 1st Respondent had submitted that in considering a no case submission all that a trial Court would consider is whether there has been throughout the trial no legally admissible evidence linking the Defendants with the commission of the offence charged as an essential element or ingredient of the offence has not been proved or that the evidence adduced by the prosecution has been so discredited by cross-examination that no reasonable Court can safely convict on it and contended that at that stage a trial Court is not expected to express an opinion on the evidence adduced or make a finding on the evidence placed before it so far, rather it is only called upon to dispassionately consider the submission as an unbiased umpire and to prima-facie find whether on the evidence adduced there is admissible evidence linking the defendant with the offence with which he is charged.
At this stage a Court should not concern itself with the credibility of the witnesses or weight of their evidence even if they are accomplices. Learned DPP referred to Section 239 of the ACJL 2011 and relied on Ubanatu V. COP (2000) 2 NWLR (Pt. 643) 141; Aituma V. State (2006) 10 NWLR (Pt. 989) 452; Abru V. State (2011) 17 NWLR (Pt. 1275) 1; Igabele V. State (2004) 15 NWLR (Pt. 896) pg. 314; Emedo V. State (2002) 15 NWLR (Pt. 789) 196; Aituma V. State (2007) 5 NWLR (Pt. 1028) 466; Suleiman V. State (2009) 15 NWLR (Pt. 1164) 258; Ibeziako V. COP (1963) 1 SCNLR P. 99; Suberu V. State (2010) 1 NWLR (Pt. 1176) 494; Ikomi V. State (1986) 3 NWLR (Pt. 28) page 240; Chianugo V. State (2002) 2 NWLR (Pt. 750)225; Tongo V. COP (2007) 12 NWLR (Pt. 1049) 525, Shatta V. FRN (2009) 10 NWLR (Pt. 1149)403; FRN V. Martins (2012) 14 NWLR (Pt. 1320)V287.
It was further submitted that the 1st Appellant is a construction firm belonging to the 2nd Appellant and there was evidence that the Appellants were the consultants engaged by the 2nd Respondent to carry out construction work on the 7 storey building which collapsed and caused the death of about 116 persons and that the pieces of evidence led through the Prosecution witnesses clearly established prima facie case against the Appellant as found by the Court below and contended that once the isssue of prima faie case was resolved by the Court below all other issues raised being extraneous to the determination whether or not a Defendant has a case to answer and whether or not the Court below was right when it overruled the Appellant’s no case submission and called upon it to enter upon its defense to the charges against it are not matters for consideration at the stage of a no case submission when the Court is merely concerned with the prosecutorial evidence alone, whether it is sufficient to require an answer from the defense and urged the Court to overrule all the extraneous submission of the Appellant’s counsel going to no issue in this appeal and to determine the real issue involved in this appeal which is whether or not the Prosecution made out a prima facie case against the Appellant on the Counts 1 – 111.
It was also submitted that in law the parameters for a no – case submission are very narrow in that at that stage the Court is concerned with only the prosecutorial evidence alone as to whether or not it is sufficient to require an answer from the defense and contended that a consideration of and decision on a no – case submission does not include ascribing probative value to the prosecutorial evidence and urged the Court to hold that the Court below was right when upon an appraisal of the evidence it held that the 1st Respondent had led sufficient evidence and disclosed a prima facie case against the Appellant on Count one for which it ought to enter upon its defense. Learned DPP referred to Section 239 of the ACJL 2011.
It was also further submitted that in a no – case submission, the Court is not determining the guilt or innocence of the Appellants in this case in that the trial of the case has not yet been concluded for the issue of proof beyond reasonable doubt or the innocence of the Defendants to be determined and urged the Court to hold that the Court below rightly approached the issue of no case in the proper manner allowed by law and came to the correct decision that the Appellants has a case to answer and to dismiss the appeal and affirm the ruling of the Court below. Learned DPP referred to Section 239 of ACJL 2011 and relied on FRN V. Martins (Supra); Abru V. State (Supra); Suberu V. State (Supra); Aituma V. State (Supra); Igabele V. State (Supra); Emedo V. State (Supra); Suleiman V. State (Supra); Ubanatu V. COP (Supra), Ibeziako V. COP (Supra); State v. Ajuluchukwu (Supra); Ikomi V. State (1986) 3 NWLR (Pt. 28) 240; Chianugo V. State (2002) 2 NWLR (Pt. 750) 225; Tongo V. COP (2007) 12 NWLR (Pt. 1049) 525; Shatta V. FRN (2009) 10 NWLR (Pt. 1149) 403; FRN V. Martins (2012) 14 NWLR (Pt. 1320) 287; Ohuka V. The State (No. 2) (1988) 4 NWLR (Pt. 86) 36.
It was further submitted that a look at the evidence led by the 1st Respondent through PW1 – PW8 as was done by the Court below reveal that there were sufficient evidence corroborated by other pieces of evidence from these witnesses linking the Appellants directly to the offence charged in Count one as found rightly by the Court below and contended that since in law at the stage of a no case submission, the issue of conviction was not up for consideration, there was not duty on the Court below to ascribe probative value to the prosecutorial evidence as submitted by the Appellant and urged the Court to hold that on the totality of the evidence led by the Prosecution the Appellant as rightly found by the Court below has a case to answer on Count one and should be call upon to enter into its defense if it so desire and give some explanations as required of it by law.
APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In her reply learned Senior Advocate for the Appellants had submitted that there was no evidence before the Court below that the 1st Appellant is a construction firm belonging to the 2nd Appellant and that the Appellants were the consultants engaged by the 2nd Respondent to carry out construction work on the 7 storey building which collapsed on the 12/9/2014 as submitted by the 1st Respondent’s counsel and contended that at no point in the evidence of any of the eight Prosecution witnesses or in any of the documents tendered can such facts be found or even inferred and urged the Court to hold that the importation of the facts which were not given in evidence by the 1st Respondent was untenable and a gross misrepresentation since at the stage of a no case submission all that the Court would consider was the evidence adduced and not the information or proof of evidence, since in law proof of evidence, is not evidence at the trial and the trial Court was therefore precluded from looking into the proof of evidence but should have been concerned with only the evidence actually adduced at the trial. Learned Senior Advocate relied on Godwin Pius V. The State (2012) LPELR – 9304 (CA); Ibekwe V. FRN (2004) All FWLR (Pt. 213) 1780; Bayo Dada V. FRN (2014) LPELR – 24255 (CA).
RESOLUTION OF SOLE ISSUE
My lords, a consideration of the sole issue as to the constituent elements of the offences with which the Appellant was charged vis a vis the evidence led in proof thereof by the 1st Respondent in the light of the Appellants’ application for no case submission would involve the interpretation of the provisions of Section 75(1) of the Urban and Regional Planning and Development Law; Section 222 of the Criminal Law, Laws of Lagos State 2011 and Section 239 of the Administration of Criminal Justice Law of Lagos State 2011.
Now, by Section 75 (1) of the Urban and Regional Planning and Development Law, it is provided thus:
“Any person who contravenes the provisions of this Law and Regulations made pursuant to this Law is guilty of an offence and shall be liable on conviction to a fine not exceeding the Sum of Two Hundred and Fifty Thousand Naira or one month of community service or both.”
However, by Section 239 ACJL of Lagos State 2011, it is provided thus:
“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 defense, the Court shall as to that particular charge discharge him.”
My lords, while the main thrust of this appeal is the issue of when a Court can either uphold or overrule a no case submission and whether on the peculiar facts and circumstances of this case as disclosed in the evidence of the Prosecution witnesses the Court below was right or wrong when it held that the 1st Respondent made out a prima facie case against the Appellants on Counts 1 – 111 for which they should enter upon their defense, yet the Appellants have raised a myriads of other issues which, touching on the competence or otherwise of the ruling of the Court below regarding the alleged failure to pronounce upon some of the issues raised by the Appellants in their no case submission with the legal effect of rendering the ruling a nullity by reason of the alleged breach of the Appellants’ right to fair hearing, shall be considered first in this judgment and resolved one way or the other before if need be the main issue in this appeal, dealing with the Appellants’ no case submission, shall be considered and resolved since in law competence is the soul and spirit of adjudication, whether in civil or criminal proceedings in the Courts. See Madukolu V. Nkendilim (1962) 2 SCNLR 341. See also Efiok V. Govt. of Cross Rivers State (2011) All FWLR (Pt. 593) 1993 @ p. 2003.
However, one of the major reforms of the new regime of the system of administration of criminal justice in Lagos State is the provision of the law limiting the time for raising objections bordering on validity of a charge or information before the Court. Thus, a Defendant may raise any objection to the validity of the charge or information at any time before Judgment provided however, any such objection, except as it relates to the jurisdiction, shall only be considered along with the substantive issue and the ruling thereon made at the time of delivery of the Judgment. It follows therefore, that objections shall not be taken or entertained by the Court during trial on the ground that the charge is imperfect or erroneous, which is now intended to checkmate frivolous preliminary objections that had hitherto littered the paths of criminal trials with unwanted thorns. See Fabian Obodo V. The State (2016) LPELR – 40939(CA).
My Lords, the fulcrum of issue three in the Appellants’ brief is the vexed issue of when in law can the proceedings and or judgment or ruling of a Court be said to be in breach of the right to fair hearing as constitutionally guaranteed to the citizens of this Country in the determination of their civil rights and obligations? In law, so grave is this issue that the effect of such a breach is that it invariably renders such a judgment a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation & Ors. V. Shoreline Lifeboat Ltd & Anor. (2010) All FWLR (Pt. 524) 56; Action Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt. 1303) 560 @ p. 593; Judicia Service Commission of Cross River State & Anor. V. Dr (Mrs) Asari Young (2013) 11 NWLR (Pt. 1364) 1.
In considering whether or not a proceeding or judgment or ruling of a Court was in breach of the right to fair hearing of a party, the law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See Newswatch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144.
The term ‘fair hearing’ is in most cases synonymous with fair trial and natural justice, an issue which clearly is at the threshold of our legal system and thus once there has been a denial of fair hearing the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from the conduct of the Court in the hearing of a case or in the judgment or ruling of the Court. However, the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. See Otapo V. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572. See also A. U. Amadi V. Thomas Aplin & Co Ltd (1972) All NLR 413; Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771.
The right to fair hearing is very fundamental and failure by a Court to observe it would invariably vitiate both the proceedings and judgment of such a Court, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were conducted or even how sound the resultant judgment was on the merit. However, it must be pointed out at once that the issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith or merely intended as a red herring to raise a storm in a tea cup without any factual basis. See Adebesin V. The State (2014) 9 NWLR (Pt. 1413) 609 @ pp. 641 – 642, where Ngwuta JSC, had pronounced emphatically thus:
“As for the related complaint of denial of right to fair hearing, my lord Chukwuma Eneh JSC had this to say: ‘There can be no doubt from the foregoing that fair hearing has become the whipping principles for counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is already dead as a dodo. The approach of counsel in general is deprecated. Fair hearing should, from what it is and represents in our adjudicative process be raised only seriously and not lightly.’ I agree with his Lordship”
See also Abubakar V. Yar’Adua (2008) 4 NWLR (Pt. 1078) 465 @ p. 503; Uzodinma V. Izunaso (N0. 2) (2011) 17 NWLR (Pt. 1275) 30; Agbogu V. Adiche (2003) 2 NWLR (Pt. 805) 509 @ p. 531; Agbapounwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 @ p. 40; Adebesin V. The State (2014) 9 NWLR (Pt. 1413) 609 @ pp. 641 – 642.
It was contended by the learned Senior Advocate for the Appellants that the Court below failed to consider and resolve myriads of issues placed before it in the Appellants’ no case submission which amounted to a breach of their constitutional right to fair hearing and consequently rendered the ruling appealed against a nullity and thus liable to be set aside without much ado. On the other hand, it was contended by the learned DPP for the 1st Respondent that the Court below considered all issues that are relevant for consideration under a no case submission in a criminal trial and there was therefore, no breach of the right to fair hearing of the Appellants.
My lords, it is now settled law that a Court must consider and pronounce on all issues arising from and properly submitted before it for determination by the contending parties. Generally, issues for determination are formulated by the parties. However, to every general rule there are exceptions and thus where the issue is subsumed in another issue or is found to be irrelevant or inapt or merely obfuscating the real issues for determination, it shall not be necessary for the Court to make separate pronouncement on either each of such subsumed issues or on irrelevant and inapt issues. See Sha (Jnr) V. Kwan (2000) 8 NWLR (Pt. 670) 685 @ pp. 691 – 692. See also Ogba V. Onwuzo (2005) 14 NWLR (Pt. 945) 331; Spring Bank Plc V. Dokkin Ventures Nigeria Limited (2012) LPELR 7983(CA); Uzuda & Ors V. Ebigah (2009) 8 – 9 NMLR 409 @ p. 422; Akpan V. The State (1992) 6 NWLR (Pt. 248) 431; Brawal Shipping Ltd. V. Onwadike (2000) 6 SCNJ 508 @ p. 522; Orji V. PDP (2009) 14 NWLR (Pt. 1161) 310 @ p. 408; Karibo V. Grend (1992) 3 NWLR (Pt.230) 426 @ p. 441; Osasona V Ajayi (2004) 14 NWLR (Pt.894) 527 @ p. 549; Okonkwo V. Udo (1997) 9 NWLR (Pt. 519) 16 @ p. 20.
I have taken a calm look at the ruling of the Court below as touching on the complaints of breach of fair hearing of the Appellants and I have asked myself in what manner or way did the Court below breached the right to fair hearing of the Appellants in its ruling as being contended in this appeal when all it did, in my finding, was merely to refuse to be distracted and determined to remain focused on the relevant issues for consideration in a no case submissions, which it did properly identified and considered in its ruling.
Having considered the facts and circumstances of this appeal, particularly the ruling of the Court below and taking into consideration the real focus in law in a no case submission by a Defendant in a criminal trial, it is my view and I so hold that the Appellants were both afforded every and equal opportunity with the 1st Respondent and all issues relevant for the proper and just determination of the Appellants’ no case submission were duly considered and resolved by the Court below in its ruling.
My lords, the right to fair hearing of the citizen is not breached merely because he losses a case or a point or issue in contention between him and his adversary in the Court and thus would be seen to have been observed only when the citizen wins either his case or points or issue against the other party. That is certainly not the protection afforded constitutionally by the right to fair hearing. It is my respectful view that winning or losing a case or point or issue in contest between the parties is dependent on the facts and evidence led before the Court. At any rate, in law the issue of fair hearing is a two – way traffic as well as a two – edged sword as both parties are equally entitled to the protection of the law affording them their guaranteed right to fair hearing. See Newswatch Communication Limited V. Attah (supra) @ p. 151. See also Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (PT. 200) 659; Adebesin V. The State (2014) 9 NWLR (Pt. 1413) 609 @ pp. 641- 642.
Now, whether the conclusion and findings of the Court below on the narrow issues, it rightly identified as are relevant and arising for consideration and determination in a no case submission, as made by the Appellants, was correct or wrong are not issues for consideration under an allegation of breach of right to fair hearing but rather is the crux of the issues to be considered under the merit of the real thrust of this appeal, which is whether or not the Court below was right when it overruled the Appellants’ no case submission and called upon them to enter upon their defense to the charges as laid against them under Counts 1- 111. I therefore, could not but agree with the apt submission of the learned DPP that most of all the other myriads of issues raised by the Appellants’ were diversionary, peripheral and really going to no issue if not amounting to mere leaning on trivial technicalities in a criminal trial, which ought not to be so or allowed by the Court.
I have considered the submission that the offence as laid in Count 1 is incompetent for failure to serve notice of contravention on the Appellant. In my finding, having considered the submissions of both counsel, Count 1 does not require any proof of service of notice of contravention to be competent as in my view such a contention would at best rather go to the issue of proof beyond reasonable doubt of the offence alleged under Section 75(1) of the Urban and Regional Planning and Development Law. It is thus an issue completely irrelevant at the stage of considering a no case submission. It must await a consideration of proof of the alleged offence beyond reasonable doubt, which can only arise at the conclusion of the substantive trial before the Court below.
I cannot therefore, but agree with the submission of the learned DPP, since nothing by way of legislation and or settled principles of law in judicial authority has been shown to the contrary by the Appellant, that in law the constitutional powers of the Attorney General to institute criminal proceedings cannot be hindered by any law or statute of the State. I hold therefore, that there is nothing in Section 75(1) of the Urban and Regional Planning Law amounting to any pre – condition that could impede the exercise of the powers of the Attorney General of Lagos State to institute criminal proceedings in the Court below against the Appellant. See Section 75 (1) of Urban and Regional Planning Development law of Lagos State. See also Olatunbosun V. State (2013) 17 NWLR (Pt. 1382) 167; Okpa V. State (2017) LPELR – 42205(SC)
I have looked at the provisions of Section 75(1) of the Urban and Regional Planning and Development Law and Section 222 of the Criminal Law, Laws of Lagos State 2011 by which provisions the offence charged under Counts 1 – 111 were laid and I find that they were properly laid against the Appellants upon compliance with all due process and conditions precedent and the question of whether they have been proved beyond reasonable doubt or not or would succeed or not is not an issue for determination at the stage of a no case submission. All that the law requires is that an offence and its punishment must be prescribed in a written law. I therefore, see no merit in all the Appellants? submissions that the offences charged under Counts 1 – 111 are incompetent in any way when on the contrary they were properly laid in line with the provisions of Section 75(1) of the Urban and Regional Planning and Development Law and Section 222 of the Criminal Law, Laws of Lagos State 2011. Consequently, I hold that Counts 1 – 111 are all valid. See Mohammed V. The State (2012) LPELR – 9694 CA. See also Attorney General of the Federation V. Clement Isong (1986) 1 QLRN 75.
Having deeply pondered over all the myriads of other issues raised by the Appellants, I am minded to agree with the submission of the learned DPP that at the stage of consideration of a no case submission the issue of pre – condition not raised by way of objection to the charge at the time plea was taken is truly not an issue for consideration under a no case submission and at any rate by Section 75(1) of the of the Urban and Regional Planning and Development Law under which Count 1 was laid there is no provision of such condition precedent of notice of contravention. At this stage of consideration of the Appellants’ no case submission, the only real, proper and relevant issue is whether or not a prima facie case has been made out against the Appellants by the 1st Respondent and not whether or not the 1st Respondent has proved its case beyond reasonable doubt as would warrant at this stage the conviction of the Appellants.
My lords, having resolved all the myriads of issues challenging the validity of ruling of the Court below in relation to the alleged but unproved breach of the Appellants’ right to fair hearing and affirming both the jurisdiction of the Court below to entertain the charges against the Appellants as well as the validity of the ruling of the Court below, I hold that Counts 1 – 111 are all valid and the Court below has the requisite jurisdiction to entertain them as laid in the information, let me now proceed to consider the main thrust of this appeal, which is the ruling of the Court below overruling the Appellants’ no case submission and calling on them to enter upon their defense.
In considering a no case submission, the position of the law is that where at the close of the Prosecution’s case evidence has not been led in support of all or any of the essential elements of the offence with which a Defendant was charged, such a Defendant is said to have no case to answer and ought to be discharged at that stage without being called upon to enter upon his defense or make any explanation as that would amount to calling on the Defendant to prove his innocence. See Ibeziako v. COP (1963) 1 All NLR 61 @ pp. 68 – 69, where the Supreme Court per Ademola, CJF., held as follows:
“A submission that there is no case to answer may properly be made and upheld; (a) When there has been no evidence to prove an essential element in the alleged offence; (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 convict on it.”
See also Dr. Olu Onagoruwa V. The State (1993) 7 NWLR (Pt. 303) 49; Ubanatu V. COP (2000) 1 SC. 31; Omisore V. State (2004) 28 WRN 106; Ekwunugo V. FRN (2008) 15 NWLR (Pt. 111)630; Practice Direction of Lord Parker Lord Chief Justice of England in 1962 1 All ER 227.
In our system of administration of criminal justice, a Defendant, who is constitutionally presumed innocent until the contrary is proved, carrries no duty in law to prove his innocence and therefore, where the Prosecution fails to make out any prima facie against him he is entitled to be discharged without much ado by the Court. This is also the position where at the close of the Prosecution’s case, the evidence led by the Prosecution has become so discredited as a result of cross examination or is so manisfestly unreliable that no reasonable Tribunal can safely convict on it. See Onagoruwa V. The State (1993) 7 NWLR (Pt. 303) 49. See also The State V. Bello (1989) CLRN 370.
In law therefore, to make out the essential elements of an offence is to make out a prima facie case against a Defendant for which he shall be called upon to defend himself on the charges against him. This simply implies that once at the close of the Prosecution’s case it is found or shown that no prima facie case has been made out against the Defendant, he shall at that stage be discharged and acquitted as there would be no basis for proceeding any further with his trial. See Chianugo V. The State(2002) 12 NWLR (Pt. 750) 228 @ p. 233.
My lords, what then is a prima facie case in law? A prima facie case has been defined generally to mean such as will prevail until contradicted or overcome by other evidence. A prima facie case is thus a case in which there is evidence which suffices to support the allegation made in it and which will stand unless there is evidence to rebut the allegation. In Duru V. Nwosu (1989) 1 NWLR (Pt. 113) 24 @ p. 43, Nnamani JSC (God bless His soul) had succinctly defined prima facie thus:
“It seems to me the simplest definition is that which says that there is ground for proceeding. In other words, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it, it suggests that the evidence produced so far indicates that there is something worth looking at”
See also Blacks Law Dictionary, 9th Edition @ p. 1159. See also Osborn?s Concise Law Dictionary, 8th Edition by Rutherford & Bone @ p. 259.
In Emedo V. State (2002) 15 NWLR (Pt. 789) 196, it was stated inter alia thus:
“It is the judge’s duty however, in a submission of no case to answer is made to discharge an accused where the evidence adduced by the prosecution does not disclose the necessary minimum evidence establishing the facts of the crime charged, in doing so, the Judge does not write a ‘Judgment’, it is not the judge?s job, at that stage, to weigh and evaluate evidence or decide who is telling the truth or who is lying and he is not to conclude that what the prosecution has adduce is unreliable… If a submission of no case is made, it is the judge’s duty not only to consider whether there is some scintilla of evidence which in law would lead to conviction, but also whether it would be safe to convict on the evidence as it stand… 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.”
And in Ikomi V. State (1986) 3 NWLR (Pt. 28) 340 it was reiterated inter alia thus:
“Prima Facie, means on the face of it. The true meaning of a prima facie case has been explained by Hubbard, J, in his judgment in Regina V. Coker and others. (1952) 20 NLR 62 where he held that a submission that there is no case to answer meant that there was no evidence on which the Court could convict ?even if the Court believed the evidence given.”.
So also, in Ugbede Ali V. State (2012) 10 NWLR (Pt.1309) @ p. 589, this Court had added its voice to this issue inter alia thus:
“There is no doubt and the law is trite as enunciated by Ba’Aba, JCA, in Gwandu vs. Kebbi State (supra,); that trial Courts should not delve into the substantive case at interlocutory stage because if the Court is allowed to revisit the substantive issue at any stage of the trial, it would tantamount to the Judge sitting on appeal on his earlier decision on the substantive matter thereby outraging the sense of justice of an independent dispassionate observer sitting in Court.”
Having reiterated the principles applicable in considering a no case submission and having also set out the provisions of the Laws under which the Appellants were tried under the Counts 1 – 111 as charged by the 1st Respondent, what are the evidence in support of the essential elements of the offences charged and were the essential elements made out at least on a prima facie basis against the Appellants’ Was the evidence led by the 1st Respondent through PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8 so discredited under cross examination or so manifestly unreliable as would support a no case submission as contended by the Appellants in this appeal to render the decision of the Court below perverse and thus liable to be set aside by this Court in this appeal?
At the trial before the Court below, the 1st Respondent called eight witnesses who testified as PW1 – PW8 and since it is only these pieces of evidence led through these witnesses that are relevant to the resolution of the sole issue for determination in this appeal as to whether or not the 1st Respondent made out a prima facie case against the Appellants at the close of the prosecution’s case as would require the Appellants to enter upon their defence to the charge against them, I shall take the liberty to set out in detail the evidence of these witnesses for the purpose of proper focus and analysis in this judgment.
PW1 was one Dr. Victor Olusegun Oyenuga. He stated inter alia that he is a COREN Registered Engineer and that he knows the Synagogue Church of all Nations’ building that collapsed. He is a member of Committee of professionals set up by Council of Registered Engineers (COREN) to determine the fitness of the foundation of the building and it was discovered that the area of the base needed is bigger that what was provided and that the supper structures were undersized in terms of quantity of iron rods used in the beam, which might have led to the collapse of the building. He was cross examined.
PW2 was one Adedamola Ayinde. He is a registered Town Planner and a Consultant Urban Planner. He stated inter alia that he was aware of the collapse of Synagogue Church of All Nations building on 12/9/2014, which was a Friday and that he moved the various State agencies to the site for rescue operation. He saw approval for 5 floors but by the time the building collapsed, it has gone up to 6 floors. The approval was no longer valid. The collapse building was not registered. He visited the site of the collapse on Sunday two days after the collapse and that the collapsed building has no approval. He was cross examined.
PW3 was one Musiliyu Olayimika Adebayo. He is a retired Chief Fire Officer for Lagos State. He stated inter alia that on 12/9/2014, one Mr. Eze called the Lagos State Fire Service, Alausa, Ikeja, Lagos to report the collapse of synagogue building at Ikotun but they could not enter the site as the Church Personnel were hostile until the next day when the Governor, Raji Fashola came and appealed to the Church Personnel and about 131 persons were rescued alive while 80 dead bodies were recovered. When they got to the scene on Friday 12/9/ 2014, they left the following Thursday after staying for 7 days and the slaps collapsed on each other like pack of cards. He partook in the rescue operation. He was cross examined.
PW4 was one Adesola Babatunde Kabir. He is a Civil Defense Officer attached to Disaster Unit of LASEMA. He stated inter alia that at 12 noon, his office received a distress call of collapse of Synagogue building and the team got to the collapse site at 1.30 pm. He found that 6 storey building had collapsed and he was there on Friday 12th through Sunday 14/9/2014. His team was able to rescue 131 persons alive and 86 dead bodies. The rescue Operation ended on 18/9/2014 and the Team went back to their duty posts. He saw that the building collapsed, some people were trapped, some died and some alive and his Team brought out both the living and the dead and those alive were taken to the Hospital while those that were dead were taken to the mortuary. They had to use cutter to cut the iron barricade in order to access the victims underneath the rubbles. He was cross examined.
PW5 was one Prof. John Oladapo Obafunwa. He is a professional Pathologist. He stated inter alia that various dead bodies from the site of the collapse were deposited in various mortuaries in Lagos. 7 corpses were deposited in LASUTH. He conducted the autopsy on the bodies deposited at LASUTH on 23/9/2014. It was a Team work and he was assisted by Forensic Experts from South Africa. Other bodies in other Mortuaries were handled by some other group of experts. Some of the samples taken were sent to South Africa for DNA and that 110 victims out of 116 were identified. He testified that the causes of death to be categorised into 6 categories namely: 1; Death resulting from multiple injuries. E.g. Skull or Limb fractures. About 56 fell into this category; 2, Traumatic Asphysia – Insufficient oxygenation, about 19 bodies fell into this category – the victims were unable to breath.; 3, Exanguinations – severe blood loss, about 19 victims; 4, Severe Fracture of the skull and crushing of the brain issue, about 12 victims; 5, Congested heart failure, the victim that died 7 days after fell into this category and 6, Accumulation of blood in the chest cavity – Haemothoras, about 19 victims. The 116 victims were issued with Death Certificates. He was cross examined by only the Appellant’s counsel.
PW6 was one Rafiq Olubukola Arogunjo. He is an officer of Nigerian Air Space Management Agency (NAMA). He stated inter alia that on 12/9/2014, he was in the office conducting training exercise between 10.51 and 12.33 pm. During that range of time there was no problem with the flight being used and it landed safely. Two days later he heard of the collapsed building. On playing the radar, he discovered that the aircraft never flew over the collapsed building as it was over half a mile away from the collapsed building. He was cross examined.
PW7 was one Engineer Oreoluwa Fadayomi. He is a member of a non Government Organization consisting of professionals called Building Collapse Prevention Guild (BCPG). He stated inter alia that he was the structural Engineer to the Technical Committee set up by BCPG to the collapse of the 7 storey building belonging to Church. Upon analysis he discovered that there were rigid or: stone point with reinforcement as it ought to be, the reinforcement found on ground is about half of what is expected to be used, the beam was slender and could not support the load. it is the load it is carrying and thereby making the building unstable, two of the beam column on the ground floor were under reinforced, all the beam on the ground floor were slender and foundation which the columns were sited were under sized. All of the above could be responsible for the collapse. He was cross examined.
PW8 was one MR. Linui Gubbi. He is an investigator with ICPC. He knows the 4th Defendant. He stated inter alia that he came across the case in the course of this investigation when a petition was written against one Mr. Akinfenwa George who is now at large but fully participated in the construction of the collapse Synagogue 7 storey. The petition was referred to him for investigation. He invited Mr. Akinfenwa George who in his statement claimed that the accused gave him the seal with which he marked the structural drawing of the collapsed building. He identified the said drawing as Exhibit P1. In the course of investigation, he discovered that Akinfenwa George knew the 4th Accused in Akure and that Akinfenwa, Ajala and Ogundeji jointly produced the drawing for the collapsed Synagogue Building. He tendered the statements of the 4th and 5th Respondents in evidence as Exhibits P14 (A) & P14 (B).
My lords, these are substance of the evidence before the Court below at the close of the Prosecution’s case when the Appellants’ counsel made a no case sibmission on their behalf and which was overrruled by the Court below in the ruling now appealed against. So, did the 1st Respondent fail to make out any prima facie case against the Appellant as contended by the Appellants in this appeal or was the Court below right when it held that the 1st Respondent did made out a prima facie case against the Appellants as contended by the 1st Respondent in this appeal?
In its ruling delivered on 8/3/2018, the Court below while holding that the 1st Respondent had made out a prima facie case against the Appellants and dismissing the Appellants’ no case submission, had stated inter alia thus:
I have read the Addresses filed and have listened carefully to oral adumbration made by Learned Counsel on both sides in exposition of their written briefs. The issued formulated by all Counsel (Prosecution and Defense) is basically and essentially the same. That is whether or not from the totality of evidence so far placed before the Court a prima facie case has in any way been established against the Defendants to warrant calling on them to enter their defense. The principle governing No Case submission has been ably and correctly stated by all learned Counsel. The job of this Court therefore is to apply the principle as ably and correctly stated to the facts of this case?
These are the guiding principles on a No Case to Answer. The Court at this stage is not to analyze, review or examine the credibility of evidence led?Without going into analysis as to the merit or credibility of the evidence led, one has to look at the evidence and see, whether or not any scintilla of evidence however slight connecting or linking the Accused to the offence charged?. From the statement of the law quoted above, the operative word is evidence however slight. In this case the 1st Defendant was charged with failure to procure approved plan before the commencement of the building in question. PW1 & PW2 gave evidence that there was no approved plan in respect of the building. That has satisfied the requirement in Agbo’s Case.
From the proceedings, there is evidence that 1. That the 2nd – 5th Defendants are involved directly or indirectly in the construction of the SCOAN building, 2. That the said building collapsed, 3. That certain number of persons died as a result of the collapse.
These questions that raised issues that call for explanations from no other persons but the Defendants. These are material evidence linking the Accused persons to the offences charged before the Court. This clearly have satisfied the requirement in Agbo’s Case. Learned Counsel to the 1st Accused Prince Lateef Fagbemi SAN in his oral adumbration argued that there was no compliance with Section 75 of the Urban & Regional Planning Law and that the condition precedent to preferment of a Charge has not been complied with. These issues that has to do with the substantive Charge.
The argument of Mrs. Titilola Akinlawon SAN and that of Mr. Olalekan Ojo that there is no proof of death of persons named and non-compliance with Section 75 (a) of Urban & Regional Planning Law is also caught by the principles in Ali’s Case being matters for substantive hearing which should be entertained at an interlocutory stage. The evidence of the Prosecution witnesses particularly that of 1st -5th 7th & 8th has sufficiently linked the Defendants to the alleged offence, sufficient enough to all on them to enter their defense.
In the result, I find no merit in the Submissions of No Case to Answer by all the Defense Counsel. The No Case Submissions are overruled and accordingly dismissed. The Defendants are hereby called upon to enter their Defense. See pages 484 – 570 in Vol. II of the record of appeal.
I have had a calm look at and reviewed the entirety of the evidence as led by the 1st Respondent through PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8, both oral and documentary. On the evidence as above as in the records of appeal it does appear to me that the 1st Respondent did lead sufficient evidence in support of all the essential elements of the offences in Count 1 – 111 with which the Appellants were charged and for which they stood trial before the Court below.
There was evidence that the 2nd Respondent’s buildiing constructed between 2008 and 2013 by the Appellants and 3rd – 4th Respondents had collapsed on 12/9/2014 and several named persons were killed on the same date in the incident, including 85 foreign nationals from South Africa were also killed and several other persons were injured. The names of 110 out of the 116 persons killed in the incident on 12/9/2014 were clearly stated in Counts 2 – 111. Their bodied were identified and autopsy duly conducted on their bodies. The PW5, one Prof. John Oladapo Obafuna, gave evidence to these facts but surprisingly he was not cross exained by counsel to the Appellants’ counsel and counsel to 3rd – 4th Respondents as only the 2nd Respondent’s counsel cross examined him, wherein he confirmed that he personally carried out autopsy on two of dead bodies, who were amongst the 116 persons killed in the incident of the collapsed 2nd Respondent’s building on 12/9/2014.
There were also Exhibit P1 which is the NBRRI/COREN Technical Committee Report on the collapse of the six storey Guest House building of SCOAN in Ikotun/Egbe Lagos State, whille Exhibit P2 is the COREN report on calculation of Beams 7. Exhibit P3 is the Structural Drawing of SCOAN and there is evidence that the detailing on Beam 7 are not adequate and the area of base needed is bigger than the one provided but the super structure were undersized in terms of physical size and quantities or number of iron rods in column and beams. The colapsed building has no approved plan and the existing approved plan is for the Church auditoruim and not the collapsed building. Exhibit P4 is the Application form for registration and processing of building, while Exhibits 8(1) – (5) are pictures of the collapsed building.
It was not disputed that 86 dead bodies were recovered from the site of the incident and 131 people were rescued alive. Out of the 116 dead bodies, 6 bodies were deposited at Isolo General Hospital Mortuary, 63 bodies at Mainland Hospital Mortuary Yaba, 7 bodies at LASUTH Mortuary Ikeja. About 110 victims identified out of 116 victims. Deaths resulted from Truamatic asphysia – insufficient oxygenation – 19 victims, Deaths resulted from Exanguination – severe blood lost – 19 victims, Deaths resulted from congested heart failure – the victim who died 7 days after the incident, Deaths resulted from accummulation of blood in the chest cavity – Haemothoras – 9 victims. Death certificates were issued. I hold that these pieces of evidence covered the entire elements of the offences charged in Counts 1 – 111. See pages 223 – 224, 233 – 247, 251, 255 – 258, 266, 284 and 290 in Vol. I of the record of appeal.
The only question then is this: whether these pieces of evidence clearly showing the entire constituent elements of the offences alleged against the Appellants under Counts 1 – 111 were so badly discredited in cross – examination and had thus become manifestly unreliable that no reasonable tribunal can safely convict on it? I agree with the apt submission of learned Senior Advocate for the Appellants that in law where the evidence led by the Prosecution has been badly discredited or deficient in the constituent essential elements of the offence charged, it will readily form the basis of a successful no case submission. I also agree with her submissions on what in law would amount to sufficient evidence in satisfaction of the essential element of the offence charged or contradiction in evidence.
Yet, it is also true that in law for contradictions to be countenanced, it must amount to material contradiction. In Onubogu V. The State (1974)9 SC 1 the Supreme Court Per Fatayi – Williams JSC (as he then was) had succinctly explained the rational for the position of the law inter alia thus:
“Where one witness called by the prosecution in another case contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation such as showing that the witness is hostile, before they can ask the Court to reject the testimony of one witness in preference for the evidence of the discredited witness. It is not competent for the prosecution which called them to pick and choose between them. They cannot without showing clearly that one is hostile witness, discredit one and credit the other.
See (Summer & Leivesly v. Brown & Co (1909), 25, TLR 745. We also think that even the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial judge, as was the case here to provide the explanation. One of the witnesses should furnish the explanation and thus give the defence the opportunity of testing, by cross-examination, the validity of the preferred explanation.”
Also, in Bassey V. The State (2012) All FWLR (Pt. 633) 1816 @ p. 1832, what amounts to substantial contradiction in evidence was explained thus:
“One evidence contradicts another evidence when it says the opposite of what the other evidence has stated and not when there is just minor discrepancy between them. Two pieces of evidence contradicts one another when they are themselves inconsistent on material facts.”
See also Godwin Igabele II V. The State (2007) 2 NCC 125; Odi V. Iyala (2004) 8 NWLR (Pt. 875) 283; Elewuju V. Onisaodu (2000) 3 NWLR (Pt.647) 95.
Having averted my mind to the above succinct position of the law, I am unable to see any material contradictions in the evidence of the witnesses for the 1st Respondent as would render their evidence so discredited and manifestly unreliable. It is my view, and I so find, that the pieces of evidence led by the 1st Respondent through its witnesses rather than being insufficient or discredited and unreliable at the stage of a no case submission, when the credibility of the witnesses was not yet in issue, concretizes the case of 1st Respondent, at least on prima facie basis, against the Appellants as would require the Court below, as it rightly did, in my finding, to call upon the Appellants to enter upon their defense to the charges against them.
Now, it is true and as unassailably and aptly submitted by the learned Senior Advocate for the Appellants that proof of evidence, which at best is a mere notice of summary of the witnesses to be called by the Prosecution are likely to say when and if eventually called to be witnesses at the trial, is not by itself pieces of judicial evidence until the witnesses are produced to give their testimony before the trial Court but in the instant case, having reviewed the ruling of the Court below I find that it did not rely on any facts merely contained in the proof of evidence but rather it relied on the sufficient and relevant evidence, both oral and documentary, as led before it from which it arrived at its correct findings and conclusion that the Appellants have a case to answer and therefore, the submission by the learned DPP for the 1st Respondent on the place of proof of evidence is incorrect and therefore, discountenanced as going to no issue. See Bayo Dada V. FRN (2014) LPELR – 24255 (CA). See also Godwin Pius V. The State (2012) LPELR – 9304 (CA); Ibekwe V. FRN (2004) All FWLR (Pt. 213) 1780; Bayo Dada V. FRN (2014) LPELR – 24255 (CA).
Based on the findings of facts, applicable principles of law and the reasons adduced above therefore, I hold firmly that the 1st Respondent placed before the Court below sufficient materials in form of relevant evidence in line with the offences charged under Counts 1 – 111 amounting to a prima facie case against the Appellants to warrant their being called upon to enter upon their defense, to offer some explanations on their role in defense of the criminal allegations made against them by the 1st Respondent and far be it from the correct position of the law that at the stage of the close of the Prosecution?s case, the Prosecution was or should be expected to prove the alleged offence against the Appellants beyond reasonable doubt. In law, all that was required of the Prosecution at the stage of the close of its case is the establishment of a prima facie case against the Appellants, nothing more, nothing less and nothing else! See Ajiboye V. State (1995) 8 NWLR (Pt. 414) 408. See also Ubanatu V. COP (2001) 22 ACLR 312 @ p. 335.
This is why where even if prima facie has been made out against a Defendant, he may yet at the end of the trial still be discharged and acquitted if the Prosecution failed to prove its case against him beyond reasonable doubt as required by law, notwithstanding the fact that at the close of its case it made out a prima facie case aganst him. In other words, prima facie case is not synonymous with proof beyond reasonable doubt. See Ubanatu V. COP (2001) 22 ACLR 312 @ p. 335. See also Ajidagba V. IGP (1958) 3 FSC 5 @ p. 6; Ajiboye V. The State (1995) 8 NWLR (Pt. 414) 408.
My lords, having therefore, come to the inescapable conclusion on the evidence before the Court below as in the printed record that the 1st Respondent did made out sufficient prima facie case on all the Counts 1 – 111 against the Appellants for which they were rightly called upon by the Court below, which had overruled their no case submissions, to enter upon their defense if they so wish to do, there is no need in my view to consider, if any other myriads of submissions by the Appellants’ counsel are still left by delving, as it were into the merit or otherwise of the substantive trial at a time when it is not yet time to consider the guilt or otherwise of the Appellants.
This stage is not the time to ponder and resolve difficult questions of law and facts in the substantive trial at a stage when the issue of credibility, weight and ascription of probative value to admitted evidence does not arise for consideration. The parties must keep their gun powder dry until when the time comes for the releasing of those arsenals of submissions of law and facts at the closing address at the conclusion of trial before the Court below. So much energy was dissipated on issues that have nothing to do with a consideration of a no case submissions and that ought not to be so since the kernel of a no case submission, which is within a very narrow compass, as enunciated and widely pronounced upon by the Courts should no longer pose any recondite issue in criminal trials and appeals.
Now, it has long been the admonitions of the apex Court and this Court to trials Courts not to write lengthy rulings where in their view and or finding a prima facie case has been made out against a Defendant by the Prosecution. However, where a trial Court is of the view and or finding that a prima facie has not been made out against a Defendant by the Prosecution, then perhaps, its ruling may be a little, I say a little, longer, since it would be required then to demonstrate the reasoning leading to its finding that no prima facie case has been made out against the Defendant and thereby discharging him of the offences with which he had been charged.
There is always the dilemma from the effect of a lengthy ruling in a no case submission, notwithstanding whether the no case submission is being upheld or overruled by the trial Court. I think even at this Court such caution must be exercised. This is so because where a Court writes a lengthy ruling on a no case submission, it may inadvertently pronounce on some of the substantive issues bordering on proof beyond reasonable doubt as would render the trial Court prejudicial to continue with the trial should its finding be overturned on appeal and the case is remitted to the trial Court.
In such a situation, the case may have to start de – novo before another judge of the trial Court. This, in my veiw, would clearly be against the spirit and intendment of the new regime of expeditious determination of criminal cases in the Courts as envisaged and engendered by the Administration of Criminal Justice Law of Lagos State 2011.
The ruling of the Court below was indeed very brief in relation to Counts 2 – 111 with which the Appellants and the 3rd – 4th Respondents were jointly charged but yet it met the requirements of the law and the admonition of the apex Court as well as this Court that once a trial Court in a criminal trial has made up its mind and formed a well-informed opinion on the totality of the evidence led by the Prosecution that a prima facie case has been made out against a Defendant, it need not write a lengthy ruling in order not to prejudge issues in the substantive trial that would require more mature considerations and deeper reflections in the final judgment. See Atoyebi V. FRN (2018) 5 NWLR (Pt. 1612) 350 @ p. 361, where the Supreme Court per Sanusi JSC., had reiterated so succinctly inter alia thus:
“Again, in writing a ruling in no case submission, it is advisable that a trial Court should try as much as possible to be brief and should refrain from making any remarks or observations on the facts”.
It follows therefore, that it is not part of the duty of the Court below to at the stage of a consideration of a no case submission to weigh and evaluate evidence or to decide who is telling the truth or not and all such like issues that have been urged upon this Court as part of the failings of the Court below in the ruling appealed against. I think the Court below was rather on course when it narrowed down its consideration to only the relevant issues for consideration in a no case submission, resisting the temptation, as it were, to make such a ruling either a final judgment or an all issues comers affairs, perhaps simply to please the Appellants’ counsel on the myriads of issues canvassed before it. See Emedo V. State (2002)15 NWLR (Pt.739) 196. Se also R. v. Baker (1999) 2 Cr. App. R. 335; Bello V. The State (1967) NMLR 1.
In my finding therefore, the Court below was right when it held that the 1st Respondent made out a prima facie case against the Appellants on all the Counts 1 – 111 necessitating their being called upon to enter upon their defense if they so wish. There is nothing perverse or erroneous in the totality of the findings, conclusions and decision of the Court below in this regard. In law an appellate Court has no business interfering with the correct finding of a trial Court even where the reason adduced and relied upon by the trial Court to arrive at the correct findings turns out to be wrong. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC., had pronounced with finality on this vexed issue, thus:
“An appellate court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the court to come to a wrong conclusion that the appellate court will interfere…”
See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.
In the light of all my findings above, I have no difficulty resolving the sole issue for determination against the Appellants in favor of the 1st Respondent and hold firmly therefore, that this appeal lacks merit and ought to be dismissed. Consequently, it is hereby so dismissed.
In the result, the Ruling of the High Court of Lagos State, Ikeja Judicial Division; Coram: L. B. Lawal – Akapo J., in Charge No. ID/1759C/2015: The State of Lagos V. The Registered Trustees of Synagogue Church of All Nations delivered on 8/3/2018, in which the Appellant?s no case submission was overruled, refused and dismissed is hereby affirmed.
Consequently, Charge No: Charge No. ID/1759C/2015: The State of Lagos V. Hardrock Construction Engineering Company & Akinbola Fatiregun is hereby remitted to the Court below for expeditious continuation and conclusion according to law.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother BIOBELE ABRAHAM GEORGEWILL JCA afforded me the opportunity of reading in draft before today the lead judgment just delivered and I agree with the reasoning and conclusion contained therein, adopt the judgment as mine with nothing further to add.
TOBI EBIOWEI, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my Learned Brother, BIOBELE ABRAHAM GEORGEWILL, JCA and on the strength of the evidence before the lower Court, I also agree that the appeal lack merit and it is dismissed. The No case submission fails and the ruling of the lower Court is upheld.
The appeal is against the lower Court decision overruling the no case submission made by the Appellant. The principles upon which a no case submission can succeed have been adequately brought out by my learned brother in the lead judgment just delivered. He has covered the field on the law. I will just add that, once the prosecution witnesses has made out a case that calls for the explanation of the conduct of a Defendant in a criminal matter, the no case submission will fail as the prosecution will be said to have made out a prima facie case against the Defendant. SeeAJIBOYE & ANOR VS. STATE (1995) 8 NWLR (PT 414) 408; ABACHA VS. STATE (2002) 3 SC 53; OKO VS. STATE (2017) LPELR-4226 7 (SC) 58; ATOYEBI VS. FRN (2017) LPELR- 43831 (SC).
I agree with my Learned Brother that the prosecution has made out a prima facie case against the Appellant and therefore the no case submission fails. I abide by the reasons and conclusion reached by my learned brother, Biobele Abraham Georgewill, JCA in dismissing this appeal.
Appearances:
Mrs. Titilola Akinlawon, SAN with him, Mrs. Shade Adebayo, James Aigbe, Esq., Remi Adebayo Esq., and Ayomide Ogunsanwo Esq.For Appellant(s)
Mrs. T. K. Shita – Bey, (DPP, Ministry of Justice, Lagos State) with him, Y. D. Oshoala Esq. (Director), A. Haroun Esq. (Assistant Director), Y. A. Sule Esq. (PSC), and Mrs. Bola Akinsete, (PSC) for the 1st Respondent
H. O. Afolabi, SAN with him, O. A. Diyan, Esq., A. Ayandipo Esq., and O. Arasi Esq. for the 2nd Respondent
Chief E. L. Akpofure, SAN with him, Chief Edwin Okonkwo, John Okoriko Esq., and Ayodeji Olabinwonnu Esq. for the 3rd Respondent
Olalekan Ojo, SAN with him, R. M. Bature Esq., and Adebayo Adedokun Esq. for the 4th RespondentFor Respondent(s)
