ILORI ADEKUNLE SUNDAY v. FEDERAL REPUBLIC OF NIGERIA (2013)

ILORI ADEKUNLE SUNDAY v. FEDERAL REPUBLIC OF NIGERIA

(2013)LCN/5989(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of March, 2019

CA/IB/346C/2018

RATIO

APPEAL: WHAT IS AN APPEAL

Now, in law, an appeal is a continuation of the case initiated at the trial Court. It therefore means that the right of access to Court as enshrined in Section 36 of the 1999 Constitution does not terminate at the trial. That is so because, the right of access to justice in our counts is a fundamental and substantive right guaranteed by the Constitution, and that right subsists up to the appellate level, through the Court of Appeal and only terminates at the Supreme Court which is the final Court vested with that supreme power by the Constitution, which is the grundnorm regulating the conduct of affairs in the Nigerian State. It should however by noted that, the Right of Appeal is only vested in persons aggrieved with the decision of a Lower Court; and such right enures in persons aggrieved by such decision to appeal to a higher Court. Thus, a Right of Appeal is a very important Constitutional Right which can only be fettered by the Constitution itself. See Global Excellence Communications Ltd v. Duke (2007) 16 NWLR (pt.1059) 22 and Skye Bank Plc v. Iwu (2017) 16 NWLR (pt.1590) 24 and Imegwu v. Okolocha & Ors (2013) 9 NWLR (pt.1359) 347 at 369 paragraphs F – G.PER HARUNA SIMON TSAMMANI, J.C.A.

RIGHT OF APPEAL TO THE COURT OF APPEAL: IS PROVIDED UNDER SECTION 241 ANS 241 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

The Right of Appeal to the Court of Appeal is enshrined in Sections 241 and 242 of the 1999 Constitution (supra). Such Right of Appeal is classified into appeals as of right and appeals with leave of either the High Court, or the Court of Appeal. Appeals as of right are encapsulated in Section 241(1)(a) ? (f), which stipulate as follows:
241 (1). An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) Where the Ground of Appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of the Constitution has been, is being or is likely to be contravened in relation to any person;
(e) Decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) Decisions made or given by the Federal High Court or a High Court
(i) Where the liberty of a person or the custody of an infant is concerned;
(ii) Where an injunction or the appointment of a receiver is granted or refused;
(iii) In the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise;
(iv) In the case of a decree nisi in a matrimonial cause or a decision in an admirably action determining liability; and
(v) In such other cases as may be prescribed by any law in force in Nigeria.
Appeals with leave of Court are guided by Section 242(1) of the 1999 Constitution (supra) which stipulates as follows:
242 (1). Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
It therefore means that any appeal which does not fall under any of the categories stated in Section 241(1)(a) – (f) of the Constitution, must be by leave of either the trial High Court or the Court of Appeal. There is therefore no inherent right of appeal because the right of appeal is a constitutional issue. The exercise of the power to appeal is therefore either as of right or by leave of Court. Section 241(1)(a) – (f) therefore stipulate situations where a person may appeal as of right while in all other situations, appeal will be by the leave of the Lower Court or the Court of Appeal.PER HARUNA SIMON TSAMMANI, J.C.A.

APPEAL: GROUND OF APPEAL: THE GROUND OF APPEAL HAS TO BE CONSIDERED TO DETERMINE WHETHER A GROUND OF APPEAL IS ONE OF LAW, FACTS OR MIXED LAW AND FACTS

For a ground of appeal to be considered as one of law alone, or of facts or mixed law and facts, the Court will thoroughly examine the grounds of appeal and its particulars. See Dr. Abdul v. C.P.C. & Ors (2013) 5 – 6 SC (pt.1) 64; State v. Omoyele (2016) LPELR 40842 (SC); Minister of Petroleum & Mineral Resources & Anor v. Expo Shipping Line (Nig.) Ltd (2010) 12 NWLR (pt.1208) 261 and Fasuyi & Ors v. P.D.P. & Ors (2017) LPELR 43462 (SC). Thus in the case of Anukam v. Anukam (2008) 5 NWLR (pt.1081) 455, the Supreme Court per Tabai, JSC held that:
It needs to be emphasized that it is usually difficult to draw a distinction between a Ground of law and a Ground of fact, the distinction being always a very tiny one. The distinction becomes even more difficult when it involves a point of law and mixed law and fact. A ground of mixed law and facts or facts simpliciter does not necessarily become a ground of law simply because such an appellation has been accorded it by the Appellants counsel.PER HARUNA SIMON TSAMMANI, J.C.A.

NO CASE SUBMISSION WHETHER A NO CASE SUBMISSION HAS BEEN MADE OUT
In the determination of whether or not the no case submission has been made out, the trial Court is not called upon to evaluate and express an opinion on the evidence before it. The Court?s only duty is to note and determine whether there is any legally admissible evidence linking the accused person with the commission of the offence charged. See Fagoriola v. FRN (2013) 17 NWLR (pt.1383) 322; Tongo & Anor v. C.O.P. (2007) 12 NWLR (pt.1049) 525; Agbo & Ors v. State (2013) 11 NWLR (pt.1365) 377 and Ikuforiji v. FRN (2018) LPELR 43884 (SC).PER HARUNA SIMON TSAMMANI, J.C.A.

JUSTICES

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria

Between

ILORI ADEKUNLE SUNDAY Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A.(Delivering the Leading Judgment): This appeal is against the Ruling of the Federal High Court, Ibadan Division delivered on the 22nd day of May, 2018 in Charge No: FHC/IB/36C/2015.

The facts leading to the arraignment of the Appellant and four other persons in the trial Court was satisfactorily summarized by Learned Senior Advocate for the Respondent in the Respondent?s Brief of Arguments filed on the 3/2/2008 as follows:
The Appellant and four other Defendants being prosecuted before the Federal High Court, Ibadan (the Lower Court) in respect of the Charge from which the instant appeal arose were officials of the Central Bank of Nigeria (CBN) who were saddled with the responsibilities of receiving deposits from Deposit Money Banks (DMB), boxing of currency, making payments for withdrawals by the DMB, classification of cash into Counted Audited Clean (CAC) notes or Counted Audited Dirty (CAD) notes, and eventually, for the coordination of evaluation of mutilated currencies which is known as ?Briquetting Exercise?, at the Ibadan branch of the CBN. The briquetting exercise is the

process by which Counted Audited Dirty currencies are destroyed so as to enable the CBN control the volume of money in circulation and also maintain accurate data of money supply in the economy.
The Appellant herein was a member of the briquetting panel constituted by the CBN to undertake briquetting exercise between 4th and 8th August, 2014. In the performance of that responsibility, the Appellant conspired with the other Defendants to shred newspapers in place of a box of N1,000.00 Counted Audited Dirty (CAD), thereby increasing the money in circulation and causing inaccurate data of money supply in the Nigerian Economy. After the completion of the fraudulent exercise, and in a bid to cover up the fraud, the Appellant and the other Defendants wrote a report to the management of CBN stating that the exercise went well while omitting to indicate the shredding of newspapers as against currency. The Appellant did not report to the management that what they destroyed at the briquetting exercise were mere newspapers as against mutilated notes which were meant to be removed from circulation.
After investigation by the EFCC and upon being satisfied that a

prima facie case has been made out against the Appellant and the other Defendants, the commission preferred a 5 ? Count Charge against them on 19th May, 2015. The Defendants were arraigned before the Lower Court in respect of the Charge on 2nd June, 2015. On 12th June, 2017, the prosecution filed an amended charge and the amendment was allowed by the Court on 22nd June, 2017.?

It is necessary to point out that the Appellant was the third (3rd) accused person at the trial. He was arraigned on Counts 1, 2, 3 and 5 of the Amended Charge dated the 12th day of June, 2017. At the trial, the prosecution called twelve (12) witnesses and tendered a number of Exhibits. At the close of the prosecution?s case, the Appellant entered a no case submission. Same was duly argued, and in a Ruling delivered on the 22nd day of May, 2018, the learned trial Judge overruled the Appellant on the no case submission and called on him to enter his defence. Being aggrieved by the said Ruling, the Appellant has filed this appeal.

?The Notice of Appeal which is at pages 690 ? 693 of the Record of Appeal was dated and filed on the 4/7/2018. It consists of

four (4) Grounds of Appeal. On the 4 Grounds of Appeal, the parties filed and exchanged Briefs of Arguments as required by the Rules of this Court. The Appellant?s Brief of Arguments settled by Dr. Akin Onigbinde, SAN, FCIArb., was dated the 7/11/2018 and filed on the 16/11/2018. Three issues were distilled therein for determination as follows:
1.Whether the Respondent led evidence to establish the ingredients of the offences charged in Counts 1, 2 and 5, to warrant the Appellant opening his defence in respect of those Counts.
[Grounds 1 & 3].
2. Whether the quotation from the testimony of PW4 (pages 416 to 418) of the Record of Appeal, where she said;
?when he said we should shred the newspaper I started crying. I was crying because the bank asked me to come and shred money. I was expecting other members of the briquetting team to say something but they were not saying anything? On getting to the briquetting room, I now discovered that the briquetting machine has started working. I sat down with my other panel members and I was expecting that we should all be talking about what happened because it was strange to me.

I then spoke to my colleague Mr. Ilori, the 3rd Defendant and I asked him that are you sure you did not join them to shred papers?. He said no..;?
relied upon by the Trial Court to establish conspiracy in Count 1 of the Amended Charge has any element of conspiracy therein.
3. Whether charges in Counts 1 and 2 are competent without the prosecution complying with the condition precedent in Section 1(1) of the Recovery of Public Property (Special Provision) Act, Cap.R4, Laws of the Federation of Nigeria, 2004 under which the Counts were charged.
[Ground 4].

The Respondent?s Brief of Arguments settled by Rotimi Jacobs, SAN was dated and filed on the 03/12/2018. Unlike the Appellant, the Respondent distilled only one issue for determination as follows:
?Whether the Lower Court was wrong in holding that the Respondent (prosecution) has made out a prima facie case against the Appellant to warrant his being called upon to enter his defence.? [Grounds 1 ? 4].

?The Appellant then filed an Appellant?s Reply Brief in response to the Respondent?s Brief of Arguments. It was dated the 7/12/2018 but filed

on the 10/12/2018.

?I wish to point out at this juncture that the Respondents had raised and argued a Notice of Preliminary Objection. Same was raised and argued at pages 3 ? 5 of the Respondent?s Brief of Arguments. The Notice of Preliminary Objection reads as follows:
TAKE NOTICE that the Respondent herein intends, at the hearing of this appeal, to raise and rely upon a Preliminary Objection, notice whereof is given to the Appellant, to wit:
1. The Appellant?s appeal being an appeal against the interlocutory decision of the Federal High Court, Ibadan requires the leave of Court and since the Appellant did not seek the leave of Court before filing his Notice of Appeal, the appeal is incompetent and should be struck out by this Honourable Court.
2. Ground 4 contained in the Appellant?s Notice of Appeal which borders on the alleged failure of the prosecution to establish the condition precedent in Section 1(1) of the Recovery of Public Property (Special Provision) Act, Cap. R4, Laws of the Federation of Nigeria, 2004 was never raised by the Appellant in his no case submission before the Lower Court and the Lower Court

did not consider that point in its ruling.
TAKE FURTHER NOTICE that the Grounds upon which the objection is brought are:
(1). The Appellant?s appeal is against the interlocutory decision of the Federal High Court, Ibadan dismissing his No case submission application.
(2). The Grounds of Appeal and their particulars contained in the Appellant?s Notice of Appeal are questions of facts or at best mixed law and facts.
(3). The Appellant ought to seek and obtain the leave of Court to appeal against the said interlocutory decision but the Appellant failed to do so before filing the appeal.
(4). The failure to obtain the leave of the Court to Appeal against the interlocutory decision of the Lower Court renders the appeal incompetent and deprives this Honourable Court the jurisdiction to entertain the Appellant?s appeal.

?As stated earlier, the Preliminary Objection was argued at pages 4 ? 5 of the Respondent?s Brief of Arguments. Therein, learned counsel for the Respondent contended that, the Appellant?s appeal is against the interlocutory decision of the Federal High Court, Ibadan delivered on the 22nd

day of May, 2018. That, that being so, the Appellant is under constitutional duty to seek the leave of the Lower Court, or of this Court; otherwise, the appeal will be incompetent. Sections 241(1) and 242(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) were cited in support. It was then submitted that, the Appellant, therefore, had to seek leave of Court before filing the Notice of Appeal. It was further submitted that the provisions of Sections 241(1) and 242 of the 1999 Constitution (supra) are not ambiguous and that a careful construction of those provisions would reveal that the Appellant failed to comply with those mandatory provisions. The cases of Akindipe v. State (2008) 15 NWLR (pt.1111) 560 andOgolo v. Ogolo (2006) 5 NWLR (pt.972) 163 at 171 ? 172 were then cited to submit that the Notice of Appeal disclose that the Grounds of Appeal and their particulars are questions of facts or are at best of mixed law and facts. We were accordingly urged to strike out this appeal.

?Learned Counsel for the Respondent went on to contend that, the issue of non-compliance with the condition precedent was never raised by the

Appellant. That, the Appellant cannot raise it on appeal without the leave of Court. In other words, that the Appellant cannot now be allowed to raise before this Court, an issue that was not raised, canvassed or argued by him at the trial Court, without the leave of Court. The case of PDP V. Sheriff (2017) 15 NWLR (pt.1588) 219 was then cited to urge us to strike out Ground 4 of the Notice of Appeal.

?In response, learned counsel for the Appellant submitted that the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (supra) are very explicit. That Section 241 of the Constitution (supra) identifies with clarity the situations where an appeal will be as of right, without the need for the leave of Court. Referring to the case of Oyewinle v. Iragbiji (2014) All FWLR (pt.731) 1536 at 1559 paragraphs B ? D and Section 241(b) of the 1999 Constitution (supra) learned counsel contended that, a perusal of the Notice of Appeal will reveal that each of the Grounds of Appeal begs a question of law, touching on whether the trial Court considered the ingredients of the offence preferred against the Appellant; whether the quotation relied upon

by the trial Court in arriving at its conclusion that the Appellant has a case to answer, and whether the trial Court is clothed with jurisdiction upon failure of the Respondent to comply with the provisions of Section 1(1) of the Recovery of Public Property (Special Provisions) Act. That all these are questions of law which deserve to be resolved by the Court.

Learned Counsel for the Appellant cited the case of Global West Vessel Specialist (Nig.) Ltd v. Nigeria NLG Ltd & Anor (2017) All FWLR (pt.881) 1119 at 1149 paragraphs B ? F was also cited to further submit that, in law, what amounts to a question of law is neither vague nor unascertainable. That, in the consideration of a no-case submission, the trial Court is enjoined not to evaluate evidence, or ascribe weight to same, but to consider if the prosecution has placed anything on the table that satisfies the requirement of the law on the ingredients of that particular offence. That in the instant case, the grouse of the Appellant is that the trial Court held that he has a case to answer when the ingredients of the offences alleged against him were not established. It was then submitted

that, this makes the Grounds of Appeal, grounds of law, which do not require leave of Court to file. Furthermore, that it was decided in the case of Suberu v. State (2010) 8 NWLR (pt.1197) 586 at 602 paragraph B and 609 paragraphs C ? D, that a no-case submission is a Constitutional issue and therefore, an issue of law alone.

On the argument that the Appellant raised the issue of incompetence of Court 5 for the first time in this Court, it was submitted that, the Appellant could raise the issue of jurisdiction for the first time in this Court and even in the Supreme Court, without the leave of Court. The cases of Obiakor v. State (2002) FWLR (pt.113) 299 at 309 paragraphs A ? B and Oredoyin v. Arowolo (1989) 4 NWLR (pt.114) 172 were cited in support. The case ofAfu v. Ngoro (2016) All FWLR p.825 at 838 paragraphs B ? D was also cited to submit that, the failure to fulfill the condition precedent is a jurisdictional issue which can be raised at any point. We were accordingly urged to uphold the arguments of the Appellant, and to dismiss the Preliminary Objection.

Now, in law, an appeal is a continuation of the case

initiated at the trial Court. It therefore means that the right of access to Court as enshrined in Section 36 of the 1999 Constitution does not terminate at the trial. That is so because, the right of access to justice in our counts is a fundamental and substantive right guaranteed by the Constitution, and that right subsists up to the appellate level, through the Court of Appeal and only terminates at the Supreme Court which is the final Court vested with that supreme power by the Constitution, which is the grundnorm regulating the conduct of affairs in the Nigerian State. It should however by noted that, the Right of Appeal is only vested in persons aggrieved with the decision of a Lower Court; and such right enures in persons aggrieved by such decision to appeal to a higher Court. Thus, a Right of Appeal is a very important Constitutional Right which can only be fettered by the Constitution itself. See Global Excellence Communications Ltd v. Duke (2007) 16 NWLR (pt.1059) 22 and Skye Bank Plc v. Iwu (2017) 16 NWLR (pt.1590) 24 and Imegwu v. Okolocha & Ors (2013) 9 NWLR (pt.1359) 347 at 369 paragraphs F ? G.

The Right of Appeal to the Court of

Appeal is enshrined in Sections 241 and 242 of the 1999 Constitution (supra). Such Right of Appeal is classified into appeals as of right and appeals with leave of either the High Court, or the Court of Appeal. Appeals as of right are encapsulated in Section 241(1)(a) ? (f), which stipulate as follows:
?241 ? (1). An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases ?
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) Where the Ground of Appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of the Constitution has been, is being or is likely to be contravened in relation to any person;
(e) Decisions in any criminal proceedings in which the Federal High Court or a High Court

has imposed a sentence of death;
(f) Decisions made or given by the Federal High Court or a High Court ?
(i) Where the liberty of a person or the custody of an infant is concerned;
(ii) Where an injunction or the appointment of a receiver is granted or refused;
(iii) In the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise;
(iv) In the case of a decree nisi in a matrimonial cause or a decision in an admirably action determining liability; and
(v) In such other cases as may be prescribed by any law in force in Nigeria.
Appeals with leave of Court are guided by Section 242(1) of the 1999 Constitution (supra) which stipulates as follows:
?242 ? (1). Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.?
?It therefore means that any appeal which does not fall under any of

the categories stated in Section 241(1)(a) ? (f) of the Constitution, must be by leave of either the trial High Court or the Court of Appeal. There is therefore no inherent right of appeal because the right of appeal is a constitutional issue. The exercise of the power to appeal is therefore either as of right or by leave of Court. Section 241(1)(a) ? (f) therefore stipulate situations where a person may appeal as of right while in all other situations, appeal will be by the leave of the Lower Court or the Court of Appeal.

In the instant case, the Respondent?s objection is grounded on the fact that, the decision appealed against is an interlocutory decision and therefore the leave of Court was necessary before the appeal could be filed. The Appellant on the other hand contends that the Grounds of Appeal are on grounds of law alone. Indeed Section 241(1)(b) stipulates that where the grounds of appeal are of law alone, an appeal can be validly grounded as of right, without the need to seek the leave of Court. The question now is, how to determine whether a ground of appeal is on law alone.
?In law, the fact that a ground of appeal is

dubbed as one of law alone, or error of law or misdirection of law, will not necessarily make the ground one of law. For a ground of appeal to be considered as one of law alone, or of facts or mixed law and facts, the Court will thoroughly examine the grounds of appeal and its particulars. See Dr. Abdul v. C.P.C. & Ors (2013) 5 ? 6 SC (pt.1) 64; State v. Omoyele (2016) LPELR ? 40842 (SC); Minister of Petroleum & Mineral Resources & Anor v. Expo Shipping Line (Nig.) Ltd (2010) 12 NWLR (pt.1208) 261 and Fasuyi & Ors v. P.D.P. & Ors (2017) LPELR ? 43462 (SC). Thus in the case of Anukam v. Anukam (2008) 5 NWLR (pt.1081) 455, the Supreme Court per Tabai, JSC held that:
?It needs to be emphasized that it is usually difficult to draw a distinction between a Ground of law and a Ground of fact, the distinction being always a very tiny one. The distinction becomes even more difficult when it involves a point of law and mixed law and fact. A ground of mixed law and facts or facts simpliciter does not necessarily become a ground of law simply because such an appellation has been accorded it by the Appellant?s counsel.

The Court has the task of carefully examining the ground of appeal to ascertain this fine distinction
?This Court and indeed the Supreme Court has laid down certain guidelines to enable the Courts make a distinction between a ground of law on one hand; and a ground of facts simpliciter or of mixed law and facts on the other hand. These guidelines are to determine:-
(a) Whether a ground of appeal complains of an error involving a misunderstanding or misconception of the law or a misapplication of the law to prove or admitted facts; it is a ground of law.
(b) A ground of appeal which complains of the Lower Court?s exercise of its discretion necessarily involves the appellate Court?s consideration of the peculiar facts and circumstances upon which the discretion was exercised and so one of fact. But where the ground complains of the Lower Court?s use of wrong principles in the exercise of its discretion, the facts and circumstances in which the discretion was exercised are no longer in issue. The only issue in such a case is that of the alleged wrong principle and therefore one of law alone.
(c) A ground of

appeal which complains of the Lower Court?s evaluation of evidence and alleges sufficiency or insufficiency of evidence is one of fact or at best one of mixed law and facts. Where however the ground of appeal does not complain about the inference to be drawn from the established or admitted facts, it is one of law. Similarly, where the ground of appeal alleges that there is no evidence upon which the Lower Court could reach its decision, it is a ground of law.
Above are the laid down criteria for determining whether a ground of appeal is one of law alone or of facts or mixed law and facts. See also Anambra State Housing Development Corp. v. J.C.O., Emekime (1996) 1 NWLR (pt.426) 505 at 527 ? 528; Chief of Air Staff & Ors v. Iyen (2005) 6 NWLR (pt.922) 496; Abdul v. C.P.C. (2014) I NWLR (pt.1388) 299 and First Bank of Nigeria Plc v. T.S.A. Industries Ltd (2010) 15 NWLR (pt.1216) 247.
To determine this issue, I find it very necessary to reproduce the grounds of appeal (particularly Grounds 1 ? 3 thereof), which I find germane to the determination of the first Ground for the objection:-
Ground One
The learned trial Judge

erred in law when he held that the 3rd Defendant had a case to answer in Counts 1, 2 and 5, without considering the evidence before the Court in relation to the ingredients of the offences charged in Counts 1, 2 and 5.
PARTICULARS:
(a). The learned Judge without recourse to the ingredients of the offences contained in Counts 1, 2 and 5 held that the 3rd Defendant had a case to answer in Counts 1, 2 and 5.
(b). The Honourable Court failed to relate the evidence before the Court to the ingredients of the offences charged to reach a decision that the 3rd Defendant had a case to answer in respect of Counts 1, 2 and 5.
(c). The decisions in the ruling cannot be supported by weight of evidence. The Court adopted the evidence adduced against the other Defendants as the criteria for refusing the no case submission of the Appellant.
(d). The Confessional Statement did not admit the crimes alleged.
GROUND TWO
The learned trial Judge erred in law when he held that the Appellant has a case to answer on Count 1, when the Court relied on a portion of the evidence of PW4 which had no bearing to conspiracy in the following words: ?When

he said we should shred the newspaper 1 started crying. I was crying because the bank asked me to come and shred money. I was expecting other members of the briquetting team to say something but they were not saying anything? On getting to the briquetting room, I now discovered that the briquetting machine has started working. I sat down with my other panel members and I was expecting that we should all be talking about what happened because it was strange to me. I then spoke to my colleague Mr. Ilori, the 3rd Defendant and I asked him that, are you sure that these people are not trying to play pranks with me. He then said no. I asked him that are you sure you did not join them to shred papers? He said no.?
PARTICULARS
(a) There is no substance of conspiracy in the portion of the evidence relied upon by the Court to hold that the 3rd Respondent has a case to answer in respect of Count 1.
(b) The Court, in holding that the Appellant has some explanations to make in Count 1, relied on a statement in the evidence of PW4, an evidence that highlighted that the Appellant and PW4 raised alarm when they sighted the newspapers rather than

money.
(c) There was however evidence by the PW4 that the boxes had been stuffed with newspaper rather than money before their team, which included the Appellant arrived for the briquetting exercise.
(d) There is no iota of proof or evidence led against the Appellant by the Respondent to establish conspiracy as charged in Court.
GROUND THREE
The learned trial Judge erred in law when he held that the Appellant has a case to answer on Counts 2 and 5 of the amended charge.
PARTICULARS
(a) Count 2 relate to the destruction of a box marked Counted and Audited Dirty filled with newspapers.
(b) The Count discharged and acquitted the Appellant of Count 3 which relates to the offence of stealing/conversion of the sum of N10,000,000.00, but conversely turned around to hold that the 3rd Defendant has a case to answer in a Court relating to increasing the money in circulation.
(c) There is no iota of evidence establishing the ingredients of the offence as charged in Count 2 against the Appellant.
(d) Count 5 alleged that the Appellant was privy to omitting material particulars in a report submitted to Central Bank of Nigeria

whereas the said Report was not tendered before the Court.
(e) The evidence before the Court is that the Appellant has a duty to report to Central Bank of Nigeria as a mere panel member.
(f) The said Statement identifies a Statement from the Appellant, a Statement which does not say that the Appellant is duty-bound to make any report.
(g) The Appellant did not report to his Branch Controller because as a mere panel member, he had no obligation to report.
(h) The report which misled the Central Bank Monetary Policy and for which the Appellant is being held for abuse of public office, which Grounds Counts 1, 2 and 5 was not tendered before the Court.
?I have carefully considered the three Grounds of Appeal reproduced above. It is to be understood that this appeal arises from the ruling of the trial Court in respect of a no case submission made by the Appellant. It is therefore an interlocutory decision since by the ruling the Appellant was called upon to enter his defence, the no case submission having been overruled. In law, a no case submission can be rightly raised and upheld were:
(a) When there has been no evidence to prove an

essential element of the offence charged; or
(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.
In the determination of whether or not the no case submission has been made out, the trial Court is not called upon to evaluate and express an opinion on the evidence before it. The Court?s only duty is to note and determine whether there is any legally admissible evidence linking the accused person with the commission of the offence charged. See Fagoriola v. FRN (2013) 17 NWLR (pt.1383) 322; Tongo & Anor v. C.O.P. (2007) 12 NWLR (pt.1049) 525; Agbo & Ors v. State (2013) 11 NWLR (pt.1365) 377 and Ikuforiji v. FRN (2018) LPELR ? 43884 (SC). Thus, the determination of whether or not a prima facie case has been made out would mean that the trial Court would necessarily require the application of the law to the proved facts. It is the law that, where the ground of appeal complains about a misapplication of the law to the facts already proved or admitted, it is a ground of law. To that end, it is my view

that Grounds 1, 2 and 3 are grounds of law. Though arising from an interlocutory decision, the grounds of appeal are grounds of law and therefore appealable as of right by virtue of Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (supra).

The other ground of appeal, which is Ground 4, is that, the learned trial Judge erred in holding that the Appellant had a case to answer in respect of Counts 1 and 2 when the prosecution did not comply with the condition precedent in Section 1(1) of the Recovery of Public Property (Special Provision) Act, Cap. R4, Laws of the Federation of Nigeria, 2004. Here, the Respondent contends that the issue of non-compliance with a condition precedent was never raised at the trial Court and therefore Ground 4 is incompetent. The Appellant is of the view that, the ground of appeal raises issue of jurisdiction which can be raised at any time, even for the first time on appeal. ?Now, it is the law that, an appeal is an invitation to a higher Court to review the decision of an inferior or Lower Court. It calls upon the higher Court to determine whether on the facts presented before it, and based on

the applicable law, the Lower Court came to the right or wrong decision. See Nsirim v. Amadi (2016) LPELR ? 26053 (SC). An appeal should therefore be against the decision of the Lower Court. It is a complaint against the ratio decidendi or the reason for the decision of the trial Court. See Ibigbami & Anor v. Mil. Gov; Ekiti State (2004) 4 NWLR (pt.863) 243; Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR ? 41822 (SC) and GTB v. Innoson Nigeria Ltd (2017) LPELR ? 42368 (SC). It therefore means that where the issue raised on appeal was not submitted to the Lower Court and determined by it, such issue cannot form the basis for any ground of appeal. To raise such issue which was not raised and pronounced upon by the trial Court, leave of Court must be sought and obtained. Where the leave of Court has not been sought and received, such ground of appeal will be incompetent and liable to be struck out. In other words, only an issue pronounced upon by a Lower Court will ground a competent appeal. See Saraki v. Kotoye (1992) 11 ? 12 SCNJ 26; M.B.N. Plc v. Nwobodo (2005) 14 NWLR (pt.945) 379 and Ikenta Best (Nig.) Ltd v. A.G; Rivers State (2008) 6 NWLR (pt.1084) 612.
?

?Learned Counsel for the Appellant has argued that the issue raised is one of jurisdiction which may be raised at any time; even for the first time on appeal. I have carefully perused the provision of Section 1(1)(a) & (b) of the Recovery of Public Property (Special Provisions) Act (supra) referred to by learned counsel for the Appellant. It is my view that the provisions of the Act, particularly Section 1(1) thereof does not purport create a condition precedent to be fulfilled before any person accused of engaging in any corrupt act or breach of the code of conduct can be prosecuted. Even if it does, the exercise of the power to constitute a panel to investigate is discretionary. Section 1(1) of the Act (supra) is therefore, in no way a bar to any criminal prosecution. In other words, the provisions of the Act referred to, do not operate as a clog or as a condition precedent to the exercise of jurisdiction by the Courts to try offences created under the Act. It is therefore, erroneous in my view, to throw in the issue of jurisdiction at this stage. That being so, the Preliminary Objection of the Respondent on

this ground has merit and therefore succeeds. Consequently Ground four (4) of the Notice of Appeal is hereby declared incompetent. It is accordingly struck out. Issue three (3) distilled therefrom is also struck out.

It would be seen therefore that the Preliminary Objection has succeeded in part. Consequently, I find that Grounds 1, 2 and 3 and the issues distilled therefrom are competent. This appeal shall therefore be determined on those Grounds.

I had earlier on, in the course of this judgment reproduced the issues formulated for determination by the parties. I am of the view that, one issue will suffice for the determination of this appeal. In that respect, I shall adopt the sole issue formulated by the Respondent. Thus, the Appellant?s issues 1 and 2 shall be considered together.

On the substantive appeal, learned counsel for the Appellant submitted that, a no case submission will be upheld where the prosecution have failed to make out a prima facie case against the accused. The cases of Duru v. Nwosu (1989) 1 NWLR (pt.133) 24 at 43 and Uzoagba v. C.O.P. (2013) All FWLR (pt.685) 337 at 346 were cited in support. The case at

George v. FRN (2014) All FWLR (pt.718) 737 at 896 paragraphs A ? E was also cited to submit that, in law, every element of the charge must be established before the Court can hold that a prima facie case has been made out against the accused. That in the instant case, the trial Court erred in law when it held that the prosecution has made out a prima facie case against the Appellant when all the elements of the offences charged had not been proved by the evidence adduced at the trial.

?On the first count which alleges conspiracy to contribute to the economic adversity of the Federal Republic of Nigeria, learned counsel for the Appellant contended that the allegation against the Appellant is that he conspired with the other accused persons to destroy a box marked ?Counted Audited Dirty? filled with newspaper in place of a box containing ten million naira (N10,000,000.00) of N1,000.00 denomination. That such act contributed to the increase of money in circulation which the briquetting exercise was meant to control. That the act of the Appellant constitute an offence contrary to Section 1(2)(a) and 10(1) of the Recovery of Public Property (Special Provision) Act (supra)

The case of Obiakor v. State (2002) (supra) at 628 ? 629 was cited in support and to further contend that, the Appellant was not a member of Ibadan Branch of the Central Bank of Nigeria (CBN) and was unaware of the briquetting exercise of the 4th ? 8th August, 2014 till the 01/8/2014 nor did he know the other members of the briquetting until the 4/8/2014 in Ibadan, when the briquetting exercise was to commence. That, this fact is supported by the evidence of PW4 given under Cross-Examination.

Referring further to the testimonies of PW4, PW6 and PW7, learned counsel for the Appellant submitted that, for a charge of conspiracy to succeed, it must be proved that the accused positively took part in the crime alleged. The cases of Akpan v. State (1994) 8 NWLR (pt,.361) 226 at 248; Obiakor v. State (supra) and Geoffrey v. F.R.N. (2016) All FWLR (pt.857) 419 at 450 paragraphs G ? H were then cited to submit the evidence adduced at the trial did not establish that the Appellant conspired to commit any offence as he did not have the opportunity to do so. Referring further to the reasoning of the learned trial Judge at

pages 416 ? 418 of the Record of Appeal, learned counsel contended that, there is no shred of evidence to link the Appellant with conspiracy to destroy a box marked ?Counted Audited Dirty? filled with newspapers. In other words, that the prosecution failed to lead any positive evidence to show that the Appellant conspired with anyone to cause economic adversity to the Federal Republic of Nigeria. It was thus submitted that the quotation from the testimony of PW4 relied on by the learned trial Judge does qualify as evidence to ground the charge of conspiracy against the Appellant.

?Still on the charge of conspiracy, learned counsel for the Appellant went on to submit that the quotation relied on by the learned trial Judge does not establish any element of agreement between the Appellant and anyone to commit the offence alleged. That on the contrary, it establishes that the Appellant was unaware of the happenings until the box containing newspapers was opened in the presence of all present nor was he a participant in the meeting that was held afterwards. That, the fact that the Appellant lied to the PW4 on her return to the briquetting

cannot translate to his agreeing to the commission of the offence charged. The cases of Ebenezer v. State (2017) All FWLR (pt.891) 922 at 982 paragraphs C ? D; Omogodo v. State (2017) All FWLR (pt.897) 2018 at 2036 were cited in support. We were accordingly urged to hold that the learned trial Judge misconstrued the law of conspiracy when he relied on that portion of the testimony of PW4 to hold that the Appellant had a case to answer on the charge of conspiracy.

?On the charge of contributing to the economic adversity of the Federal Republic of Nigeria, learned counsel contended that, in order to prove the charge, the following elements must be proved beyond reasonable doubt:
(a) That there was an increase to the economic adversity of the Federal Republic of Nigeria;
(b) That the accused contributed to the increase of the economic adversity;
(c) That there was increase of money in circulation;
(d) That the accused contributed to that increase in the money in circulation;
(e) That the increase of the money in circulation resulted in economic adversity;
(f) That the data of money in the economy has become in accurate;<br< p=””

</br<

(g) That the act of the Appellant resulted into that inaccurate data of money supply in the economy;
(h) That the monetary policy mandate of the Central Bank of Nigeria was mislead (sic); and
(i) That the acts of the Appellant mislead (sic) the monetary policy of the Central Bank of Nigeria.

The case of Aiguoreghian v. State (2004) All FWLR (pt.195) 716 at 743 paragraphs B ? D was then cited to submit that all the above elements of the charge must be proved. Learned Counsel then drew our attention to the testimonies of PW1 ? PW12 to submit that the prosecution failed to establish those ingredients beyond reasonable doubt. Furthermore, that from the totality of the evidence adduced through the prosecution witnesses, the act of stuffing of the boxes leveled against the Appellant relate to an act that had been completed before the arrival of the Appellant and other members of the briquetting panel. Learned Counsel then concluded that, on the evidence adduced by the prosecution at the trial, it will be impossible to convict the Appellant of the offence charged.

?On the allegation of failure to report, learned counsel contended that

the issues here will also affect the charge on Count 5 which allege failure of the Appellant to report on the irregularities observed during the briquetting exercise conducted on the 5/8/2018. It was thus submitted that the prosecution failed to establish any duty on the Appellant to report to the Central Bank of Nigeria nor was any document tendered which misled the policy mandate of the Central Bank of Nigeria. It was then submitted that, failure of the prosecution to tender the document that allegedly misled the CBN is fatal to their case against the Appellant. The cases of Olufeagba v. Abdur-Raheem (2010) All FWLR (pt.512) 1033 at 1074 paragraph C; Ivienagbor v. Bazuaye (1999) 7 NWLR (pt.612) 641 were cited in support.

?Learned Counsel for the Appellant went on to submit that, the evidence before the Court has established that the Appellant does not have the duty to report to his employers, i.e. the Central Bank of Nigeria. That, the duty lies with the Coordinator, Auditor and the Security Personnel. Referring to the testimonies of PW4, PW5, PW6 and PW7, learned counsel submitted that the uncontradicted evidence adduced by those prosecution witnesses

is that, the Appellant does not have any duty to report and therefore cannot be held liable to misleading the Central Bank of Nigeria in its Monetary Policy Mandate as charged in count 2 nor can he be said to have omitted facts from a document which he did not have the authority to make. That, this is made manifest in the testimony of PW5. Accordingly we were urged to hold that the prosecution did not establish the offences charged on Counts 1, 2 and 5 and to discharge the Appellant.

In response, learned counsel for the Respondent cited the case of Tongo v. C.O.P. (2007) 12 NWLR (pt.1049) 525 at 540 to contend that, the learned trial Judge was well guided by the provisions of Sections 302 and 303 of the Administration of Criminal Justice Act, 2015 (ACJA, 2015), what is required of the prosecution is to make out a prima facie case against the Appellant. Learned Counsel then cited and relied on the case of Ajidagba v. I.G.P. (1958) SCNLR 60 at 62 for the meaning of a prima facie case. The cases of Ekwenugo v. FRN (2008) 15 NWLR (pt.1111) 638; Alex v. FRN (2018) 7 NWLR (pt.1618) 228 at 240 ? 241 and Olaniyan v. State (1987) 1 NWLR (pt.48) 156 were

cited in support and to further submit that, the grounds upon which a no case submission can be made are as follows:
(a). Firstly, that there has been throughout the trial no legally admissible evidence at all against the accused person on behalf of whom the submission of no prima facie case has been made, linking him in anyway with the commission of the offence with which he has been charged, which would necessitate his being called upon for his defence.
(b). Secondly, whatever evidence that was which might have linked the accused person with the offence has been so discredited that no reasonable Court can be called upon to act on it in establishing criminal guilt in the accused person concerned; and in the case of a trial by jury, that the case ought therefore to be withdrawn from the jury and ought not to go to them for a verdict.

Learned Counsel for the Respondent then submitted that, at the stage of no case submission, the trial Court is not to express any opinion on the evidence before it. The cases of Daboh & Anor v. State (supra) at 209 and F.R.N v. Martins (2012) 14 NWLR (pt.1320) 287 at 323 were cited in support and to further submit

that, the contention of the Appellant is that, the prosecution did not lead any evidence linking him to the commission of the offences of conspiracy, contributing to the economic adversity of the Federal Republic of Nigeria and omission of material particulars with intent to defraud.

On the charge of conspiracy, learned Senior Advocate for the Respondent cited the cases of Yakubu v. State (2012) 12 NWLR (pt.1313) 131 at 142 ? 143; Mohammed v. State (1991) 5 NWLR (pt.192) 438 and Iden v. State (1994) 8 NWLR (pt.365) 719 to list the ingredients of conspiracy. Learned Counsel then defined conspiracy as the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. That to prove conspiracy, there must be consent of two or more persons to achieve an unlawful purpose or a lawful purpose by unlawful means.

?Learned Senior Counsel for the Respondent argued that, the contention of the Appellant that the prosecution did not lead any evidence to support the charge of conspiracy is based on a narrow understanding of the offence of conspiracy. That the assertion of the Appellant that he is not a member of the Ibadan

Branch of the CBN is not enough to conclude that the Appellant did not conspire with the other accused persons to commit offence. That it is obvious from the evidence on record that the Appellant, not only agreed with the 1st and 2nd accused persons to shred the newspapers instead of mutilated currency notes, but also took part in shredding the newspapers and sought to conceal it from the PW4 who had been tricked out of the briquetting room. Furthermore, that it is not disputed by the Appellant that he was a member of the briquetting panel nor has it been denied that the Appellant and other members of the panel were instructed to destroy 880 boxes of currency notes. That it is also not disputed that on the second day of the briquetting exercise, the panel discovered a box containing newspapers instead of N1,000.00 currency denominations. That, there was a meeting by some of the Defendants outside the briquetting room when the box containing newspapers was discovered. Furthermore, that there is uncontroverted evidence that it was the Appellant, the 2nd Defendant and one Chiefson Ilagha who started the destruction of the newspapers as against the currency

notes.

Learned Counsel (Silk) for the Respondent went on to submit that, from the evidence adduced by the prosecution, the Appellant did conspire with the other Defendants to destroy newspapers, the implication of which is that the money which had been treated in the statistics of the CBN as having been destroyed were not destroyed, thereby frustrating the effort of the CBN in controlling the supply of money into the Nigerian Economy. That, the absence of any physical meeting will not vitiate the establishment of the offence of conspiracy. That, the Court will easily infer conspiracy from the evidence adduced before the Court especially when there was evidence of the various parts played by the Defendants in execution of the conspiracy. The cases of Tanko v. State (2008) 16 NWLR (pt.1114) 594; Balogun v. AG; Ogun State (2001) 14 NWLR (pt.733) 331 at 353 and Onochie v. Republic (1966) 4 NSCC 73 at 74 were cited in support .

Referring to the testimony of the PW4, learned Senior Counsel contended that, it is clear that the Appellant indeed conspired with the other Defendants to destroy newspapers as against currency notes. The cases of Oduneye v. The State ?

(2001) 2 NWLR (pt.697) 311 at 329; Oyediran v. Republic (1966) 4 NSCC 252 at 257 ? 258 and Obiakor v. State (2002) 10 NWLR (pt.776) 612 at 628 were then cited to submit that, the Appellant is clearly a public officer and that he abused his office as a member of briquetting panel by destroying newspapers instead of currency notes. We were accordingly urged to discontenuance the arguments of the Appellant on the conspiracy charged.

On the charge alleging the offence of abuse office that contributed to the economic adversity of Nigeria, Learned Counsel (silk) for the Respondent contended that the ingredients of the offence included:
(a) That the Defendant is a public officer;
(b) That the Defendant must have done or carried out an act;
(c) That the act must have been done in abuse of the position the person occupies as a public officer; and
(d) That the act must have contributed to the economic adversity of the Nigerian nation.

?It was then submitted that all the above ingredients of the offence were established by the evidence adduced. That, it is not in doubt that the Appellant was at the material time, a staff of the

CBN and also a member of the CBN panel constituted to carry out the briquetting exercise. That the Appellant destroyed newspapers instead of unfit currency notes; and that the act done by the Appellant was done in abuse of his position as a public officer. It was then submitted that, there is no doubt that the destruction of the newspapers instead of the currency notes was done in contravention of the briquetting rules. Furthermore, that the act complained of contributed to the economic adversity of the Nigerian nation and which fact is supported by the testimony of PW11 in that it has led to the increase of the money in circulation thus causing inflation.

?On the charge in Count 5 that the Appellant failed to report the irregularity in the briquetting exercise, it was contended that the act is an offence prescribed by Section 438(c) of the Criminal Code Act, Cap. C38, Laws of the Federation of Nigeria, 2004. That the ingredients of the offence are:
(a) That the Defendant is either a clerk, servant, or someone employed or acting the capacity of a clerk or servant;
(b) That there must be in existence a book, document or account;
(c) That the

Defendant must have omitted a material particulars from the book, document or account; and
(d) That the omission of the material particular must have been with the intent to defraud.

Learned Senior Advocate for the Appellant then contended that, it is not in dispute that the Appellant was at the material time, a servant of the Central Bank of Nigeria. Furthermore, that there was a report and that the Appellant even admitted that he did not report the incident. It was also contended that this fact is even supported by page 270 of the Record of Appeal and Exhibit P9 which is the Extra-Judicial Statement of the Appellant.

?In reply on points of law, learned Senior Advocate for the Appellant contended that, in considering a no case submission, the Court must look out for the ingredients of the offence charged, which the trial Court failed to do. On the charge of conspiracy, learned Senior Counsel for the Appellant contended that the Respondent made heavy weather on the issue of conspiracy but neglected the evidence before the trial Court that the Appellant was neither part of the persons who went out to have a meeting after the discovery of the box

filled with papers, nor was he part of the persons who went to the treasury to change the both filled with papers. Furthermore, that the Appellant obeyed the instruction of his superior cannot translate to act of conspiracy. It was also submitted that the Appellant was charged with conspiracy to commit an act that had been concluded before the arrival of the briquetting team in Ibadan.

Learned Senior Counsel for the Appellant went on to submit that, even if the Appellant was silent where there was duty to report cannot graduate to a crime. The case of Olufunmise v. Falana (1990) 3 NWLR (pt.136) 1 at 14 was cited in support. Furthermore, that the document relied upon by the Court is speculative as the document by which the Appellant allegedly misled the CBN was not tendered. We were accordingly urged to hold that the prosecution had also failed to establish all the essential ingredients of Count 2.

?Now, I had earlier on alluded to what a no case submission is when deciding on the Preliminary Objection. At the risk of repetition but as a reminder, I wish reiterate that a no case submission means that there is no evidence on which even if the Court

believes it, it could convict. It simply means that the evidence adduced by the prosecution does not establish some of or an essential element of the offence charged. At this stage, the question whether or not the Court believes the evidence led will not arise, so also, the credibility of the witnesses. This is because at the no case submission, the trial has not been concluded and therefore, the Court should not concern itself with the credibility of witnesses or the weight to be accorded the evidence adduced. See Ekwunugo v. F.R.N. (2008) 15 NWLR (pt.1111) 630; Ikuforiji v. F.R.N.(2018) LPELR ? 43884 (SC); Fagoriola v. F.R.N.(2013) 17 NWLR (pt.1383) 322 and Olagunju v. F.R.N. (2018) LPELR 43909 (SC). Thus, in the case of Agbo & Ors v. State (2013) 11 NWLR (pt.1365) 377, My Lord Fabiyi, JSC said:
?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. The Court is only called upon to take note and rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence charged. But if there

is legally admissible evidence, however slight, the matter should proceed as there is something to look at
The Administration of Criminal Justice Act, 2015 (supra) has provided for no case submission under Section 302 and 303 thereof. Section 302 allows for raising a no case submission suo motu by the trial Court. What concerns us here is Section 303 of the ACJA, 2015 which stipulates that:
303.(3) In considering the application of the Defendant under Section 303, the Court shall, in the exercise of its discretion, have regard to whether:
(a) and essential element of the offence has been proved;
(b) there is evidence linking the Defendant with the commission of the offence with which he is charged
(c) the evidence so far led is such that no reasonable Court or tribunal would convict on it; and
(d) any other ground on which the Court may find a prima facie case has not been made out against the Defendant for him to be called upon to answer.
?This provision is, in my view, substantially a restatement of the law in earlier statutes and case law. It therefore means that, in determining whether or not a prima facie

case has been made out, the Court will have regards to the factors enumerated in Section 303 (3) (a) ? (d) of the ACJA, 2015.

Now, the Appellant was arraigned with others on a seven(7) Counts charge. Specifically the Appellant was charged under Counts 1, 2, 3 and 5 of the charge. However, he was discharged on Count 3 but was called upon to enter his defence in respect of Counts 1, 2 and 5. I shall therefore consider the three (3) heads of charge so as to see whether the trial Court was right in finding that a prima facie case has been made out against the Appellant on each of the said Counts.

?Count one (1) upon which the Appellant was charged is as follows:
?That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON, ILORI ADEKUNLE SUNDAY, KOLAWOLE BABALOLA AND FATAI ADEDOKUN YUSUF on or about 5th August, 2014 in Ibadan within the jurisdiction of this Honourable Court, conspired amongst yourselves to commit an offence, to wit: contributing to the economic adversity of the Federal Republic of Nigeria by virtue of abuse of office by destroying a box marked ?Counted Audited Dirty? filled with Newspapers in place of a box

containing N10,000,000.00 (Ten Million Naira) of N1,000.00 denomination and which activity led to the increase of money in circulation and inaccurate data of money supply in the economy thereby misleading the monetary policy mandate of the Central Bank of Nigeria and you thereby committed an offence contrary to Section 1(2)(d) of the Recovery of Public Property (Special Provision) Act, Cap. R4, Laws of the Federation of Nigeria, 2004 and punishable under Section 10(1) of the same Act.?
Section (1)(2)(d) of the Recovery of Public Property (Special Provision Act (supra) stipulates that
?1(2) Any public officer who ?
(a) ?.
(b) ?.
(c) ?.
(d) has attempted, aided, counseled, procured or conspired with any person to commit any of the offences set out in this Section,
at any time after 30 September, 1979

shall be guilty of an offence under this Act and upon conviction shall, apart from any other penalty prescribed by or pursuant to any other provision of this Act, forfeit the assets, whether movable or immovable property connected with the commission of the offence to the Federal Government.?

It should be noted that, and for the purpose of this appeal, the offence charged on this count is conspiracy to commit the offence of contributing to the economic adversity of the Federal Republic of Nigeria. The law on conspiracy has long been settled by a long line of decided cases. It is to the effect that, conspiracy is the agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means. The commission of the offence for which the conspiracy is hatched is not the gist of the offence. The agreement to commit the offence is what the law punishes; therefore, even where the substantive offence is not actualized, the agreement to commit same may be penalized once there are facts which establish the conspiracy. See Kaza v. State (2008) 7 NWLR (pt.1085) 125 at 176; Yakubu v. State (2014) 8 NWLR (pt.1408) 111 at 123 ? 124

and Ogugu v. State (1990) 2 NWLR (pt.134) 539 at 549.

It should be noted that the offence of conspiracy is one that is always difficult to prove by direct evidence. The Courts have therefore resorted to drawing inferences from the acts of the parties which are directed and focused at the actualization of their common criminal intentions. See Okosun v. A.G; Aituma v. State (2007) 16 NWLR (pt.1060) 378 at 403. In making such inferences, it should be noted that conspiracy can be formed in any of the following ways:
(a) The conspirators may directly communicate with each other at a particular place and time in order to enter into the agreement to commit the desired criminal purpose.
(b) There may be one person who acts as the center or hub around whom all the other conspirators revolve.
(c) The conspiracy may be like a chain, with one person communicating with A and from A to B and B communicates to C and so on.
The bottom line is that, conspiracy is established once it becomes clear to the Court that the conspirators knew of the existence and purpose of the conspiracy. See Afolabi v. State (2013) 6 ? 7 S.C. (pt.II) 1 at 33; Aje v.State

(2006) 8 NWLR (pt.982) 345 and Adebayo v. State (1987) 2 NWLR (pt.57) 468 at 480.

In determining the issue of conspiracy here, I will not lose sight of the fact that the ruling appealed against is on a no case submission. I have stated the law, even though briefly, on a submission that the Defendant has no case to answer. I should also remind myself that when ruling on a no case submission, particularly where the submission is overruled, the Court is enjoined to only note the facts or evidence, without evaluating or expressing an opinion thereon. See Emedo & Ors v. State (2002)15 NWLR (pt.789) 196; Bello v. State (1966) LPELR ? 25291 (SC); Ubanatu v. C.O.P. (2000) 2 NWLR (pt.643) 115 and Oko v. State (2017) LPELR ? 42267 (SC). The learned trial Judge kept to his bounds when he alluded to the testimony of PW4 to hold that the charge of conspiracy can be sustained and therefore the Appellant has a case to answer on the charge of conspiracy. I think the findings of the learned trial Judge is well founded.

?The charge on Count One (1) against the Appellant is that, he and the other Defendants conspired to contribute to the economic

adversity of Nigeria when they destroyed a box marked ?Counted Audited Dirty? money containing newspapers instead of a box containing N10,000,000.00 of N1,000.00 denomination. The evidence also shows that the box of ?Counted Audited Dirty? money was to be shredded in a briquetting exercise by a panel of which the Appellant was a member. Based on the testimony of PW4 which tended to link the Appellant with the shredding of the newspapers in place of the box containing ?Counted Audited Dirty? money, the Appellant is certainly expected to explain the role he played in the whole episode. On that note, it is my view, which I hold that the learned trial Judge was right when he held that a prima facie case of conspiracy had been established against the Appellant.

?The charge against the Appellant on Count Two (2) reads thus:
?That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON, ILORI ADEKUNLE SUNDAY, KOLAWOLE BABALOLA and FATAI ADEDOKUN YUSUF on or about 5th August, 2014 in Ibadan within the jurisdiction of this Honourable Court, have by virtue of abuse of your office, being employees of Central Bank of Nigeria,

contributed to the economic adversity of the Federal Republic of Nigeria when you destroyed a box marked ?Counted Audited Dirty? filled with Newspapers in place of a box containing N10,000,000=00 (Ten Million Naira) of N1,000.00 denomination and which activity led to the increase of money in circulation and inaccurate data of money supply in the economy thereby misleading the monetary policy mandate of the Central Bank of Nigeria and you thereby committed an offence punishable under Section 1(2)(b) and Section 10(1) of the Recovery of Public Property (Special Provision) Act, Cap. R4, Laws of the Federation of Nigeria, 2004.?

?It would be seen that the offence charged on Count 2 has been created by Section 1(2)(b) of the Recovery of Public Property (Special Provision) Act (supra). It is my view that, for the prosecution to establish an offence under Section 1(2)(b) of the Recovery of Public Property (Special Provisions) Act (supra) they must lead evidence to prove:
(a) That the accused or Defendant is a public officer;
(b) That he abused his office as such public officer; and
(c) That the act of the Defendant contributed to

the economic adversity of the Federal Republic of Nigeria.

In determining the no case submission on Count 2, the learned trial Judge adopted his findings on Count One (1) in respect of his findings on the no case submissions of the 1st and 2nd Defendants. The evidence led established that the Appellant was an employee of the Central Bank of Nigeria, thus a public servant within the con of Section 1(4) of the Recovery of Public Property (Special Provisions) Act (supra). There is also evidence that he was mandated in the course of his employment to join other officers at the Ibadan Branch of the Central Bank of Nigeria to join a panel to carry out a briquetting exercise. There is also prima facie evidence that newspapers were shredded instead of the box of ?Counted Audited Dirty? money. Here again, the learned trial Judge was therefore right when he found that a prima facie case had been established on Count 2.

The other Count upon which a prima facie case was held to have been established against the Appellant is Count Five (5). The charge here read as follows:
?That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHSON and ILORI

ADEKUNLE SUNDAY on or about 5th August, 2014 in Ibadan within the jurisdiction of this Honourable Court, with intent to defraud, was privy to omitting material particulars from a document to wit: the report of your briquetting exercise that took place at Central Bank Nigeria, Ibadan branch which you submitted to Central Bank of Nigeria headquarters Abuja, to the effect that the briquetting exercise was successful without any abnormality when indeed a box stuffed with newspapers as against N10,000,000.00 (Ten Million Naira) notes was discovered during your briquetting exercise on the 5th of September, 2014 and you thereby committed an offence punishable under Section 438(c) of the Criminal Code Act, Cap. C38, Laws of the Federation of Nigeria, 2004.?

?Now, Section 438(c) of the Criminal Code (supra) stipulates that:
?438. Any person who, being a clerk or servant, or being employed or acting in the capacity of a clerk or servant, does any of the following acts with intent to defraud-
(a)

?..
(b) ?..
(c) omits, or is privy to omitting, any material particular from any such book, document, or account;
is guilty of a felony and is liable to imprisonment for seven years.
For the prosecution to succeed in proving a charge under this Section of the Criminal Code, it must adduce evidence to show:
(a) That the accused person is either a clerk or servant; employed or acting in the capacity of a clerk or servant;
(b) That he omitted, or was privy to the omission of a material particular from any book, document, or account.
(c) That the omission was with intent to defraud.

?The charge here is that the Appellant was privy to the omission to state in a report of the briquetting exercise that the exercise encountered some difficulties. In other words, that he was privy to the omission to

state in the report that newspapers were shredded instead of ?Counted Audited Dirty? money in the amount of N10,000,000.00. Here, the learned trial Judge relied on the Extra-Judicial Statement of the Appellant made to E.F.F.C; which statement was tendered and admitted in evidence as Exhibit 9 to hold that:
?Exhibit P1 clearly lay down the rules of briquetting exercise which the 3rd Defendant is familiar with following these pieces of evidence, the 3rd Defendant has some explanation to give in relation to the 5th Count as I find and hold that a prima facie case has been made against him by the prosecution.?

?Surely, the evidence on record reveals that the Appellant was a member of the briquetting team. That at the conclusion of the briquetting exercise; a report was to be and was issued. There is also evidence that newspapers were shredded instead of ?Counted Audit Dirty? money in the amount of N10,000,000.00. Since there is evidence that the fact of shredding of newspapers instead of ?Counted Audited Dirty? money was not indicated in the report, the Appellant being a member of the briquetting team and

therefore privy to such report, has some explanation to give in respect thereof. The learned trial Judge was also right when he held that a prima facie case has been made out against the Appellant on Count 5.

On the whole therefore, it would be seen that the two issues formulated have been resolved against the Appellant. The Appeal therefore has failed and is hereby dismissed. Consequently, the Ruling of the Federal High Court, Ibadan Division delivered on the 22/5/2018 in Charge No: FHC/IB/36C/2015 is hereby affirmed.

NONYEREM OKORONKWO, J.C.A.: I have carefully read the lead judgment of my learned brother Haruna Simon Tsammani JCA on the interesting subject of “Submission of No Case” in Criminal Procedure as it relates to this appeal. One guiding light in the field is the exposition of the Queen’s Bench Divisional Court given in (1962) 1 WLR 227 where the following elucidation on the subject was given thus:
“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 safely convict upon it. “Apart from these two situations a tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If however a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.”
?As noted in the lead judgment, the essence of the preliminary threshold issue is 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. The Court is only called upon to take note and rule accordingly that there is before the Court no legally admissible evidence linking the accused person

With the commission of the offence charged But if there is legally admissible evidence, however slight, the matter should proceed as there is something to look at… ”
Per Fabiyi JSC in Agbo & Ors vs State (2013) 11 NWLR (pt.1365)377

In the case under appeal, there was evidence that appellant was member of briquetting team that was & destroy lots of disused currency notes but substituted such currency notes’ with newspaper cutting.

However slight, this was evidence which if believed can justify an inference and conviction for conspiracy and completely removes the case from the realm of “no case submission”.
I therefore agree with my learned brother Tsammani JCA that the appeal is not made out and must be dismissed.

?ABUBAKAR MAHMUD TALBA, J.C.A.: This is an appeal against the Ruling of the Federal High Court, Ibadan Division delivered on the 22nd day of May, 2018. The appeal arises from the Ruling in respect of a no case submission made by the Appellant. The learned trial Judge overruled the no case submission.
?I have had the privilege of reading in draft the Judgment of my learned

brother Haruna Simon Tsammani JCA and I agree with the reasoning and conclusion made therein.

This is no doubt an interlocutory appeal. And a critical examination of grounds 1, 2 and 3 of the grounds of appeal reveals that they are grounds of law and therefore appeal is as of right by virtue of Section 241 (1) (b) of the constitution of the FRN 1999 (as amended).

Section 303 of the ACJA, 2015 allows the defendant to raise a no case submission. And in considering the application of the defendant under Section 303, the court shall in the exercise of its discretion have regard toSection 303 (3). The sum total of what the law require is that a no case submission can be rightly raised and uphold were:
(a) When there has been no evidence to prove an essential element of the offence charged or
(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 council safely convict on it.

In the determination of a no case submission the trial Court is not called upon to evaluate and express an opinion on the evidence before the Court. The duty of

the Court is to determine whether there is any legally admissible evidence linking the accused person with the commission of the offence charged. In other words, whether or not a prima facia case has been made out which would require the Court to call on the accused person to offer an explanation. See Fagoriola v FRN (2013) 17 NWLR (pt. 1383) 322 and Agbo v State (2013) 11 NWLR (pt. 1365) 377.

Upon a calm view of the evidence before the trial Court the learned trial Judge was right in finding that a prima facia case has been made out against the Appellant on counts 1, 2 and 5. The appeal lacks merit and same is accordingly dismissed. The Ruling of the Federal High Court Ibadan Division delivered on the 22nd day of May, 2018 in charge No: FHC/IB/36C/2015 is hereby affirmed.

Appearances:

Festus Adesiyan, Esq. with him, Feyisara Idowu, Esq. and Tochukwu NkikoFor Appellant(s)

Adebisi Adeniyi, Esq.For Respondent(s)

Appearances

Festus Adesiyan, Esq. with him, Feyisara Idowu, Esq. and Tochukwu NkikoFor Appellant

AND

Adebisi Adeniyi, Esq.For Respondent