OKECHUKWU GEOFFERY v. THE STATE
(2019)LCN/12637(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of February, 2019
CA/IL/C.49/2018
RATIO
APPEAL: RIGHT TO APPEAL
“‘The right of appeal is a constitutional right but it must not be abused. A purported exercise of the constitutional right of appeal deliberately designed to delay hearing in proceedings before a subordinate court is regarded as an abuse of process.’ See The State vs. Okponipere (supra). And in TSA IND. LTD. Vs. FBN PLC (No. 1) (2012)14 NWLR (pt. 1320) 326 (SC) and Kode vs. Yussuf (2001) 4NWLR (pt. 703) 392, that where the Court holds the opinion that an appeal or application constitutes a breach or is an abuse of the process of Court, it should be visited with a dismissal. I am inclined to agree with the learned DPP, that the instant case is one which this Court should not tolerate. The preliminary objection succeeds and the appeal dismissed.” PER HAMMA AKAWU BARKA, J.C.A.
COURT AND PROCEDURE: ABUSE OF COURT PROCESSES
“It is trite that the abuse of Court process is commonly taken to mean the improper use of the legal process, where a party improperly uses the judicial process to the irritation and annoyance of his opponent and the efficient and effectual administration of justice, and or is wanting in bona fide and therefore frivolous, vexatious and oppressive. See Adeniyi vs. FRN (2012) 1 NWLR (pt. 1281) 284, R. Benkay (Nig.) Ltd vs. Cadbury (Nig) Ltd (2012) 9NWLR (pt. 1306) 596.” PER HAMMA AKAWU BARKA, J.C.A.
COURT AND PROCEDURE: NO CASE SUBMISSION
“As rightly contended by the learned DPP, the essence of a submission of a no case to answer lies in the contention that the evidence adduced by the prosecution and called in the discharge of the burden of proof placed upon it by law, failed to establish a prima facie case. See Tongo vs. COP (2007) LPELR 3257 (SC). See also FRN vs. Bankole (2012) ALL FWLR (pt. 629) 1150, Onagoruwa vs. The State (1993) 7 NWLR (pt. 303) 49, The State vs. Audu (1973) 6SC 28.” PER HAMMA AKAWU BARKA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
OKECHUKWU GEOFFERY Appellant(s)
AND
THE STATE Respondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the ruling of Justice T.S Umar of the Kwara State High Court sitting in Ilorin, the Kwara State Capital in charge No. KWS/9C/2016 between; The State and Okechukwu Geoffery and one other, and delivered on the 1st of December 2016, wherein the appellants no case submission was dismissed.
The brief facts deducible from the record shows that appellant and one Ndubueze Judah Israel were on the 7th of April, 2016 jointly arraigned before the High Court of Kwara State sitting in Ilorin, on a two count charge of conspiracy to defraud one Igwe Joshua contrary to Section 8 and punishable under Section 1 (3) of the Advance Fee Fraud and other related Offences Act 2006, and obtaining by false pretense the sums of money totaling three million Naira (N3,000,000.00) from one Igwe Joshua under false pretense punishable under Section 1 (3) of the Advance Fee Fraud and other related offences Act 2006.
The appellant and his co-accused having pleaded not guilty to the two count charge, were upon application, admitted to bail.
In the course of trial, two witnesses testified for the prosecution, and after the prosecution had closed its case, learned counsel for the accused persons made a no case submission which was over ruled by the trial Court, and the accused persons asked to enter their defense.
The appellant proceeded to advance evidence in his defense by giving evidence in person and was cross examined by the prosecution. The defense asked for an adjournment to enable it call its other witness. Later and in the course of proceedings, learned counsel for the accused persons applied to have the case transferred to a different judge, premising his application on the refusal of the trial Court to call for the MTN log, allegedly bearing the conversation between the appellant and PW1, which was refused. Counsel further applied for a stay of proceedings which was similarly refused.
On the 13th of February, 2018, Learned counsel filed the instant appeal predicated on three grounds. The grounds and their particulars are as follows:-
GROUND ONE
The learned trial judge erred in law when he overruled the submission of No case to answer made by the defense at the end of the evidence of the prosecution witnesses.
Particulars of error
1. It is trite law that a submission of no case to answer will be upheld when no prima facie case is made out against an accused or there has been no evidence connecting the Accused person with the alleged offence(s).
2. The evidence adduced by the prosecution witnesses has been so discredited during cross-examination and are manifestly unreliable that no reasonable Tribunal/Court would convict on it.
GROUND TWO
The learned trial judge erred in law when he failed to properly evaluate the evidence of the prosecution before arriving at its decision overruling the no case submission.
Particulars of error
1. The evidence adduced by the prosecution were manifestly unreliable that no reasonable could convict on them.
2. The PW1 was evasive throughout his testimony.
3. The PW1 admitted of not knowing or having any business with the appellant.
4. There is nothing in the evidence of the prosecution witnesses linking the appellant to the alleged offences.
5. There is no cogent and compelling evidence before the Court justifying the decision of the Court.
6. Had the trial judge evaluated dispassionately the evidence of the prosecution before the Court, he would have arrived at a different decision.
7. The trial judge failed to consider judicial authorities cited before it by the defense counsel and had he done so, he would have arrived at a different conclusion.
8. The learned trial judge failed to be bound by the judicial precedent of superior Courts of record and thereby occasioned miscarriage of justice.
GROUND THREE
The ruling of the Court is unreasonable, unwarranted and cannot be supported having regards to the evidence before the Court.
The record of appeal was transmitted on the 20/4/2018 but deemed transmitted on the 13th of June, 2018; consequent upon which, appellant filed his brief of argument on the 7/8/2018 also deemed filed on the 5/11/2018. Appellant also filed a reply brief on the 27/11/2018 deemed filed on the 29/11/2018. The respondent?s on his part filed the respondents brief of argument on the 29th of October 2018, incorporating a preliminary objection. On the 29/11/2018, being the scheduled hearing date, parties identified their respective processes and adopted same in urging the Court to allow the appeal and or dismiss the appeal as the case may be.
The appellant in the brief settled by J.O. Abdulkareem with C.A. Igwebuike at page 4 thereof, identified two issues for the resolution of the appeal. The two issues crafted are as follows:
1. Whether the trial Court was right to have over ruled the No case submission made by the defense at the close of the evidence of the prosecution.
2. Whether the trial Court properly evaluated the evidence adduced by the prosecution before arriving at its decision.
The state in opposing the appeal, and in the brief filed by Jimoh Adebimpe Mumini the learned DPP Kwara State, on the 29th of October, 2018, incorporated a preliminary objection located at paragraph 3.0, page 3, and argued at paragraphs 4.0 – 4.16 at pages 4 – 8 of his brief filed on the said 29/10/2018. That notwithstanding, learned counsel chose to adopt the issues formulated by the appellant and argued same seriatim.
Preliminary Objection
The basis of the respondents preliminary objection is anchored on the ground that the appeal amounted to a flagrant abuse of Court process. Relying on the definition of the term abuse of Court process in the cases of Daniel vs. FRN (2014) All FWLR (pt. 735) 315 at 351 and Ukachukwu vs. PDP (2014) All FWLR (pt. 728) 887 at 903-904, learned counsel reviewed the proceedings in respect of the case at the trial Court particularly as it pertains to the part played by the appellants, contending that appellants are only interested in wasting time and causing unnecessary delay in the final determination of the case. He argued that appellant having commenced their defense ought to have completed same, before exercising his right of appeal.
Further relying on the cases of The State vs. Okponipere (2011) All FWLR (pt. 598) 99 at 1003 and Chidoka vs. First City Financial Company Ltd (2013) All FWLR 1024 at 1037, counsel submitted that the right of appeal should not be abused and where intended to delay the hearing of the proceedings such amounts to an abuse of court process. Submits that the attitudinal disposition of the appellant is meant and designed to frustrate the prosecution of the case, and therefore urged the Court to dismiss the appeal.
The Learned appellant’s counsel, at paragraph 2.0 – 2.9 contained at pages 10 – 14 of the appellants reply brief responded to the preliminary objection, contending that the preliminary objection in itself constituted an abuse of the process of the Court. Also settling on the definition of what constitutes abuse of Court process, detailed in the cases of Seven Up Bottling Co. Ltd vs. Abiola and Sons Bottling Co. Ltd (1996) 7 NWLR (pt. 463) 714 @ 741 and Amaefuna vs. The State (1988) 2 NWLR (pt. 75) 156 @ 177, submits that abuse of Court entails multiplicity of actions and the improper use of the judicial process or abuse of legal procedure. Submits that the present appeal from the definition referred to does not amount to an abuse of Court process, and contended that the objection apart from being sentimental in nature has no legal basis. Submit that appellant has shown that he is ready to stand trial, and the applications made by the appellant before the trial Court were consequent upon the Court’s refusal to order for the MTN call log of the two numbers, which cannot be gotten except by the order of the Court. Counsel finally on this urged the Court to discountenance with the authorities cited as being inapplicable to the instant case and to dismiss the preliminary objection.
It is trite that the abuse of Court process is commonly taken to mean the improper use of the legal process, where a party improperly uses the judicial process to the irritation and annoyance of his opponent and the efficient and effectual administration of justice, and or is wanting in bona fide and therefore frivolous, vexatious and oppressive. See Adeniyi vs. FRN (2012) 1 NWLR (pt. 1281) 284, R. Benkay (Nig.) Ltd vs. Cadbury (Nig) Ltd (2012) 9NWLR (pt. 1306) 596.
Indeed as submitted by the learned DPP, where a Court comes to the conclusion that its process, which it has the duty to guard jealously is being abused, has the right and power to dismiss the process. See Chidoka vs. First City Finance Company (2013) NWLR (pt. 1024) 1037.
Of immense importance also is the fact that the right of appeal is a creation of the almighty Constitution, and is not lightly denied.
The right of appeal is a very important constitutional right and the exercise thereof cannot be fettered. See Obikoya vs. Wema Bank Ltd (1989) LPELR-2176 (SC) per Oputa JSC. However the Courts are positioned in that the right of appeal should also not be subjected to abuse. See The State vs. Okponipere (supra).
In the instant case, it seems clear to me that appellant at the stage of the lower Court’s ruling on the no case submission did not express any displeasure with the ruling, but was rather irked at the refusal of the Court to call for the MTN call log applied for. It stands to reason also that his applications before the trial Court were ignited by the refusal of the lower Court to accede to that request. His decision is to now revert to appealing the no case submission earlier dismissed, as against appealing the refusal of the Court below which refused his applications. It is my humble view that appellant in the circumstances ought to have founded a ground of appeal against the said refusal at the end of the day as against reverting to appealing the ruling on the no case submission, regardless of the fact that appellant had commenced its defense in compliance with the ruling of the Court.
I note also that for every process filed before this Court, appellant had to seek for enlargement of time, having filed all the processes out of time. The learned DPP opined that appellants? only desire in filling the appeal is to frustrate the early disposal of the case at the court below. I cannot agree more. Faced with the same problem as in the instant case, it was held that:
‘The right of appeal is a constitutional right but it must not be abused. A purported exercise of the constitutional right of appeal deliberately designed to delay hearing in proceedings before a subordinate court is regarded as an abuse of process.’ See The State vs. Okponipere (supra).
And in TSA IND. LTD. Vs. FBN PLC (No. 1) (2012)14 NWLR (pt. 1320) 326 (SC) and Kode vs. Yussuf (2001) 4NWLR (pt. 703) 392, that where the Court holds the opinion that an appeal or application constitutes a breach or is an abuse of the process of Court, it should be visited with a dismissal. I am inclined to agree with the learned DPP, that the instant case is one which this Court should not tolerate. The preliminary objection succeeds and the appeal dismissed.
In the unlikely event that I am wrong, which I do not concede to, but being an intermediate Court, I will proceed to consider the appeal, considering the two issues simultaneously.
On whether the trial Court was right to have overruled the no case submission made by the defense at the close of evidence of the prosecution, it was contended by learned counsel for the appellant that before a no case submission can be overruled, the prosecution must have made out a prima facie case against an accused person. He argued that from the totality of the evidence adduced before the trial Court, prosecution failed to establish a prima facie case against the appellant. Submit that there was no legally admissible evidence linking the appellant to the commission of the offence with which he was charged to necessitate his being called upon to answer, and that the evidence adduced was so discredited by cross examination and thereby unreliable as a result of cross examination that no reasonable Court could convict on same: Suberu vs. The State (2010) ALL FWLR (pt. 1274) 1284 ? 1285. Running through the evidence adduced, learned counsel submitted that the evidence has been rendered unreliable that no reasonable Tribunal Court convict on it.
On whether the lower Court properly evaluated the evidence adduced by the prosecution before arriving at its decision, it was contended by the appellant that the trial Court failed to properly evaluate the evidence laid and or to consider the legal authorities cited, thus breaching appellants constitutional right of being innocent until proven guilty.
The response of the learned DPP can be found at pages 8 to 12 of the respondent?s brief filed by him. On whether the trial Court was right to have overruled the no case submission made by the defense, it was contended that the principle behind a no case submission lies on the premise that an accused person be relieved of the responsibility of defending himself when there is no evidence upon which the Court could convict. He opines that at that stage it was not necessary for the Court to determine if the evidence led can justify conviction:Ubanatu vs. COP (1999) 7 NWLR (pt. 611) 512 @ 522; Ekwunugo vs. FRN (2009) ALL FWLR (pt. 450) 614 @ 623. Submits that all that is required of the prosecution is to establish a prima facie case and not to establish the alleged offence.
On the allegation bordering on criminal conspiracy, it was submitted that to sustain a charge of criminal conspiracy contrary to Section 8 of the Advance Fee Fraud and Other Related Offences Act 2006, certain elements must be established. This is done by leading evidence from which the trial judge infers certain criminal acts of the accused in pursuance of the criminal purpose. He submits that from the evidence of the Pw 2, and Exhibits 2 and 3, buttresses the fact that there was a prior agreement to commit advance fee fraud. Further referring to the cases of Ajuluchukwu vs. The State (2014) ALL FWLR (pt. 749) 1015, Duru vs. Nwosu (1989) 1 NWLR (pt. 1) @ 43, Ibeziako vs. COP (1963) 1 ALL NLR 61 and Ajiboye vs. The State (1994) 8NWLR (pt. 364) 587 on what to observe when an application of no case is raised, it was submitted that from the facts elicited by the prosecution by way of the prosecution witnesses, the prosecution can be said to have proved its case reasonably for the defense to open their case.
On whether the trial Court properly evaluated the evidence adduced by the prosecution before arriving at its decision, it was the contention for the state that credibility of witnesses is not considered at the stage of a no case submission. Submits that evaluation of evidence at a no case submission stage by the trial Court is not a requirement of the law nor acceptable practice.
Submits that the trial Court was right to have overruled the no case submission of the appellants, and the trial Court need not evaluate the evidence at that stage.
The duty of the trial Court faced with a submission of no case to answer, is as clearly set out in the case of Daboh vs The State (1977) ALL NLR 146, where Udo Udoma JSC articulated that:
‘When a submission of no prima facie case 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. If the submission is based on discredited evidence, such discredit must be apparent on the face of the record. If such is not the case, then the submission is bound to fail.’
As rightly contended by the learned DPP, the essence of a submission of a no case to answer lies in the contention that the evidence adduced by the prosecution and called in the discharge of the burden of proof placed upon it by law, failed to establish a prima facie case. See Tongo vs. COP (2007) LPELR 3257 (SC). See also FRN vs. Bankole (2012) ALL FWLR (pt. 629) 1150, Onagoruwa vs. The State (1993) 7 NWLR (pt. 303) 49, The State vs. Audu (1973) 6SC 28.
Also in Tongo vs. COP (supra), Onnoghen CJN, held the view that:
‘It should always be borne in mind that at the stage where a no case submission is made particularly where learned counsel indicates intention not to rely on same, what is to be considered by the Court is not whether the evidence produced by the prosecution against the accused is sufficient to justify conviction, but whether the prosecution has made out a prima facie case requiring at least some explanation from the accused person as regards his conduct or otherwise. See also Ubanatu vs. COP (supra) cited by both parties.
It has been held that a submission of no case to answer postulates one or two or both of the following; it postulates that throughout the trial, no legally admissible evidence at all was led against the accused person linking him in any way with the commission of the offence with which he was being charged, necessitating his being called upon to answer, and that whatever evidence there was which could have linked the accused with the commission of the offence, has been so discredited by cross examination that no reasonable tribunal or Court can act on it in convicting the accused person. See Tongo vs. COP (supra) per Oguntade. See also Suberu vs. The State (supra).
The appellant opined that from the totality of the evidence adduced by the prosecution a prima facie case has not been disclosed against the accused person, and more over that the trial Court did not evaluate the evidence adduced before arriving at its decision.
The lower Court in its ruling at pages 86 – 88 identified the principles governing a no case submission, and ruled that upon a careful consideration of the evidence before it and the exhibits tendered, a prima facie case has been made out against the appellant requiring him to render explanations thereto. From the state of the law, the position of the appellants counsel delving into a full consideration of the evidence and according credibility and weight thereto, becomes premature and therefore not a requirement of the law. The case of Ubanatu vs. The State (supra), settles the point, as it is unnecessary at that stage considering if the evidence was sufficient to ground a conviction. The requirement at that stage is whether a prima facie case has been made warranting the accused being called upon to explain.
The evidence of the PW 1 is at pages 58 ? 63, while Pw 2 gave evidence and was recorded at pages 63 ? 68 of the record.
The Apex Court in the consideration of what amounts to a prima facie case, held that the term simply means that ‘there is a ground for proceeding’. it envisages the evidence which if uncontradicted, and if believed would be sufficient to prove the case against the accused: Milton P. Ohwovoriole, SAN vs. FRN (2003) LPELR 2364 (SC).
A calm view of the evidence thus adduced upon a critical examination to me does not support the contention of the learned counsel for the appellant. I make bold to say that the trial Court was right in calling upon the appellant to explain material allegations made against him in the evidence adduced. I agree with the learned counsel for the respondent and the lower Court, that the trial Court was right to have overruled the no case submission made by the appellant, and further that the Court at that stage was not legally bound to evaluate the evidence before it, as doing so would have been preemptive. I fail to see any scintilla of merit in the instant arguments of the appellant and thus determine the two issues against the appellant.
Having determined the preliminary objection against the appellant, I hold that the appeal is an abuse of Court process, and dismiss same accordingly.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I entirely concur with the reasoning and conclusion reached in the Judgment delivered by my learned brother, Barka, JCA, to the effect that there is no scintilla of merits in the instant appeal.
I hereby adopt the said reasoning and conclusion as mine and accordingly dismiss the appeal for being an abuse of Court process
BALKISU BELLO ALIYU, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother HAMMA AKAWU BARKA JCA just delivered. I am in total agreement with the reasoning and conclusion reached in the lead judgment and I adopt same as mine.
The Appellant’s complaint in this appeal is that he was called upon to enter his defence after the prosecution, had closed its case against him. Indeed he had complied with the order of the trial Court and testified in his defence as DW1, but decided thereafter to appeal against the ruling of the trial Court on the no case submission. Having entered his defence by testifying, it was an utterly misuse of the process of Court on the part of the Appellant to retrace his steps by appealing against the ruling which he had complied with. Clearly this appeal is a ploy to delay the determination of the case by the trial Court, thus constituting an abuse of the process of this Court. In such circumstances, the counsel for the party ought to have known better and advised the Appellant accordingly, otherwise the counsel risks being cast in bad light of not being a good minister of the Temple of Justice. The preliminary objection of the Respondent has merit in the circumstance and I uphold it against the Appellant.
On the merit of the appeal, in the event, I am wrong in upholding the objection of the Respondent, I join by learned brother in dismissing same upon the reasoning in the lead judgment. The findings of the learned trial judge in his ruling that there was a prima facie case made out against the Appellant upon which he should offer some explanation if he so wished was not and is not the same as proof of the offence charged. The proof will come later in the determination of the guilt or otherwise of the Appellant. See Oko vs. State (2017) LPELR-42267; SEJ and Okafor Vs. FRN & ANOR. (2018) LPELR-44897 among others. I also dismiss the appeal having found it lacked merit and in addition to it constituting a gross abuse of this Court’s process.
Appearances:
U. C. OgbonnaFor Appellant(s)
J. A. Mumini (DPP, Kwara State) with him, M. Abdulhamid (SC 1)For Respondent(s)
