MR. REMI OLAOFE v. FEDERAL REPUBLIC OF NIGERIA & ORS
(2018)LCN/11933(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2018
CA/L/791C/2015
RATIO
COURT AND PROCEDURE: A PRIMA FACIE CASE
“A prima facie case means no more than that there is reasonable legal ground for proceeding with the trial of an accused person after the close of the evidence by the prosecution with calling on him to explain the real connection to or link with the commission of the offence/s disclosed by such evidence. See Ajidagba v. COP (1958) 3 FSC. 5, (58) SCNL. 60, Abacha v. State (2002) 7 SC (Pt.1) 1, (02) 11 NWLR (779) 437, Ubanatu v. COP (2000) 2 NWLR (643) 115, Ikomi v. State (1986) 3 NWLR (28) 340, Ekpo v. State (2001) 7 NWLR 712 @ 792, Daboh v. State (1977) 5 SC, 122, (1977) ALL FWLR. 146, Amadi v. State (1993) 1 NWLR (314) 644.” PER MOHAMMED LAWAL GARBA, J.C.A.
CRIMINAL LAW; ELEMENTS OF THE OFFENCE OF CONSPIRACY
“The essential ingredients or elements of the offence of conspiracy are: –
(a) Agreement by two (2) or more persons to do an illegal/unlawful act, or
(b) To do a legal/lawful act by illegal/unlawful means, and
(c) Manifestly putting or, carrying out their agreement and intention.
See: Akinwunmi v. State (1987) 7 NWLR (1952) 606, Garba v. COP (2007) 16 NWLR (1060) 378 @ 403, Sule v. State (2009) 17 NWLR (1169) 33 @ 63, Ikaria v. State (2010) LPELR-4291 (CA), Adedara v. State (2009) LPELR-8194 (CA), Aituma v. State (supra), Obiakor vs State (2002) 10 NWLR (776) 612, Omotola v. State (2009) 7 NWLR (1139) 148. Mohammed v. State (1991) 5 NWLR (192) 438, Iden v. State (1994) 8 NWLR (365) 719.” PER MOHAMMED LAWAL GARBA, J.C.A.
CRIMINAL LAW: OFFENCE OFOBTAINING BY FALSE PRETENCE
”In Onwudiwe v. FRN (2006) ALL FWLR (319) 774 @ 812, the Supreme Court, per Tobi, JSC set out the essential ingredients which constitute the offence of obtaining by false pretence when said: – ‘For the offence of obtaining by false pretence to be committed, the prosecution must prove that the accused had an intention to defraud and the thing is capable of being stolen. An inducement on the part of an accused to make his victim part with a thing capable of being stolen or to make the victim deliver a thing capable of being stolen.'” PER PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
MR. REMI OLAOFE Appellant(s)
AND
1. FEDERAL REPUBLIC OF NIGERIA
2. FREEWEALTH VENTURES LIMITED
3. DONALD OLOYEDE
4. GEM PROPERTIES LIMITED Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
The Appellant and the 2nd – 4th Respondents were charged on a three (3) counts charge contained on the Amended Information dated 9th February, 2012 before the High Court of Lagos State (High Court) for the following offences: –
a. Conspiracy to commit an offence to wit obtaining by false pretence contrary to and punishable under Section 516 of the Criminal Code Law of Lagos State 2005. (1st Count).
b. Obtaining money by false pretences contrary to and punishable under Section 419 of the Criminal Code Law of Lagos State 2003. (2nd Count).
c. Stealing the sum of N42.5 Million property of Nigress and Hontas Limited. Oso Afolabi, Kingway Securities Limited, Samuel Faniran, Ariel Investment Management Limited and Olasibo Onileowo contrary to and punishable under Section 390 (9) of the Criminal Code Law of Lagos State 2003 (3rd Count).”
The Appellant and other Defendants to the charge pleaded not guilty to the offences and at the close of the prosecution’s evidence, the Appellant’s Counsel made a no case submission which was overruled by the High Court in a Ruling delivered on the 19th February, 2013 and he was ordered to enter his defence.
This appeal is against the said Ruling and it is brought by the Notice of Appeal dated the 6th March, 2013 on three (3) grounds from which two (2) issues are said to arise for determination in the Appellant’s brief filed on the 20th February, 2018.
The issues are: –
ISSUE ONE:-
Whether in the circumstance, the Learned Trial Judge misdirected himself when he dismissed the Appellant’s no case submission on the ground that a prima facie case has been established against him by the Prosecution?
(GROUND 1, 2 & 3)
ISSUE TWO
Whether from the evidence adduced by the Prosecution, a prima facie case can be deemed established against the Appellant warranting the need for the Appellant to enter into his defence? (GROUND 2 & 3)”
Although the record of the Court shows that the Respondents, particularly, the 1st Respondent, were duly served with all the relevant processes of the appeal, including the Record of Appeal and Appellant Brief, none of them filed a Respondent brief to contest the appeal. On that ground, the appeal is uncontested by the 1st Respondent who was the prosecutor at the High Court and the Court is only left with the issues and arguments canvassed by the Appellant in support of the appeal.
This position notwithstanding, the law still requires the Court to consider the merit of the issues and arguments canvassed thereon and make findings based on whether or not they are sustainable in law on the ground that appeals are to succeed on the merit of the grounds and issues based thereon and not merely on the absence of a challenge or contest by the Respondents in a Respondent’s brief. Akpan v. State(1992) 6 NWLR (248) 439; John Holt Ventures Limited v. Oputa (1996) 9 NWLR (470) 101;Echere v. Ezirike (2006) All FWLR (323) 1597 @ 1608,(2006) 12 NWLR (994) 386.
As can easily be seen from the formulation by the learned counsel, a single issue calls for decision from the grounds of the appeal and it is sufficiently covered by the issue 2 which defers from issue 1 only in the manner of formulation.
After a reference to the historical background of the guide to the consideration of a no-case submission in England, the cases of Emedo v. State (2002) 15 NWLR (789) 196 @ 204 and Chianugo v. State (2002) 2 NWLR (750) 225 @ 237 were cited on what a no-case submission postulates and when it may be made and upheld.
According to counsel for the Appellant, the principle behind a no case submission is that an accused person should be relieved of the responsibility of defending himself when there is no evidence upon which the trial Court could convict or that the evidence was so discredited under cross examination such that no Court can act on it to pronounce an accused person guilty of the offence/s charged, citing Onagoruwa v. State (1993) 7 NWLR (303) 49. State v. Audu (1972) 6 SC, 28 and Adeyemi v. State (1991) 6 NWLR (195) 35, among other cases on the point.
The presumption of innocence until proved guilty in favour of every person charged with the commission of a crime or criminal offence under Section 36(5) of the 1999 Constitution is said to be the force or logic behind the principle of no case submission so that where no case was made out at the close of the prosecution evidence, an accused person shall not be called upon to prove his innocence by entering a defence, on the authority of Mumuni v. State (1975) 6 SC. 79 and Daboh v. State (1979) 5 SC. 197.
Learned Counsel referred to Exhibits L and M tendered by the prosecution in evidence and argues that until the transaction for the merger of the two (2) companies in question was completed and the Appellant was shown not to have made the transfer of shares as required in the merger agreement, the Appellant could not be said to have fraudulently converted the sum for the shares to his personal use. That the evidence called by the prosecution and cross-examination did not establish the offence alleged against the Appellant to warrant calling on him to enter his defence and that the High Court did not properly consider the decision of this Court in the case of Odido v. State (1995) 1 NWLR (369) 88 @ 116-7.
The case of Okafor v. State (2016) LPELR-26064 (SC) was cited on once again, the guide to upholding a no case submission, among many other cases and in further argument, counsel said the dismissal of the Appellant’s submission of no case was based on the Appellant’s admission of receipt of the sum in question and own-issuance of the shares for the sum without a consideration of the import of Exhibits L and M and the evidence of PW5 that the transaction was not concluded. It is then submitted that the High Court erred when it held that the Appellant has an explanation to give on the money received and non issuance of the shares it was paid for.
The evidence adduced in respect of each of the offences on the charge by the prosecution was referred to and it is contended that it is not “reasonable or credible enough to establish the guilt of the Appellant beyond reasonable doubt.”
Cases on proof of the ingredients or elements of each of the offences were referred to, including Haruna v. State (1972) 8-9 SC, 174 @ 200-1, On conspiracy, Alake v. State (1991) 7 NWLR (205) 567 and State v. Osler (1991) 6 NWLR (PT. 199) 576 @ 587 on obtaining by false pretence and stealing and it is insisted that the evidence adduced by the prosecution did not prove all the essential elements or ingredients of each of the offences on the charge.
Learned Counsel then embarked on an assessment of the evidence of prosecution witnesses which was said to have been proffered in bad faith in order to over reach the Appellant as there was no scintilla of evidence to link him with the shares transaction which led to the charge against him.
The case of A.G. Federation v. AIC Limited (2000) l0 NWLR (675) 306 @ 311 and 314 and 314 was commended to the Court and it is urged to so hold. Ojo v. FRN (2008) 11 NWLR (1099) 529-30, Ogunye v. State (1999) 5 NWLR (604) 548, State v. Onyeukwu (2004) 14 NWLR (893) 340 were referred on the duty of the prosecution to make out a prima facie case and prove all the ingredients of the offences charged beyond reasonable doubt and it is submitted that the prosecution did not make out a prima facie case to warrant the Appellant to enter his defence which amounts to proving his innocence which is already presumed in his favour by the Constitution.
The Court is urged to resolve the issues in Appellant’s favour and allow the appeal, set aside Ruling by the High Court and to discharge and acquit the Appellant of the offences he was charged with.
Now, the learned counsel for the Appellant is right that the concept of no case submission evolved in our criminal procedure laws, has its origin in the constitutional rebuttable presumption of innocence in favour of any person charged before a Court of law, with the commission of a crime or criminal offence.
Section 36(5) of the 1999 Constitution (as in other corresponding) sections of previous Constitutions) provides that: –
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
Because the presumption provided for in the above section is rebuttable, it starts from arraignment in a trial to such a time in the proceedings when the evidence adduced by the prosecution against an accused person is such that it apparently shows reasonable connection or link between the accused person and the commission of the offence to warrant and call for some explanation from him.
When the evidence adduced by the prosecution against an accused person in respect of the offence/s he was charged with shows that he is in any reasonable way involved in the commission of a criminal offence under the law, then a prima facie rebuttal of the presumption of innocence would have been made and if no explanations were made or offered by the accused person at that stage, the evidence would be sufficient for the Court to convict for the offence/s the accused was tried for. In such a situation, a prima facie case would have been disclosed by the evidence to warrant calling on the accused person to offer the required explanations by entering and opening his defence during which he may adduce exculpating evidence or evidence which would cast reasonable doubt in the proof of any or all of the essential elements or ingredients of the offence/s he was tried for.
However, where an accused person is of the view that the evidence adduced by the prosecution at the close of its case in respect of any or all of the offence/s he was tried for, was not sufficient in terms of quantity and quality to show that the ingredients or elements of the offence/s have any reasonable connection with or link to him, he may pray the trial Court, by way of a no case submission, to discharge him of the offences since the evidence adduced against him does not disclose the need for him to offer any explanations in respect of the commission of the offence/s he was tried for.
At the stage of a no case submission, the only evidence before the trial Court is that adduced by the prosecution against an accused and so in the determination of whether a prima facie case has been made out or disclosed by such evidence, a trial Court does not embark on the appraisal of the entire facts and assessment or evaluation of the evidence in the sense of proof the offence/s beyond reasonable doubt.
At that stage therefore, what has to be considered is not whether the evidence adduced by the prosecution against the accused person is sufficient to justify or warrant conviction for the offences but, whether the evidence, on its face or apparently, has shown real and direct connection to or link between the accused person and the commission of the criminal offence/s he was charged with in terms of the essential ingredients or elements of the offence/s which would necessitate and require some explanations from him, in the absence of which the Court could convict him.
In common parlance, a trial Court is simply to consider whether the evidence adduced before it against an accused person, at a judicial glance or first appearance, discloses a prima facie case for the commission of the offence/s he was charge with, against him that places a legal duty on him to offer explanations without which the Court could convict him in respect of the offence/s.
A prima facie case means no more than that there is reasonable legal ground for proceeding with the trial of an accused person after the close of the evidence by the prosecution with calling on him to explain the real connection to or link with the commission of the offence/s disclosed by such evidence. See Ajidagba v. COP (1958) 3 FSC. 5, (58) SCNL. 60, Abacha v. State (2002) 7 SC (Pt.1) 1, (02) 11 NWLR (779) 437, Ubanatu v. COP (2000) 2 NWLR (643) 115, Ikomi v. State (1986) 3 NWLR (28) 340, Ekpo v. State (2001) 7 NWLR 712 @ 792, Daboh v. State (1977) 5 SC, 122, (1977) ALL FWLR. 146, Amadi v. State (1993) 1 NWLR (314) 644.
In the case of Coker v. State (1988) 2 NWLR (1986) 36, (1988) 7 SC (Pt. 1) 25, “no case submission? was defined to mean:-
“That there is no evidence on which the Court would convict even if the Court believed the evidence adduced by the prosecution.”
That is the position that was lucidly explained by this Court in the case of Chianugo v. State (supra) when it said that a no case submission postulates one of two (2) things, viz:-
(a) Firstly, such a submission is tantamount to saying that there has been throughout the length and breadth of the case presented in Court by the prosecution no legally admissible evidence led against the accused person on behalf of whom the submission was made to connect him in any way with the commission of the offence with which he has been charged which would compel his being called upon to defend himself or
(b) Secondly, it may mean that whatever evidence there was which might have linked the accused person with the commission of the offence has been so discredited through cross-examination that no reasonable tribunal can be called upon to act on it as establishing the guilt of the accused person or that evidence is so manifestly unreliable such that no reasonable tribunal can safely convict on it.”
It was based on this postulation that the apex Court stated the situations or circumstances when a submission of a no case to answer by an accused may be made by him at the close of the evidence against him by the prosecution and when it may properly be upheld by a trial Court in the case of Emedo v. State (supra). The situations/circumstances are: –
(i) When there has been no evidence to prove an essential element in the alleged offence;
(ii) 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 also Ohuka v. State (No. 2) (1988) 4 NWLR (1986) 36. Onagoruwa v. State (1993) 7 NWLR (303) 49 @ 82. Ubanatu v. COP (supra) also reported in (2001) 2 ACLR. 335, Ekwunugo v. FRN (2008) 7 SCNJ. 236 @ 242. Tongo v. COP (2007) 4 SC (Pt III) 1 (2007) 12 NWLR (1049) 525, Daboh v. State (1977) 5 SC, 197 @ 209. Aituma v. State (2006) 10 NWLR (989) 452 @ 473. Suberu v. State (2010) 8 NWLR (1197) 596.
In the case against the Appellant, he was charged with the offences of conspiracy to obtain by false pretence contrary to Section 516 of the Criminal Code of Lagos State, 2003, obtaining by false pretence contrary to Section 419 of the Code and stealing contrary to Section 390(9) of the Code. In the case of Shurumo v. State (2010) 9 NWLR (1226) 73, the offence of conspiracy is to be an agreement between two (2) or more persons to do an illegal/unlawful act or to do a lawful/illegal act by unlawful/illegal means and it consists not merely of the intention ipso facto, but also putting the intention into effect or action and the plot itself is an act capable of being enforced.
The essential ingredients or elements of the offence of conspiracy are: –
(a) Agreement by two (2) or more persons to do an illegal/unlawful act, or
(b) To do a legal/lawful act by illegal/unlawful means, and
(c) Manifestly putting or, carrying out their agreement and intention.
See: Akinwunmi v. State (1987) 7 NWLR (1952) 606, Garba v. COP (2007) 16 NWLR (1060) 378 @ 403, Sule v. State (2009) 17 NWLR (1169) 33 @ 63, Ikaria v. State (2010) LPELR-4291 (CA), Adedara v. State (2009) LPELR-8194 (CA), Aituma v. State (supra), Obiakor vs State (2002) 10 NWLR (776) 612, Omotola v. State (2009) 7 NWLR (1139) 148. Mohammed v. State (1991) 5 NWLR (192) 438, Iden v. State (1994) 8 NWLR (365) 719.
In Onwudiwe v. FRN (2006) ALL FWLR (319) 774 @ 812, the Supreme Court, per Tobi, JSC set out the essential ingredients which constitute the offence of obtaining by false pretence when said: –
“For the offence of obtaining by false pretence to be committed, the prosecution must prove that the accused had an intention to defraud and the thing is capable of being stolen. An inducement on the part of an accused to make his victim part with a thing capable of being stolen or to make the victim deliver a thing capable of being stolen.”
See also Arije v. FRN (2013) LPELR-22125 (CA), Odiawa v. FRN (2008) LPELR 4230 (CA), Aguba v. FRN (2014) LPELR-2321 (CA), Onwudiwe v. FRN (supra), Alake v. State (1991) 7 NWLR (205) 567.
The essential elements or ingredients for the offence of obtaining by false pretence are: – (as set out in the Appellant’s brief)
(i) That there is a pretence;
(ii) That the pretence emanated from the accused;
(iii) and that it was false;
(iv) That the accused person knew of its falsity or did not believe in its truth;
(v) That there was an intention to defraud;
(vi) That the thing is capable of being stolen;
(vii) That the accused person induced the owner to transfer his whole interest in the property.”
See also Alli v. C.O.P. (1952) 20 NLR, 107, R V. Oyewo (1957) WRNLR, 146, Akran v. COP (1960) 5 FSC. 3. Okezie v. Queen (1963) 1 ALL NLR 1, Onwudiwe v. FRN (supra), State v. Ajuluchukwu (2011) 5 NWLR (1239) 202.
For the offence of stealing in the case of Adejobi v. State, (2011) 12 NWLR (1261) 342 it was held by the Supreme Court that: –
”A person who fraudulently takes anything capable of being stolen or fraudulently convert to his own use or to the use of any other person anything capable of being stolen is said to steal that thing.
The ingredients of the offence of stealing are as follows, namely:-
(1) The ownership of the thing stolen
(2) That the thing stolen is capable of being stolen
(3) Fraudulent taking or conversion of the thing capable of being stolen.”
See also Adepoju v. State (2011) 12 NWLR (1261) 347. Chianugo v. State (supra).Takim v. State (2014) LPELR-22667 (CA). Kolawole v. State, (2007) 5 NWLR (1026) 1.
At the trial of the Appellant, the 1st Respondent; as the prosecutor, called six (6) witnesses and tendered documentary exhibits which the High Court had to consider in the determination of the no case submission made by the Appellant. In fact, even if the Appellant did not make the no case submission, the High Court had the statutory duty, at the close of the evidence by the prosecution, to consider and determine whether or not, a case has been made out by the evidence against the Appellant and other accused persons/Defendants to require him to make a defence. Sections 239 and 240 of the Administrative of Criminal Justice Law, Lagos State, 2011 (ACJL) provide that: –
239 ? ?(1) If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence, the Court shall discharge him in respect of that particular charge.
(2) Where the defendant is represented by a legal practitioner, he shall by application invoke the provision of Subsection (1) of this section.
(3) Where the defendant is not represented by legal practitioner, the Court shall discharge him after hearing the prosecution on the issue consider, if the provision of Subsection (1) of this section avails the defendant.
240 (1) At the close of the evidence in support of the charge, if it appears to the Court that a prima facie case is made out against the defendant sufficiently to require him to make a defence, the Court shall call upon him for his defence.”
These provisions clearly impose a statutory and judicial obligation on a trial Court to, at the close of the prosecution evidence against an accused person in a trial, to make a pronouncement or finding, one way or the other, whether a prima facie case has been made out against him to make it necessary for him to be called upon to offer explanations in defence of the case made out by the prosecution evidence, which has the effect of rebutting the constitutional presumption of innocence in his favour at the commencement of the trial. That is the only plausible way a prima facie case would or would not appear to have been made out against an accused person by the prosecution evidence in a trial.
In the case of FRN v. Ekwenugo (supra), it was held that:-
“— it is only if there is no sufficient evidence linking the accused person with the statutory elements of the offence with which he is charged that a Court of trial must as a matter of law, discharge him.
See also Atano v, A.G. Bendel State (1988) 2 NWLR (1975) 201, Owonikoko v. State (1990) 7 NWLR (162) 132 Ajiboye v. State (1994) 8 NWLR (364) 587, Suleiman v. State (2011) 15 NWLR (1164) 258. FRN v. Martins (2012) 14 NWLR (1320) 287.
In its discharge of the duty imposed by these provisions, the High Court, mindful of the constraints in the determination of the no case submission by the Appellant’s Counsel, and after setting out a summary of the case presented in the evidence adduced by the prosecutor, had stated that: –
“It is patent on the face of the above contribution and contentions of Defence counsel that it is admitted that N42.5 million was indeed, received and that the purpose for which that money was received did not and has not materialized. The latin maxim at the forefront of all criminal prosecution is “actus non facit reum nisi mens sit rea” (there must be a concurrence of both the “guilty act? as well as the ?guilty mind).
The prima-facie theme of this prosecution and of the oral and documentary evidence thereon is that the receiving of this N42.5 Million without carrying into effect the intended purpose, in substance, constitutes the “guilty act” and that the “guilty mind” arises from an intention by 1st, 2nd, 3rd and 4th Defendants, interfacing between themselves and by false representations and/or pretence, to steal and/or to obtain the N2.5 Million by false pretence with intention to defraud. The Extracts (supra) that I have reproduced from the Reply Brief of the 1st and 3rd Defendants is replete with explanation being volunteered and advanced by the lawyers of the 1st and 3rd Defendants as to what inferences, interpretations and/or intention is to be ascribed to how the N42.5 Million was handled by the Defendants.
In my considered view that explanation has to come from the Defendants to explain their actions and their intention in which ever manner they propose to open and present their Defence to this Court.
In the final analysis, in my considered view I am satisfied and hold that there is prima-facie evidence placed, by the Prosecution before this Court through PW1 to PW6 and Exhibits A to Z1, which require some explanation from the 1st, 2nd, 3rd and 4th Defendants regarding the N42.5 Million that entered into their hands and the units shares the money was meant to purchase but never did uptil date. The end result is that this no case submission, on behalf of the 1st and 3rd Defendants, falls and is dismissed. In consequence, I call upon the 1st, 2nd, 3rd and 4th Defendants to proceed to open and enter upon their Defence to the prima facie case made out against them, by the Prosecution under the criminal charges maintained in the Amended information dated 9/2/2012.”
Evidently, the High Court had prudently done what it was supposed to do at the stage of the no case submission in the case and was right that the explanations made in the Address of Counsel in support of the no case submission were supposed to come in the form of evidence from and by the Appellant. In Emedo v. State (supra) the apex Court had exhorted that: –
”In considering a submission of a case, the correct procedure is to write a brief ruling and make no observation on the facts.”
In the above premises, I find that the High Court was right that the evidence adduced by the prosecution against the Appellant in respect of all the three offences he was charged with have shown real and reasonable link and connection between him and the commission of the offences to warrant calling on him to offer explanations in defence of that evidence. Put shortly; briefly, the High Court is right that a prima facie case has been made out in the evidence adduced by the prosecution, against him and to have called on him to enter and open his defence in the case.
In the final result, the appeal is devoid of merit and it is dismissed accordingly.
In consequence, the Ruling delivered by the High Court on the 19th February,2013 dismissing the Appellant’s no case submission is affirmed.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I read in draft a copy of the leading judgment of my learned brother, MOHAMMED LAWAL GARBA, JCA, just delivered. I am in agreement with the reasoning therein and I endorse the conclusion that the appeal is devoid of merit.
The question here revolves around whether the Lower Court rightly dismissed the Appellant’s no case submission, thereby warranting the need for the Appellant to enter into his defence. A no case submission simply put means that from the evidence adduced by the prosecution, the accused has no case to answer and should therefore not be called upon to defend himself. See the cases of IBRAHIM & ORS v C.O.P (2010) LPELR ? 8984 (CA); AGBO v STATE (2010) LPELR – 4989 (CA); SUBERU v STATE [2010] 8 NWLR (PT.1197) 586 (SC); FAGORIOLA v FRN (2013) LPELR – 20896 (SC).
The rationale behind a no case submission is that the prosecution has not made out a prima facie case against the accused; hence asking the accused to enter his defence would be tantamount to him proving his innocence, which will be contrary to the presumption of innocence that an accused person enjoys.
Therefore the decision to uphold or dismiss a defendant’s no case submission depends on whether the evidence of the prosecution is such that a reasonable Court might convict the accused. Once the prosecution has been able to prove the elements of the offence charged and a link has been shown between the accused and the offence, the accused is bound to be called upon to enter his defence.
Also where the evidence adduced by the prosecution is so manifestly unreliable that no reasonable Court could safely convict on it, then the accused has a case to answer. See the cases of THE STATE v OKOYE & ORS (2007) 16 NWLR (PT 1061); EKWUNUGO v FRN [2008] 15 NWLR (PT 1111) 630.
I find that the prosecution has been able to establish all the elements of the offence linking the Appellant in respect of all the three offences of conspiracy to obtain by false pretence, obtaining by false pretence and stealing. And as such the Lower Court rightly dismissed the no case submission of the Appellant. The Appellant has a case to answer.
For this and the more detailed reasoning in the lead judgment, I too dismiss this appeal and uphold the Ruling of the Lower Court dismissing the Appellant’s no case submission.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before now the draft copy of the lead judgment just delivered by my lord MOHAMMED LAWAL GARBA, JCA and I agree that the Appeal lacks merit and I also join my brother in dismissing same.
Appearances:
O. Enitan with him, O. Olusunmade and D. NwakodoFor Appellant(s)
Adeniyi Uthman with him, K. I. Tijani – for 1st Respondent.
Abayomi Arole – for 3rd & 4th Respondents.For Respondent(s)
