OBINNA OKEKE V. THE STATE
(2012)LCN/5370(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of May, 2012
CA/E/78/2011
RATIO
APPEAL: WHETHER ISSUES FOR DETERMINATION CAN BE MORE THAN THE GROUNDS OF APPEAL
the law is settled that issues for determination cannot be formulated to be more than the grounds of appeal. See KALU V. OHUABUNWA (2004) 7 NWLR (Pt. 871) 1 by the sole ground of appeal before the court the Respondent is not entitle to formulate more than one issue for determination, accordingly the second issue for determination formulated by the Respondent is discountenanced. PER ABUBAKAR JEGA ABDUL-KADIR J.C.A
CRIMINAL LAW: CIRCUMSTANCES A NO CASE SUBMISSION MAY BE UPHELD
A no case submission may be upheld where:
(a) there is no evidence to proof an essential element of the alleged offence;
(b) the evidence adduced has been so discredited as a result of cross – examination; and
(c) the evidence is so manifestly unreliable that no reasonable tribunal or court can safely convict on it.
See AITUMA V. STATE (2007) 5 NWLR (PT 1028) 466; AMINU V. STATE (2005) 2 NWLR (PT 909) 108; IGABELE V. STATE (2004) 15 NWLR (PT.896) 314; AKWA v. C.O.P (2003) 4 NWLR (PT. 811) 461. PER ABUBAKAR JEGA ABDUL-KADIR J.C.A
CRIMINAL LAW: EFFECT OF AN ACCUSED RESTING HIS CASE ON NO CASE SUBMISSION
When an accused rests his case on no case submission, the effect is that he rests his case completely on the evidence adduced by the prosecution by so doing he must succeed or fail upon such evidence adduced by prosecution; see IGABELE V. STATE; (supra); AKINYEMI V. STATE (1999) 6 NWLR (PT. 607) 449. PER ABUBAKAR JEGA ABDUL-KADIR J.C.A
CRIMINAL LAW: ESSENTIAL INGREDIENTS OF MURDER
The essential ingredients of murder are:-
(i) The deceased was dead
(ii) And was actually killed by the accused/appellant
(iii) The killing was unlawful
(iv) And the actual cause of death was connected to the accused/appellant. PER ABUBAKAR JEGA ABDUL-KADIR J.C.A
CRIMINAL LAW: WHETHER THE PROSECUTION NEED TO PROVE ALL DOCUMENTS
In criminal trials it is for the prosecution to prove all documents it is relying on in order to secure conviction. PER ABUBAKAR JEGA ABDUL-KADIR J.C.A
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
OBINNA OKEKE Appellant(s)
AND
THE STATE Respondent(s)
ABUBAKAR JEGA ABDUL-KADIR J.C.A, (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of Enugu State sitting at Awgu, coram, Onyia J. delivered on 1st day of February, 2011.
The facts leading to this appeal are stated thus –
The Appellant was charged to court in a single count of murder contrary to Section 274(1) of the Criminal Code Cap. 30 Volume II Laws of Enugu State.
On the 27/10/2009, his plea was taken and he pleaded not guilty to the offence. The trial commenced with PW1 testifying.
At the end of the testimony of PW1, no other witness had testified for the prosecution nor was any documentary evidence tendered as an exhibit apart from the statement of PW1 which was received in evidence and marked Exhibit “A”
At the close of the case for the prosecution the Appellant’s counsel had made a no case submission in his favour to which the state counsel replied and on the 1st day of February the learned trial Judge had relied heavily on the “Statement” of the Appellant contained in the proof of evidence but not actually tendered in evidence as an Exhibit. The Police Officer that allegedly took the “Statement” as an exhibit was not called in evidence to tender the “Statement as an exhibit nor was any attempt even made to tender the same through any other witness.
The appeal was heard on 21/2/2012. At the hearing of the appeal learned counsel to the Appellant Mr. C.C. Oguejiofor informed the court that the Appellant’s Brief of Argument and is dated 17/3/11 and filed on 18/3/11 he adopted the Brief of Argument and urged the court to allow the appeal. Learned Counsel to the Respondent Mr. S. Ejim informed the court that the Respondent brief of argument is dated 23/6/11 and filed same date. He adopted the brief and urges the court to dismiss the appeal.
In a brief settled by C.C. Oguejiofor Esq. one issue was distilled from the sole ground of appeal and it is stated thus:-
“Whether the learned trial Judge was right in law to have overruled the no case submission made on behalf of the Accused/Appellant in this matter and in making use of the “Statement” of the Accused/Appellant that was not admitted in evidence before the court as an exhibit to reach the decision”.
Learned counsel to the Respondent S. Ejim Esq in his brief of argument added one issue for determination in addition to the issue already submitted for determination by the Appellant, the issue is stated thus –
“Whether a court is entitle to look at documents in its file”
In the instant appeal the Notice of Appeal contained only one ground of appeal and the law is settled that issues for determination cannot be formulated to be more than the grounds of appeal. See KALU V. OHUABUNWA (2004) 7 NWLR (Pt. 871) 1 by the sole ground of appeal before the court the Respondent is not entitle to formulate more than one issue for determination, accordingly the second issue for determination formulated by the Respondent is discountenanced.
In arguing the sole issue for determination learned counsel for the Appellant submits that the prosecution had called one witness and tendered just an Exhibit in evidence that in his testimony on 27/10/2009, at page 2 of the record the witness PW1 has stated as follows –
“On 16/8/2005 my elder brother Obinna Okeke met me and said that a man who claimed that his name is Uchenna Ogbu wanted to strangle him to death when he was sleeping with him in the same room — I took the man and my brother to the Police Station Awgu. At that time the man sustained an injury but I was not there when we arrived at the Police Station the man told the Police to leave Obinna, that is the accused person, that he did not do anything to him. I stated this in my second statement to the police”.
That the above was the resume of the evidence of the only witness for the prosecution in the matter after which the prosecution then closed their case.
Learned counsel submits that they then made a no – case submission on behalf of the accused/appellant and the learned trial Judge had at page 17 of the record stated as follows –
“Having stated the position of the law, I want to also state that a submission of a no – case to answer may properly be upheld.
(i) When there has been no evidence to prove an essential element in the offence alleged and
(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 could safely convict on it”
That the learned trial Judge had also found as follows at page 16 of the record thus –
“Permit me to say that the adversarial Criminal Justice System we have in this country imposes on the prosecution the burden to prove a criminal allegation against a citizen beyond all reasonable doubt”.
Counsel to the Appellant contends that the question now is was there any evidence led by the prosecution to prove the essential ingredients of the offence of murder as to necessitate the Accused/Appellant being called upon to enter a defence to the charge, counsel submits that no evidence whatsoever was led at the trial to prove the essential ingredients of murder which include:
(i) That the deceased was dead
(ii) And was actually killed by the Accused/Appellant
(iii) That the killing was unlawful
(iv) And that the actual cause of death was connected to the Accused/Appellant.
Counsel submitted that the evidence of PW1 which earlier on was laid out and who was the only witness for the prosecution in this matter whose testimony rather than aid the case of the prosecution was contrarily favourable to the Accused/Appellant who testified that the deceased had told the police not to do anything to the accused/appellant since he had no hand in what had happened to him.
Counsel to the appellant argues that he has gone through the gamut of the proceedings and sees no such evidence in the information connecting the Accused/Appellant to the charge of murder.
That the learned trial Judge had held at page 17 to 18 of the printed record as follows:
“So in determining whether a prima-facie case was made out against an accused or not, resort must be bad to the proof of evidence filed in support of the information charging the accused with any offence or offences, therefore, the statements must be carefully read to know if there is any “prima-facie” case for the accused to answer, see Aminu Vs State supra at 191 par as E – F”
The learned trial Judge had continued “In the instant case, I have carefully read the proof of evidence filed in support of the information charging the accused with an offence of murder. The accused/applicant at the earliest opportunity that offered itself made a statement to the Police in which he stated that” at about 0400 hours the man came back to my room and started knocking holding stick on his hand, immediately I carried a matchet and pursued him before UNTH fence, the man fell down from where I gave him machete cut on his right palm, left-lapse (sic) and right foot. I am the person who used matchet and cut the man, my brother don’t know anything about the man wounding. I don’t know the man before. This is all my statement.”
The learned trial Judge had then held “It seems to me that this is a confessional statement made by the accused in his statement to the police, the accused admitted that he used matchet to cut the deceased and it presupposes he knew the probable consequences of his act, What led to this sordid and brutal action can only be ascertained through evidence of the accused in defence of the charge”.
Learned counsel the appellant submits that the above is the crux of the matter for there is no doubt from the same that the learned trial Judge had imported and used the “Statement” of the accused/appellant to the police which was not tendered in evidence or admitted in the proceedings as an exhibit in reaching his decision to overrule the no case submission for the accused/appellant and urge us to so hold.
Further counsel to the appellant contends that the Ruling of the learned trial Judge was on a no case submission and not a motion for an indictment contained in an information to be quashed because a prima-facie case had not been made out upon which the accused should be called upon to make an answer.
That in a no – case submission the pertinent questions are the following: (A) Whether evidence had been led in prove essential ingredient(s) of the offence charged, (b) Whether the said evidence has been discredited so much by cross examination that no reasonable tribunal can safely rely on same to convict (C) Or whether the evidence is manifestly so unreliable that no tribunal can rely on the same to convict. In the case of quashing an indictment because a prima-facie case has not been made out, the court however does not go beyond the proof of evidence and the statements of the witnesses and other materials contained in the proof of evidence to make its decision, in other words, it considers the facts and materials contained in the proof of evidence unlike in a no – case submission where it is evidence led at the trial that is considered.
Learned counsel to the appellant submits that for a no case submission to be properly taken the trial ought to have commenced and all the evidence of the prosecution witnesses taken. That the court in order therefore to determine whether the no case submission would fail or succeed looks only at the evidence led before the court and documents admitted in evidence and not the proof of evidence. Further counsel argues that it is trite law that the court cannot import materials not tendered in evidence before the court as exhibits in arriving at its decision.
That the so called “confessional statement” of the accused/appellant which the trial court had relied on heavily in overruling the no case submission was not even shown to the accused appellant to look at. Again, no witness was cross examined on the same to determine its source, the veracity of its contents and more importantly, the requirement of Section 27(2) of the Evidence Act LFN 2004 were not met before the learned trial Judge had treated the statement as a confessional statement.
It is submitted for the Appellant that Section 27(2) of the Evidence Act provides “Confessions if voluntary, are deemed to be relevant facts as against the persons who make them only” that by requirement of law therefore, the pre-condition or condition precedent for a statement of an accused person to be regarded as “confessional” is that it must be shown to be voluntary.
Learned counsel to the appellant argues that it is when a “statement” is sought to be introduced in evidence through a witness that it would be tested to determine if it was voluntarily made and or obtained or not, that a statement in the proof of evidence that has not been tendered in the proceedings as an exhibit cannot rightly therefore be treated as a confessional statement for the purposes of Section 27(2) or any aspect of our Criminal Jurisprudence for that matter because the accused did not have the opportunity of seeing the same and cross examining the witness that tendered it on its voluntariness. Counsel contends that in criminal trials, it is for the prosecution to prove all documents it is relying on in order to secure conviction, reference made to OKEKE V. OBIDIFE AND ORS (1965) ANLR 51 AT 54; GBAJOR V. OGUN BUREGUI (1961) 1 ALLNLR 886; OLAGBEMIRO V. AJAGUNAGBADE III (1990) 3 NWLR (Pt 136) 37 at 63.
Appellant’s counsel submits that the learned trial Judge had at page 17 of the record placed reliance on the case of AMINU V. STATE, (2005) 2 NWLR (Pt 909) 180 at 191 paragraphs E – F to find that the accused/appellant has a case to answer and that the no case submission failed but incidentally, the no case submission in AMINU V. STATE (supra) was overruled because the court had found that the evidence of PW2 and PW4 were sufficient to call on the accused to make an answer to the case of the prosecution, unlike the present case where there was no such evidence except the statement of the accused/appellant that was not tendered in evidence as an exhibit.
Finally learned counsel for the Appellant urged us to set-aside the decision of the court below and uphold the no case submission and discharge the accused/appellant on the merit.
In response to the submissions of the Appellant’s learned counsel, learned counsel to the Respondent submits that the submission that the prosecution had only one witness that his evidence intends to be favourable to the accused, the said statement credited to PW1 that the deceased told the police to allow the accused as he did not know what happened was not true. That the prosecutor asked the PW1 whether the deceased made statement to the police, his answer was he did not know then did one who was unconscious mention such?
Counsel for the Respondent argues that the trial Judge was right in his Ruling rejecting the no case submission relying on the statement made by the Appellant reliance was placed on the cases of ENITAN & ORS. V. STATE (1986), NSCC VOL. 17 (PT 11) 77; UWAGBOE V. STATE (2008) VOL. 163, LRCN 97 RATIO 8; ODEH V. FRN (2008) VOL. 165 LRCN 26; AKPA V. THE STATE (2008) VOL. 163 LRCN 189, AMINU V. THE STATE (2005) 2 NWLR (Pt 909) 180 AT 191.
Further counsel to the Respondent submits that the proof of evidence/information which are in the court’s file wherein the statements of prosecution witnesses that of the accused and other relevant facts are contained are already before the court and there are documents, hence the court is in position to look at documents pending before it reference made to EGHARE UBA V. OSAGIE (2010) VOL 180 LRCN 80.
That the trial Judge acted wisely by overruling the No Case Submission since the confessional statement of the accused has already formed part of the documents pending before the court, the denial of making the statement of none refusal to open their defence cannot override what is contained in the court’s file.
Finally counsel to the Respondent urged us to uphold the decision of the trial Judge that the accused/appellant had a case to answer and dismiss the appeal in its entirety.
The only issue for determination in this appeal is as earlier stated thus –
“Whether the learned trial Judge was right in law to have overruled the no case submission made on behalf of the Accused/Appellant in this matter and in making use of the statement of the Accused/Appellant that was not admitted in evidence before the court as an exhibit to reach the decision”.
The starting point in the determination of this issue is to define what constitute no case submission, and it is thus:-
In a criminal trial, at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of the accused person postulates one or two things or both of them at once:
(a) Such a submission postulates that there has been throughout the trial no legal admissible evidence of whom the submission has been made, linking him in anyway with the commission of the offence with which he had been charged, which would necessitate his being called upon for his defence;
(b) That whatever evidence there was which might have linked the accused person with the offence has been discredited that no reasonable court can be called upon to act on it as establishing criminal guilt in the accused person concerned.
Therefore, when a submission of no case submission is made on behalf of an accused person, the trial court is not thereby called upon at that stage to express any opinion on the evidence before it. The court is only called upon to take note and to rule accordingly that there is before the court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged.
See AITUMA V. STATE (2007) 5 NWLR (PT. 1028) 466; IGABELE V. STATE (2004) 15 NWLR (PT. 896) 314; AKWA V. C.O.P (2003) 4 NWLR (PT. 811) 461; AITUMA V. STATE (2006) 10 NWLR (PT. 989) 452.
A no case submission may be upheld where:
(a) there is no evidence to proof an essential element of the alleged offence;
(b) the evidence adduced has been so discredited as a result of cross – examination; and
(c) the evidence is so manifestly unreliable that no reasonable tribunal or court can safely convict on it.
See AITUMA V. STATE (2007) 5 NWLR (PT 1028) 466; AMINU V. STATE (2005) 2 NWLR (PT 909) 108; IGABELE V. STATE (2004) 15 NWLR (PT.896) 314; AKWA v. C.O.P (2003) 4 NWLR (PT. 811) 461.
When an accused rests his case on no case submission, the effect is that he rests his case completely on the evidence adduced by the prosecution by so doing he must succeed or fail upon such evidence adduced by prosecution; see IGABELE V. STATE; (supra); AKINYEMI V. STATE (1999) 6 NWLR (PT. 607) 449.
On the other hand a prima – facie case is said to exist when there is evidence sufficient enough to support the allegation made against the accused person. It means that a presumption of guilt is made out against the accused. And, as a prima facie case is made out against the accused he should rebut same on facts within his knowledge. See IGABELE V. STATE (supra); IGHO V. STATE (1978) 3 S.C 87. Upon the submission of no case to answer by the counsel to the accused, the prosecutor if he is a lawyer normally replies. Thereafter the court makes a brief ruling without making any observations on the facts.
If the submission is upheld, the accused must be discharged, if it is overruled because a prima – facie case is made out against the accused sufficiently to require him to make a defence, then by virtue of Section 287 of the Criminal Procedure Act the court shall call upon him for his defence. See AKWA V, C.O.P. (supra),
In the instant appeal only one witness testified for the prosecution to establish the offence of murder contrary to Section 274(1) of the Criminal Code Cap 30 Volume 11 of the Laws of Enugu State of Nigeria 2004. The testimony of the witness PW1 at page 2 of the printed record is to the effect thus-
“On 16/8/2005 my brother Obinna Okeke met me and said that a man who claimed that his name is Uchenna Ogbu wanted to strangle him to death when he was sleeping with him in the same room. I met the deceased Uchenna Ogbu and I asked him who he was and he told me that his name was Uchenna Ogbu from Nara in Nkanu Local Government Area. I took the man and my brother to the police station Agwu. At that time the man sustained an injury but I was not there when he sustained the injury. When we arrived at the police station the man told the police to leave Obinna that is he accused person, that he did not do anything to him”
The above is the totality of the evidence of the only witness for the prosecution in the matter after which the prosecution then closed their case.
The pertinent question here is was there any evidence led by the prosecution to prove the essential ingredients of the offence of murder as to necessitate the accused/appellant being called upon to enter a defence to the charge.
The essential ingredients of murder are:-
(i) The deceased was dead
(ii) And was actually killed by the accused/appellant
(iii) The killing was unlawful
(iv) And the actual cause of death was connected to the accused/appellant.
The evidence of the prosecution witness did not establish any of the essential ingredients of the offence of murder and did not connect the offence charge to the accused/appellant, infact the piece of evidence exonerate the accused/appellant from the offence alleged as PW1 testified that the deceased had told the police not to do anything to the accused/appellant since he had no hand in what happened to him. It is beyond dispute that from the totality of evidence placed before the court there is nothing whatsoever connecting the accused/appellant to the charge of murder.
The learned trial Judge at pages 17 to 18 of printed Record has held thus –
“So in determining whether a prima-facie case was made out against an accused or not, resort must be had to the proof of evidence filed in support of the information charging the accused with any offence or offences, therefore, the statements must be carefully read to know if there is any “prima-facie” case for the accused to answer, see Aminu Vs State supra at 191 par as E – F”
The learned trial Judge had continued “In the instant case, I have carefully read the proof of evidence filed in support of the information charging the accused with an offence of murder. The accused/applicant at the earliest opportunity that offered itself made a statement to the Police in which he stated that” at about 0400 hours the man came back to my room and started knocking holding stick on his hand, immediately I carried a matchet and pursued him before UNTH fence, the man fell down from where I gave him machete cut on his right palm, left-lapse (sic) and right foot. I am the person who used matchet and cut the man, my brother don’t know anything about the man wounding. I don’t know the man before. This is all my statement.”
The learned trial Judge had then held “It seems to me that this is a confessional statement made by the accused in his statement to the police, the accused admitted that he used matchet to cut the deceased and it presupposes he knew the probable consequences of his act. What led to this sordid and brutal action can only be ascertained through evidence of the accused in defence of the charge”.
It is apparent from the above portion of the Ruling of the learned trial Judge that the “statement” of the Accused/Appellant to the police was imported and used in arriving at the decision to overrule the no case submission.
The “Confessional Statement” referred to in the Ruling was not tendered in evidence or admitted in the proceedings as an exhibit.
Indeed for a no case submission to be properly taken the trial ought to have commence and all the evidence of the prosecution witnesses taken. Therefore the court in order to determine whether the no case submission would fail or succeed looks only at the evidence led before it and documents properly admitted in evidence not at the proof of evidence.
The “Confessional Statement” of the accused/appellant which the trial court relied on heavily in overruling the no case submission was never tendered and admitted in evidence before the trial court. In criminal trials it is for the prosecution to prove all documents it is relying on in order to secure conviction.
In OKEKE V. OBIDIFE (supra) at 54 the apex court held thus:-
“secondly, the appellant submits that the Judge ought not to have treated the statement contained in the police case file as admissible evidence on the ground that the officer to whom it was made was not called as a witness. In a criminal case this would be a valid objection, but in a civil case formal proof of a document can always be waived”.
See GBAJOR V. OGUN BUREGUI, 1961 1 ANLR 886; OLAGBEMIRO V. AJAGUNAGBADE III (1990) 3 NWLR (PT.136) 37 at 63.
It is therefore imperative that the confessional statement of the accused/appellant must be tendered and admitted in evidence through a witness and where it is not tendered in court as an exhibit it cannot be relied on or used by the court in arriving at any decision.
In the instant appeal by the testimony of PW1 there was no evidence whatsoever connecting the appellant with the offence of murder as contained in the charge before the trial court. The learned trial Judge heavily relied on the confessional statement of the accused/appellant which was never tendered and admitted in evidence to overrule the no case submission, accordingly the sole issue for determination is resolved in favour of the Appellant against the Respondent.
On the whole I am of the firm view that on the facts and evidence adduced before the lower court a prima facie case of murder has not been established against the Appellant. This is a proper situation where a no case submission could be made and upheld by the law court as the essential elements of the offence charged had not been established.
I, in the circumstances allow the appeal, I set aside the ruling of Onyia J. delivered on 1/2/11 calling the Appellant to enter his defence. I uphold the no case submission and accordingly discharge and acquit him on the charge.
AYOBODE O. LOKULO-SODIPE, J.C.A: I have had the privilege of reading in advance the judgment just delivered by my learned brother, ABUBAKAR JEGA ABDULKADIR, JCA; and I am in total agreement with his lordship’s reasoning and conclusions.
I however wish to make a little contribution. The learned trial Judge in his ruling clearly correctly stated the principles governing “no-case submission”. He also correctly stated what “prima facie case” is about. The learned trial Judge would however appear to have confused himself or misapprehended the positions of the law as they relate to “no case submission” and “prima facie case” vis-a-vis the situation in the instant case. The learned trial Judge in his ruling stated at pages 16 – 18 of the record thus:-
“Permit me to say that the adversarill (sic: adversarial) criminal justice system we have in this country imposes on the prosecution the burden to prove a criminal allegation against a citizen beyond all reasonable doubt – see section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria which presumes the accused person innocent until otherwise proved guilty by the prosecution. See also section 138(1) of the Evidence Act, LFN, 2004 which imposes the burden on the prosecution to prove the guilt of the accused person beyond reasonable doubt.
In other words, the burden of proof in a criminal case is always on the prosecution and, unlike in civil cases, the burden never shifts as it remains constant on the prosecution. The standard of proof is beyond reasonable doubt as provided by Section 138(1) of the Evidence Act.
See also Dagayya V State (2004) 17 NWLR Part 903 at P 529 particularly at P.540. In the present case, the accused person is facing a single count charge of murder on the 17th day of August 2005 at Ituku village in Agwu Judicial Division of Enugu State of one Uchenna Ogbu (a.k.a. Uchenna Ndubisi). In an attempt to prove the allegation made against the accused, the prosecution called only one witness and closed his case. The Learned defence counsel followed it up by making a no case submission,
Clearly, it has been the practice in criminal trials that at the close of the prosecutions (sic) case, for the defence to make a no case submission that the evidence presented before the court has not established a prima facie case in order to call upon the accused to open his defence for one or more or the whole counts in the charge. If the court upholds a submission for any of the counts then the accused should be regarded as not being charged on that count even though no formal verdict of not guilty has been taken.
See Emedo V State (2002) 15 NWLR (Pt. 789) 196.
Having stated the position of the law, I want to also state that a submission of no-case to answer may properly be upheld.
(i) when there has been no evidence to prove an essential element in the offence alleged; and
(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 could safely convict on it,
The decision to uphold or reject the submission should not depend upon whether the evidence is such that reasonable tribunal might convict thereupon but on whether a prima facie case has been established. See Ibeziako V COP (1963) 1 SCNLR 99.
Amina V State (2005) 2 NWLR (part 909) 180 particularly PP 190 – 191.
The actual meaning of the phrase prima facie is often misconstrued in the face of the dearth of its precise definition by the courts. However, the term prima facie can be said to mean that there is ground for proceeding. A prima facie case is not the same as proof, which comes later when the court has to find whether the accused is finally guilty or not. Evidence disclosing a prima facie case is such that if uncontradicted and if believed will be sufficient to prove the case against the accused.
See Ajidagba VIGP (195S) SCNLR 60
So, in determining whether a prima facie case was made against an accused person or not, resort must be made to the proof of evidence filed in support of the information charging the accused with any offence or offences. Therefore, the statements must be carefully read to know if there is any prima facie case for the accused to answer…”(Underlining supplied by me).
The learned trial Judge having considered the statement of the accused person attached to the Information and which he expressed the view, to be a confessional statement, thereafter applied the position of the law that an accused can be convicted upon his own confession alone that is positive and direct and proper, and concluded that a prima facie case has been made out against the accused. Apparently, overruling the no-case submission the learned trial Judge called on the accused (Appellant) to enter his defence.
The learned trial Judge in my considered view clearly lost sight of the fact that he was not dealing with an application to strike out the indictment preferred against the Appellant on the ground that the evidence in the proofs of evidence, is not such as to require him to face trial. The learned trial Judge was dealing with a no-case submission. The proper stage, at which a no-case submission is made in a criminal trial, is after the prosecution has adduced evidence in respect of the charge preferred against an accused person, and closed its case. This much would appear to be apparent having regard to the first of the circumstances when no-case submission can properly be upheld as set out by the learned trial Judge in his ruling to wit: “when there has been no evidence to prove an essential element in the offence alleged.”
It requires no complicated thought process to know that in a trial wherein the prosecution successfully tenders the confessional statement of an accused person, the prosecution is thereby relying on the said confessional statement in establishing the guilt of the accused person. The corollary of this is that where the prosecution has indicated in the proofs of evidence that it will rely on the confessional statement of an accused person at trial, and neglects or omits to tender the same, then such confessional statement cannot be taken into reckoning in the proof of the guilt of the accused person.
In the instant case, though the prosecution attached the statement of the Appellant which the learned trial Judge considered to be confessional to the proofs of evidence of the Information upon which he (Appellant) was being tried, the prosecution for reasons best known to it, failed to tender the said confessional statement before it closed its case. Surely, the learned trial Judge ought to have appreciated that the statement of the Appellant which he stated to be confessional in his ruling, having not been tendered in the course of the trial before the prosecution closed its case was not evidence before him. It therefore becomes most glaringly that the learned trial Judge in his ruling on the no-case submission made by the Appellant did not restrict himself to the evidence adduced in the case by the prosecution before it closed its case. The learned trial Judge in his wisdom decided to take into consideration “proposed evidence” as it were that the prosecution intended to rely upon in proving its case against the Appellant but which it later decided to jettison.
The evidence of the only witness fielded by the prosecution before it closed it case is at pages 2-4 of the record. The learned trial Judge never suggested that the evidence of this witness (who was clearly not an eyewitness) linked the Appellant with the death of the deceased in any manner. He relied on the statement of the Appellant which he considered to be confessional and which he imported into the evidence adduced by the prosecution in overruling the no-case submission made by the Appellant. This is not good enough. The learned trial Judge having decided to go by way of prima facie case in deciding the merit or otherwise of the no-case submission made by the Appellant should have restricted himself to evidence before him. The learned trial Judge would appear to have been hell bent or determined to have the Appellant enter his defence despite the fact that the evidence before him did not demand this. I say again that this is not good enough.
It is in the light of all that has been said above, and which go to show that there was no iota of evidence to prove any, talk less of all the essential elements of the offence of murder preferred against the Appellant, that I am in total agreement with the conclusion of my learned brother Abubakar Jega Abdulkadir, JCA, that “This is a proper situation where a no case submission could be made and upheld by the law court as the essential elements of the offence charged had not been established.”
In conclusion, I too allow the appeal and hereby set aside the ruling of the lower court delivered on 1/2/2011 calling on the Appellant to enter his defence. I uphold the no-case submission made by the Appellant and accordingly discharge and acquit the Appellant on the charge preferred against him.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A: I have had a preview of the judgment just delivered by my learned brother, A.J. ABDUL-KADIR, JCA.
The reasons given and the conclusions reached thereto are agreeable to me and I so adopt them as mine. I also find this appeal meritorious and is hereby allowed.
The appeal succeeds and the Ruling of the lower court is hereby set aside. The submission of no case to answer is hereby upheld and the accused is discharged and acquitted.
Appearances
Mr. C. C. Oguejiofor,
Mr. B.O. NwanjokuFor Appellant
AND
Mr. M. Obiekwe,
Mr. Y. Lawal and
Miss O. DadaFor Respondent
