MICHAEL EMEKA EKWUNIFE v. FEDERAL REPUBLIC OF NIGERIA & ANOR
(2018)LCN/12460(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of June, 2018
CA/E/31C/2018
RATIO
COURT AND PROCEDURE: WHERE A NO CASE SUBMISSION IS MADE
“It is trite law that the state when a no case submission is made, the trial Court is not called upon to express an opinion on the evidence before it. The credibility of the witnesses is not in issue at this state. All that the Court is required to do is to examine whether or not there is any legally admissible evidence linking the accused with the commission of the offence with which he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the record. If it does not, the submission is bound to fail. See the case of C. O. P. vs. Amuta (supra) per K. M. O. kereke Ekun JSC at pages 203 -204.” PER TOM SHAIBU YAKUBU, J.C.A.
INTERPRETATION: MEANING OF PRIMA FACIE
“In Ajibade v. Inspector General of Police (1958) FSC 5 at page 6, his Lordship, Abbot F. J., had this to say with respect to the definition of the phrase, ‘prima facie case’, to wit:
‘We have been at some pains to find a definition of the term ‘prima facie case’. The term so far as we can find has not been defined either in the English or, in the Nigerian Courts. In an Indian case, however, Sher Singh vs. Jitendranathsen (1931) 1 L. R. 50, Calc. 275, we find the following dicta:
‘What is meant by a prima facie (case)? It only means that there is a ground for proceeding…. But, prima facie case is not the same as proof which comes later when the Court has to find whether the accused is guilty or not guilty …'” PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
MICHAEL EMEKA EKWUNIFE Appellant(s)
AND
1. FEDERAL REPUBLIC OF NIGERIA
2. PROFESSOR FIDELIS UZOCHUKWU OKAFOR Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):
The Appellant was the Bursar while the 2nd Respondent alongside with whom he was charged in the case now on appeal was the Provost – Interim at the Nwafor Orizu College of Education, Nsugbe in Anambra State. They were arraigned by the 1st respondent, for prosecution at the Federal High Court, sitting at Awka, Anambra State, for the offences of conspiracy to obtain money by false pretence and obtaining money by false pretence, contrary to Sections 8(a) and 1(1) of the Advance Fee Fraud and Other Related Offences Act, 2006. The information filed by the 1st respondent against the defendants contains eight (8) counts, detailing the various amounts of money allegedly withdrawn by the appellant from the Nwafor Orizu College of Education, Nsugbe, Anambra State, to settle the hotel bills of the 2nd Respondent, as the Provost – Interim of the aforesaid Nwafor Orizu College of Education, Nsugbe, Anambra State between November, 2008 and March 2011.
The prosecution called four witnesses and tendered into evidence some eleven documentary exhibits. At the close of the prosecution’s case on 27th September, 2017; the appellant indicated his intention to make a no case submission. Consequently, all the parties at the trial, filed and exchanged their respective written addresses which were later adopted by learned counsel for each of them. The learned trial judge, in his ruling, which was rendered on 12th March, 2018, over-ruled the no case submission, by the appellant who was then called upon to enter his defence, if he had any.
This appeal which is, anchored on four grounds is against the ruling of the learned trial judge, rendered on 12th March, 2018.
The appellant, in order to activate the prosecution of the appeal, filed the appellant’s brief of argument on 5th April, 2018. The 1st respondent’s brief of argument dated 10th April, 2018 was filed on 11th April, 2018. The 2nd respondent did not file a brief of argument. The appellant’s reply brief of argument was dated and filed on 13th April, 2018.
In the appellant’s brief of argument, settled by C. B. Anyigbo, Esq., two issues were nominated therein, for the determination of the appeal. They are, to wit:
1. Whether the conclusion of the learned trial judge that there was legally admissible evidence linking the Appellant to the commission of the offences charged without stating such evidence is manifestly unsupportable and occasioned a miscarriage of justice. Grounds I and III.
2. Whether the learned trial judge was wrong when he overruled the Appellant’s no case submission on the premise that there were legally admissible evidence linking the Appellant with the commission of the offence charged. Grounds II and IV.
Marshal – Umukoro Onome, Esq., who settled the 1st respondent’s brief of argument also identified two issues for the resolution of the appeal. They are:
a) Whether or not the manner and style in which the lower Court arrived at its decision in overruling the no case submission has occasioned a miscarriage of justice to the appellant?
b) Whether from the totality of evidence led by the prosecution before the trial Court, there is legally admissible evidence linking the appellant with the commission of the offences charged?
I endorse and adopt the above listed two issues nominated by appellant’s counsel in my consideration and determination of the appeal. I shall consider and resolve the two issues together.
The contentions of the appellant are that the ruling of the learned trial judge, rendered on 12th March, 2018 is bereft of the attributes of a good decision, hence the refusal to uphold the no case submission ventilated by the appellant, was unjustifiable. Although the learned appellant’s counsel conceded that a decision on a no case submission needed not to be laced with details as it would be in a final judgment, nevertheless, the decision of the learned trial judge, in question ought to have shown that he indeed examined the evidence proffered by the prosecution witnesses, to the effect that the essential ingredients of the offences charged against the appellant had been established. Reliance was placed on Odido v. The State (1995) 1 NWLR (pt. 369) 88 at 116 – 117 where this Court stated what was expected of a trial judge, in his ruling on a no case submission. Reference was also made to the decision of this Court in Grand Systems Petroleum Ltd v. Access Bank Plc (2015) 3 NWLR (pt. 1446) 317 at 347 – 348, relying on the Supreme Court decision in Ishola v. Folorunsho (2010) 13 NWLR (pt. 1210) 169 at 195, which reiterated and itemised the attributes of a good decision, and to the effect that ?a good judgment must contain some well-known constituent parts.
Furthermore, it is the appellant’s contention that since the learned trial judge did not mention the pieces of evidence proffered by the PW1 to PW4 vis-a-vis the elements or particulars of the offences charged against the appellant, his decision is predicated on no foundation. He referred to E. F. C. C. v. Akingbola (2015) 14 NWLR (pt. 1478) 1 at 36; Morka v. The State (1998) 2 NWLR (pt. 537) 304 and submitted that it is not enough for a trial judge to find sanctuary in such expressions as ‘I believe or disbelieve’ or ‘I am satisfied’, without a proper evaluation of the evidence placed before him.
Learned appellant’s counsel furthermore, submitted to the effect that if the learned trial judge had properly evaluated the entries and transactions in Exhibit 10 which represented the Statement of Account of the Nwafor Orizu College of Education, Nsugbe, maintained with the Access Bank, the said Exhibit 10 did not support any of the offences charged in counts 2, 3, 4, 5, 6, 7 and 8 against the appellant. He also submitted that the pieces of evidence proffered by the PW2 and PW3 being investigators were hearsay evidence and were discredited under cross-examination. References were made to the authorities of Aituma v. The State (2006) 10 NWLR (pt. 989) 452 at 472, Onagoruwa v. The State (1993) 7 NWLR (pt. 3030 40 at 82, Ibeziako v. C. O. P. (1963) 1 All NLR 61 at 68 – 69; Akpan v. The State (1986) 5 S. C. 186 at 204 – 205 & 207 all to the effect that a no case submission must be upheld where there is no credible evidence of the essential ingredients of the offences charged against a defendant, hence no prima facie case, could have been made against him, calling for his entering his defence. He referred to the authority of Osuagwu v. The State (2016) LPELR 40836 (SC) at pages 36 – 37, that where the defendant refuses to utter a word in his defence, if the ingredients of the offence for which he was charged were not proved beyond reasonable doubt, the prosecution will still fail.
Arguing per contra, 1st respondent’s learned counsel, submitted that the learned trial judge needed not to have gone into a lengthy ruling wherein he would have evaluated the pieces of evidence proffered by the prosecution witnesses, in order to determine whether there was sufficient evidence to ground a conviction of the appellant. He placed reliance on Emeka Ekwunugo v. FRN (2008) LPELR 1105 (SC); Oko v. The State (2017) LPELR 42267 (SC). He submitted that the learned trial judge, having perused the available oral and documentary evidence placed before him by the prosecution, was satisfied that there is legally admissible evidence linking the appellant with the commission of the offences charged against him. Hence, he needed not to have done more in evaluating those pieces of evidence because at that stage, what was important was whether a prima facie case had been made out against the appellant. Furthermore, he referred to the authorities of the Supreme Court in Adama v. The State (2017) LPELR 42266 (SC); Emedo & Ors v. The State (2002) LPELR 1123 (SC) and Atoyebi v. FRN (2017) LPELR 43831 (SC) all to the effect that at the stage of rendering a ruling on a no case submission, a trial Court must be wary of venturing into evaluating and weighing the evidence placed before him in order to know or decide as to which witness was telling the truth, hence the Court ought not to conclude at that stage that the evidence adduced by the prosecution was unreliable.
Learned 1st respondent’s counsel further submitted that the ingredients or elements required to prove a charge bothering on obtaining by false pretences as well laid out in Rev. Victor Mukoro v. Federal Republic of Nigeria (2015) LPELR 24439 (CA), were established in the pieces of evidence proffered by PW1 vis-a-vis Exhibits 9, 9a – u, the payment vouchers made out in the name of the appellant covering several months or years of payment of hotel bills of the 2nd respondent. He contended that the findings and discoveries of the PW2 – an investigating officer of the Economic and Financial Crimes Commission, who went to the Tourist Garden Hotel, Awka were to the effect that although the appellant withdrew money from the Nwafor Orizu College of Education, Nsugbe for the hotel bills of the 2nd respondent and claimed that the latter lodged in that hotel from 2008 – 2011, there was no record that the latter actually lodged in that hotel. He argued in response to the appellant’s contention that the evidence of PW2 was hearsay and submitted that the PW2 and PW3 being investigating officers, gave evidence of their findings and so they did not give hearsay evidence. He placed reliance on Lekan Olaoye v. The State (2018) LPELR 43601 (SC) at pp. 23 – 24 and 42 – 43; Ibrahim Kamila v. The State (2018) LPELR 43603 (SC); Ijeoma Anyasodor v. The State (2018) LPELR 43720 (SC) at pp. 20 – 21.
Learned 1st respondent’s counsel furthermore submitted that the case of the prosecution against the appellant is simply that the appellant withdrew various sums of money from the Access Bank account of the Nwafor Orizu College of Education, Nsugbe for the payment of the 2nd respondent’s hotel bills on the pretence that the latter lodged in the Tourist Garden Hotel, Awka between 2008 and 2011 when infact the said 2nd respondent was never a guest in the said hotel for the period in question. Hence the appellant needed to offer an explanation in respect of the charges against him.
Responding to the appellant’s contention that the withdrawals made from the account of the Nwafor Orizu College of Education, Nsugbe, at the Access Bank, did not match the dates on the various counts in the charges against the appellant, he submitted that in the usage of the word ‘on or about’, in a criminal charge, it is not necessary to prove the precise date that the alleged offence was committed. He placed reliance on Akpa v. The State (2007) 2 NWLR (pt. 1019) 500 at 522 – 523. He contended that by virtue of Exhibit 10, there were withdrawals of sums of money by the appellant, from the Access Bank account of the Nwafor Orizu College of Education, Nsugbe, ostensibly for the payment of the hotel bills of the 2nd respondent which established a link between the appellant and the 2nd respondent and the offences charged against them.
Resolution:
Section 302 of the Administration of Criminal Justice Act, 2015, provides inter alia:
‘The Court may on its own motion or on application by the defendant, after hearing the evidence for the prosecution, where it considers that the evidence against the defendant or any of the several defendants is not sufficient to justify the continuation of the trial, record a finding of not guilty in respect of the defendant without calling on him or them to enter his or their defence and the defendant shall accordingly be discharged and the Court shall then call on the remaining defendant, if any, to enter his defence.’
The above statutory provision is the foundation for the activation of the no case submission by the appellant at the Court below. The phrase ‘no case submission’ postulates that there is no legally sufficient evidence proffered by the prosecution which would necessitate or warrant the continuation of the criminal case against a defendant. In other words, that at the end of the presentation of evidence on behalf of the prosecution, there is lack of a legally sufficient evidentiary basis for a reasonable tribunal to convict the defendant. Therefore, the Court would be called upon by the defendant for his discharge of the charges against him at that stage, hence he needed not to be called upon to enter his defence, because the evidence proffered by the prosecution had not linked him with the offences charged against him. Furthermore, it could also mean that the evidence proffered by the prosecution had been so battered and discredited under cross-examination that no reasonable tribunal/Court can act upon it to establish the guilt of the defendant and thereupon convict him. So, what is the trial Court such as the Court below, faced with a no case submission at the end of the prosecution’s case to consider and determine at that stage?
The locus classicus on this matter is Ibeziako v. Commissioner of Police (1963) 1 All NLR 61 to the effect that the consideration of the Court is threefold, namely:
1) Whether an essential ingredient of the offence has or has not been so proved;
2) Whether the evidence of the prosecution witnesses have been so discredited and rendered unreliable by cross-examination that it will be unsafe to convict on such evidence;
3) Whether the evidence so far led is such that a reasonable tribunal/Court would convict on it, in which case there is a case to answer.
Further see Ajisogun v. The State (1998) 13 NWLR (pt. 581) 205 at 262; Aituma v. The State (2007) 5 NWLR (pt. 1028) 466.
Once the Court has satisfied itself upon a consideration of the threefold requirements above listed and comes to the conclusion that there is a case for the defendant to answer, it means that there is a ‘prima facie’ case made out by the prosecution, for the defendant to answer and he would need to enter his defence thereto. Consequently, the Court would rule that the no case submission ventilated by the appellant, was not available to him.
It is expedient, to define the expression or phrase, ‘prima facie’ There is no dearth of the definition of it. For example, in Ubanatu v. Commissioner of Police (2000) FWLR (pt. 1) 138 at pages 150 – 152, the Supreme Court, per Ogwuegbu, JSC stated thus:
‘… The Courts and authors have defined it in various ways. It is defined in Osborne’s concise Law Dictionary, 8th Edition by Rutherford and Bone at page 259 as:
‘A case in which there is evidence which will suffice to support the allegation made in it, and which will stand unless there is evidence to rebut the allegation. When a case is being heard in Court, the party on whom the burden of proof rests must make out a prima facie case, otherwise the other party will be able to submit that there is no case to answer, and if he is successful, the case will be dismissed.’
In Ajibade v. Inspector General of Police (1958) FSC 5 at page 6, his Lordship, Abbot F. J., had this to say with respect to the definition of the phrase, ‘prima facie case’, to wit:
‘We have been at some pains to find a definition of the term ‘prima facie case’. The term so far as we can find has not been defined either in the English or, in the Nigerian Courts. In an Indian case, however, Sher Singh vs. Jitendranathsen (1931) 1 L. R. 50, Calc. 275, we find the following dicta:
‘What is meant by a prima facie (case)? It only means that there is a ground for proceeding…. But, prima facie case is not the same as proof which comes later when the Court has to find whether the accused is guilty or not guilty …’
The evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused’ (per Lord Williams, J.)
In Duru vs. Nwosu (1989) 1 NWLR(pt. 113) 24 at 43 Nnamani, JSC, said:
‘It seems to me the simplest definition is that which say that ‘there is ground for proceeding.’ In other word, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it, suggests that the evidence produced so far indicates that there is something worth looking at.’
And more recently, in Rev. Fr. (Dr.) E. C. Obiorah v. Federal Republic of Nigeria (2016) 6 C. A. R. 219 at 246 – 247; (2016) LPELR 40965 (CA) at pages 36 – 37, this Court ventured thus:
The term ‘prima facie’, defined by Bryan A. Garner, Editor in Chief of BLACK LAW DICTIONARY, 8th Edition, at page 1228, means: ‘Sufficient to establish a fact or raise a presumption unless disproved or rebutted…’
Furthermore, a ‘prima facie case’ is defined at same page 1228 of BLACK’S LAW DICTIONARY, 8th Edition, to mean:
1. The establishment of a legally required rebuttable presumption.
2. A party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favour.
The same phrase, ‘prima facie case’ was judicially defined by this Court in Grange v. Federal Republic of Nigeria (2010) 7 N.W.L.R. (pt. 1192) 135 at 104 – 165, thus:
‘A prima facie case in a criminal trial in a sense, only means that there is a ground for proceeding with the trial. At that stage, whether the evidence is sufficient to ground a conviction, is not the issue. When a Court states that a prima facie case has been made, or that the evidence disclose a prima facie case, it means that the evidence is such that if it is uncontradicted and if believed, is sufficient to prove the case against the accused.’
Further see: Mohammed Sani Abacha v. The State (2002) LPELR 16 (SC) at pp. 21-22; Senator Nicholas Y. Ugbane v. Federal Republic of Nigeria & Ors (2010) LPELR 4945 (CA); Akpan v. Federal Republic of Nigeria (2012) 1 NWLR (pt. 1281) 403 at 420. The reverse side of the above statement of the law with respect to a prima facie case, is that where an accused is not in any way linked with the charge against him, from the statements of potential prosecution witnesses or proofs of evidence, the charge against such an accused person, is liable to be quashed. per Yakubu, JCA.
Now, to the instant case. The learned trial judge in his ruling on the appellant’s no case submission at the end of the prosecution’s case, after stating the offences alleged against the appellant and the fact that the prosecution called four witnesses PW1 – PW4 to prove the charges laid against the appellant and the exhibits tendered into evidence by the prosecution, rehased the submissions of counsel for the parties. Thereafter, at page 346 of the record of appeal, his Lordship re-stated the law on the requirements of a no case submission which culminated in his decision to over-rule the appellant’s no case submission. This is what he said:
‘It is now settled by a long line of judicial authorities since Ibeziako vs. C. O. P. (1963) 1 All NLR 61 that a submission of no case to answer may be properly made and upheld in the following circumstances:-
1. When there has been no evidence to prove an essential element in the alleged offence directly, circumstantially or inferentially.
2. When the evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal can safely convict on it. See the case of C. O. P. vs. Amuta (2017) NSCQLR vol. 69 part 1 per K. B. Akaahs at page 189.
It is trite law that the state when a no case submission is made, the trial Court is not called upon to express an opinion on the evidence before it. The credibility of the witnesses is not in issue at this state. All that the Court is required to do is to examine whether or not there is any legally admissible evidence linking the accused with the commission of the offence with which he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the record. If it does not, the submission is bound to fail. See the case of C. O. P. vs. Amuta (supra) per K. M. O. kereke Ekun JSC at pages 203 -204.
After careful perusal of the available evidence before this Court especially the testimonies of PW1 to PW4 and Exhibits, I am of the humble opinion that there is legally admissible evidence linking the defendants with the commission of the offences charged. I agreed with the submissions of the prosecution. The said submissions of no case has no merit and it hereby overruled. I called on the defendant to enter their defence, if any this is my decision.
The appellant’s learned counsel vigorously submitted that the ruling of the learned trial judge on the appellant’s no case submission, is bereft of depth of reasoning and analysis of the prosecution’s case. In other words, that the learned trial judge ought to have evaluated the pieces of evidence placed before him and demonstrated in his ruling how those pieces of evidence linked the appellant with the offences charged against him. Reliance was heavily placed on the decision of this Court in Odido v. The State (1995) 1 NWLR (pt. 369) 88 at 116 – 117 per Akintan, JCA (as he then was) where his Lordship stated thus:
‘It is mandatory on a trial judge, before whom a no case submission is made, to examine the evidence led by the prosecution at the close of the prosecution case with a view to ensuring that evidence has been led to establish all the essential ingredients of the charge preferred against the accused person standing trial before him. If so, then the submission must be up-held. It is out of place to call on the accused person to ?come and clear certain issues or points? of which the Court probably had some doubts. Our system of criminal adjudication does not permit on calling on an accused person to testify at his trial since he is presumed to be completely innocent until he is proved otherwise by the prosecution who is his accuser.
Thus at the close of the prosecution’s case in the instant case, the prosecution failed to prove an essential ingredient of the charge preferred against the appellants, to wit: that the cause of death of the deceased could be ascribed to the acts of the appellant. At that point, they were immediately entitled to their acquittal.’
The above re-statement of the law by his Lordship, Akintan, JCA (as he then was) clearly still represents the law. In Olawole Ajiboye & Anor v. The State (1995) LPELR ? 300 (SC), the Supreme Court per Iguh, JSC at page 16 thereof held that:
‘What has to be considered in a no case submission is not whether the evidence against the accused person is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring at least some explanation from the accused.’
Interestingly, in Emeka Ekwunugo v. Federal Republic of Nigeria (2008) LPELR 1105 (SC) his Lordship, Akintan, JSC who rendered the lead judgment, had this to say at page 7 of the report, to wit:
‘The question whether or not the Court believes the evidence led does not arise at that stage of the proceedings. The credibility of the witnesses also does not arise at that stage. This is because the trial of the case was at that stage not yet concluded. This is therefore the reason why the Court should not concern itself with the credibility of witnesses or the weight to be attached to the evidence, even if they are accomplices.’
I am of the considered opinion that against the backdrop of the decisions of this Court in Odido v. The State (supra) and of the Supreme Court in Ajiboye & Anor v. The State (supra) and Emeka Ekwunugo v. Federal Republic of Nigeria (supra), a trial Court in his ruling on a no case submission in his consideration of the prosecution?s case must be wary in delving into determining the question of the credibility of the witnesses who had given evidence, at that stage. Therefore, he must not concern himself with the evaluation of their pieces of evidence in order to attach any weight to them. The obligatory duty on the Court at that stage is not to find if there is sufficient evidence to justify the conviction of the defendant/accused person, but to ascertain from the pieces of evidence placed before him by the prosecution, whether a prima facie case had been made out against the defendant, who may wish to offer some explanation in respect of the allegation against him. Hence, the trial judge is not expected to do a fine-tooth comb evaluation and analysis, suffused with details, such as a from top to bottom or from top to toe evaluation of the pieces of evidence placed before him, at that stage, as he could do and bring out a finesse in a final judgment. He is not even expected to make any observation on the facts placed before him. Emedo & Ors v. The State (2002) LPELR 1123 (SC); Adama v. The State (2017) LPELR 42266 (SC); Atoyebi v. Federal Republic of Nigeria (2017) LPELR 43831 (SC).
In the circumstances of the instant case, I find myself unable to agree with the contentions of the appellant’s learned counsel, to the effect that the ruling of the learned trial judge was lacking in depth of analysis and evaluation of the evidence placed before him. His Lordship, having stated the allegations against the appellant and the relevant law and principle guiding a no case submission, came to the decision that upon his perusal of the pieces of evidence proffered by PW1 to PW4 and the documentary exhibits tendered into evidence by the prosecution, he was satisfied that the appellant has a case to answer and over-ruled the no case submission. To my mind, the ruling of the learned trial judge, answered to the attributes of a good decision, as far as a ruling on a no case submission, is concerned. At that stage, it was better to say less than to unwittingly say too much and dabble into deciding the case as if he was rendering a final judgment on the case.
I have myself perused the pieces of evidence proffered by the PW1 to PW4 and the documentary exhibits tendered into evidence by the prosecution against the appellant. I understand the case of the prosecution against the appellant to the effect that although he withdrew large sums of money from the Nwafor Orizu College of Education, Nsugbe for the hotel bills of the 2nd respondent, then Provost – Interim of that institution, and that he allegedly expended the said sums of money in paying the hotel bills at the Tourist Garden Hotel Awka, for the 2nd respondent, however the latter actually did not lodge in the said hotel. And if that is so, what did he do with the alleged sums of money he withdrew from the above named institution? Or better still, where are the sums of money allegedly withdrawn by the appellant from the Nwafor Orizu College of Education, Nsugbe, for the hotel bills accommodation of the 2nd respondent, when he served as the Provost – Interim of the said institution from 2008 to 2011 Or, was it that he never withdrew the alleged sums of money from the aforesaid institution, at all? And in the circumstances, the appellant would have no explanations to offer against the allegations against him.
I am mindful of the dicta of my Lord, C. C. Nweze, JSC in Osuagwu v. The State (2016) LPELR – 40836 (SC) at pages 36 – 37, to the effect that:
‘The Lower Court made heavy weather of the fact that the appellant did not testify but opted to make a No Case Submission. This is non-sequitur. Unarguably, the prosecution may still fail if the accused person does not utter a word in his defence if the ingredients of the offence are not proved beyond reasonable doubt. Yongo v. C. O. P. (1992) 8 NWLR (pt. 257) 36; (1992) 4 SCNJ 113; Alor v. The State (1997) 4 NWLR (pt. 501); Kim v. The State (1992) 4 NWLR (pt. 233) 17; Woomington v. DPP (1935) AC 462; Igabele v. The State (2006) 6 NWLR (pt. 975) 100; Ikaria v. The State (2012) LPELR ? 15533 (SC). This is an offshoot of the prescription that in criminal cases, the burden of proof remains on the prosecution throughout and does not shift to the accused person, except in a few limited circumstances such as where an accused person raise a defence of insanity, The State v. Emine (1992) 7 NWLR (pt. 256) 658; Ogundiyan v. The State (1991) 3 NWLR (pt. 181) 519; (1991) 4 SCNJ 44; Alonge v. IGP (1959) 4 FSC 203; (1959) SCNLR 516. This notion of the prosecution’s burden derives from our accusatorial criminal justice system. Under it, in contradistinction to the inquisitorial system, it is anathematic to expect an accused person to purge himself of guilt. This must be so since the fundamental law of the country, the Constitution, (Section 36(5) thereof), avails him of the presumption of innocence until proven otherwise, Uso v. C. O. P. (1972) NSCC 631; Kinnami v. Bauchi Native Authority (1957) NRNLR 42, approvingly, adopted in Ani & Anor v. The State (2009) LPELR 488 (SC) 14 – 15, D – E.
This is, actually, a fundamental principle of most commonwealth penal laws often couched in the ancient maxim in dubio pro re-a principle which has been interpreted as imposing the burden of proving the guilt of an accused person on the prosecution, Obiakor v. The State (2002) 10 NWLR (p. 776) 612; Bello v. The State (2007) 10 NWLR (pt. 1043) 564, 585 Oladele v. Nigerian Army (2004) 6 NWLR (pt. 868) 166
The above dicta is unquestionably a truism and needs no comment, because it is manifestly instructive and binding on me.
In the instant case, it is the election of the appellant to offer explanations in respect of the allegation against him or a decision to keep mum and utter no word in his defence, that will bring out the justice in this matter at the end of the day when the trial judge renders his judgment thereon. For now, it is clear to me that the learned trial judge, rightly over-ruled the submissions of the appellant’s counsel on the no case submission.
For example, in Rev. Fr. (Dr.) Obiorah v. Federal Republic of Nigeria, (supra) the appellant, a Legal Practitioner was alleged to have obtained some money from some persons and arraigned for prosecution pursuant to Section 1(1)(b) of the Advance Fee Fraud and Other Related Offences Act, No. 14 of 2006. He was charged along with his client ? one Rev. Fr. Silas Nweke, whom he was defending as his counsel. However, there was evidence linking only Rev. Fr. Silas Nweke, with the commission of the offence in question. There was no scintilla of evidence linking the Rev. Fr. Dr. Obiorah with the commission of the offence. The trial Federal High Court Awka, Coram: P. F. Olayiwola, J., over-ruled the preliminary objection to his trial, as ventilated by the appellant. He appealed to this Court. In our decision we held thus:
‘Now, are the facts disclosed in the proofs of evidence, that is, the extra-judicial statements obtained by the persons who complained against Rev. Fr. Silas Nweke, that he obtained some amounts of money from them in order to buy cement for them and which he did not, link the action of the said Rev. Fr. Silas Nweke, with the appellant herein’
In order words, was there any reasonable cause for the operatives of the Economic and Financial Crimes Commission, to have apprehended and charged the appellant with any offence, in respect of this matter. The appellant contends that there is no prima facie case made out against him and that the charge against him ought to have been quashed by the learned trial judge. Curiously, respondent?s learned counsel did not respond to the appellant?s contention. Be that as it may, I painstakingly perused the extra-judicial statements, obtained by the respondent from the persons who complained that Rev. Fr. Francis Nweke swindled them of certain sums of money and did not supply cement to them as promised. I am afraid, there is nothing in the statement of those witnesses which linked the appellant with the cement deal between the witnesses and Rev. Fr. Silas Nweke. Indeed, in the petition addressed to the EFCC on this matter at the instance of one Dr. M. Nnama Umenweke, dated 13th March, 2009 in this matter, he clearly stated at pages 5 – 6 of the record of appeal, inter alia:
‘Most importantly, all efforts to recover the money fraudulently collected by Rev. Father Silas Nweke is being frustrated by Rev. Fr. Dr. Edwin S. C. Obiorah. Rev. Fr. Dr. Edwin S. C. Obiorah has also vowed that as far as he remains a lawyer that the money will not be refunded.’
It appears that the only allegation against the appellant is that he frustrated all the efforts by the complainants to collect their money from Rev. Fr. Francis Nweke, because the appellant is a lawyer. I am of the considered opinion that there was no reasonable cause for the arrest and arraignment of the appellant in connection with this matter.
The word ‘reasonable’ is defined to mean : ‘Fair, proper or moderate under the circumstances’ at page 1293 of the BLACK?S LAW DICTIONARY, 8TH Edition. Further see Rinco Construction Co. v. Veepee Ind. Ltd (2005) 9 NWLR (pt. 929) 85; (2005) 3 – 4 SC 1; (2005) LPELR ? 2949 (SC) at pg. 15.
In the circumstances of this case, can it be said that is was fair, proper and moderate to apprehend a legal practitioner who allegedly frustrated the recovery of some amount of money from his client who was charged with a criminal offence, for having allegedly swindled some persons?. I think not. It seems to me that the apprehension and arraignment of the appellant for standing by his client Rev. Fr. Silas Nweke, for the offence of obtaining property by false pretences, smacks of victimization, oppression and prejudice against him by the respondent. There is clearly no reasonable evidence linking the appellant with the charges of obtaining property by false pretences, from anybody. In other words, the proofs of evidence, discloses no prima facie case against the appellant. per Yakubu, JCA at pages 33 – 36 of the LPELR (supra).
I am afraid, in the instant case, I cannot say of what I said of the appellant in Obiorah v. F. R. N. (supra); of the appellant herein. In other words, I am of the considered and firm opinion that there is a prima facie case made out by the prosecution against the appellant, which warranted the learned trial judge, in rightly over-ruling the no case submission and calling upon him to enter upon his defence if any.
For all the foregoings, I resolve the two issues in this appeal in favour of the respondent and against the appellant.
I hold that the appeal is lacking in merits and it is accordingly dismissed.
Consequently, the ruling of M. L. Abubakar, J., in re-Charge No. FHC/AWK/50c/2018 rendered on 12th March 2018 is hereby affirmed.
RITA NOSAKHARE PEMU, J.C.A.: I had read in draft, the lead judgment just delivered by my brother TOM SHAIBU YAKUBU, JCA. I agree with his reasoning and conclusion.
I also dismiss the appeal and affirm the decision of the Court below.
I abide by the consequential order made as to costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have had a preview of the judgment just delivered by my learned brother HON. JUSTICE TOM SHAIBU YAKUBU, JCA. I agree that the appeal has no merit. The law is settled that where a trial Court intends to overrule a no case submission, the Court should be very brief in its ruling. This is to avoid a situation where the Court will make a pronouncement that may prejudice the defence of the accused person. Where the Court overrules a no case submission, the Court should not engage in an evaluation, analysis of evidence and making findings at that stage otherwise the judge may be accused of bias by taking a position in the case without hearing from the accused person. See UBANATU V. COP (2000) LPELR 3280 SC AT 26 – 27 (G – B). The Supreme Court stated what a Court should do when it rejects a no case submission in ATANO V. A.G. BENDEL State (1988) 2 NWLR (PT. 75) PAGE 201 AT 231 – 231 (G – C). The Court stated thus:
‘Strictly speaking, as a submission of no case should be limited to the law, there will be no harm discussing the law in the ruling. But one soon discovers that no meaningful discussion of the law can be made in vacuo, without any reference to the facts. If law and facts are thus to be discussed then itNis much wiser to be extremely short. In fact one single sentence is enough: “I over-rule the submission and will give my reasons in my judgment.”
It is much wiser to be brief: BELLO V. THE STATE (1966) 1 ALL NL R 223 A T P. 227 The danger in a long ruling discussing law and facts, is that too much might be said which at the end of the case might fetter the Judge’s discretion. In NSOEDO V. COMMISSIONER OF POLICE (1972)2 E.C.SL.R. (PART 11) 519 AT P. 523, EGBUNA . J. held that when in a Ruling on a no case submission the trial Magistrate proceeds to make findings of facts, that would amount to the accused not being given a fair trial. He allowed the appeal and order a retrial. Learned counsel for the appellants relied heavily on this case. The difficulty with Nsoedo’s case supra is not that it is a decision of the High Court which is not binding on this Court. The difficulty lies in the fact that it did not attend sufficiently to the real cause or reason for avoiding long ruling – namely the possibility of the trial judge giving the unfair impression that he had already made up his mind on half of the evidence. An accused person in such a predicament will be entitled to feel that the Judge was not been fair to him, that he had already made up his mind against him without as much as hearing his explanation. That is the highly objectionable feature. And that is the aspect that dangerously encroaches on the realm of denial of a fair hearing to an accused person. The true test is whether the ordinary citizen looking at the trial as a whole would feel that justice had been not done: ISIYAKU MOHAMMED V. KANO NATIVE AUTHORITY (1968)1 ALL N.L.R. 424 AT P. 426.
The submission of the appellant’s counsel that the learned trial judge did not render a considered decision because he failed to evaluate the evidence and give reason(s) for its decision does not appreciate the settled principles of law guiding the Court in ruling on a no case submission. What the learned trial judge did is totally in compliance with the law. I too dismiss the appeal.
Appearances:
C. B. Anyigbo, Esq.For Appellant(s)
O. Marshal – Umukoro, Esq., Senior Legal Officer, EFCC – for 1st Respondent.
Chinyere Nnamdi, Esq. -for 2nd Respondent.For Respondent(s)
