OKORONKWO v. FRN (2020)

OKORONKWO v. FRN

(2020)LCN/15220(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/E/103C/2019

Before Our Lordships

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

IKECHUKWU OKORONKWO APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

WHAT IS A PRIMA FACIE CASE IN RELATION TO AN APPLICATION FOR A NO CASE SUBMISSION

What is a prima facie case in relation to an application for a No Case Submission? This Honourable Court answers this question in the case of ADUKU V FRN (2009) 4 NCC 350:
“What is meant by Prima Facie case? It only means that there is a ground for proceedings … but 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… and the evidence discloses a prima facie case when it is such that un-contradicted and if believed it will be sufficient to prove the case against the accused.”

I bear in mind that at the stage of a no-case submission, the Court is not called upon to express any opinion on the evidence before it or determine the credibility of the Prosecution witnesses as to their probative value. The Court is only required to sieve through the evidence of the prosecution to determine if same links the accused person to the commission of the crime in issue. See HONOURABLE IKUFORIJI V FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-43884(SC). PER UMAR, J.C.A.

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the High Court of Enugu State delivered by Hon. E. N. Oluedo in Charge No. E/95C/2011 on 28th May, 2019 wherein the trial Court dismissed the Appellant’s no case submission and ordered him to enter his defence to the charge proffered against him.

BRIEF STATEMENT OF FACTS
By an information dated 1/7/2011 and filed on 4/7/2011, the Appellant is standing trial on thirteen counts information for the offences of Obtaining Money Under False Pretences contrary to Section 1(1) Advance Fee Fraud & Other Related Offences Act, 2006 and stealing by conversion contrary to Section 342 of the Criminal Code Law of Enugu State.

In proof of its case, the Respondent called four witnesses and tendered various Exhibits. At the close of the Respondent’s case, the learned counsel to the Appellant made a no case submission on the ground that the Respondent has not made out a case to warrant the Appellant enter his defence to the charges proffered against him. The parties filed their written addresses in respect of their postures in the no case submission of the Appellant and in a considered ruling delivered by the trial Court on 28th May 2019, the Appellant’s no case submission was dismissed and he was subsequently ordered to enter his defence.

Dissatisfied by the decision of the trial Court, the Appellant invoked the appellate jurisdiction of this Court vide a Notice of Appeal dated 28th May 2019 and filed on 3rd June 2019. The sole ground of appeal albeit without its particulars is hereunder reproduced as follows:
“GROUND OF APPEAL: ERROR IN LAW
The learned trial judge erred in law when he held that the Respondent has made out a prima facie case for the Appellant to enter his defence, when the Respondent did not establish the essential ingredients of the offences charged or the evidence of witnesses supporting the said allegation were so materially discredited that no reasonable Court can rely on the evidence.”

In line with the Rules of this Court, parties filed and exchanged their respective Briefs of Argument. The Appellant’s Brief of Argument is undated but filed on 8th November, 2019. The said Brief was settled by NNAEMEKA J.J. OKEKE ESQ. who at paragraph 3.00 of the Appellant’s Brief distilled a sole issue for the determination of this appeal to wit:
“Whether the Accused/Appellant’s No case Submission has merit and was wrongly dismissed by the Trial Court.”

The Respondent’s Brief of Argument is dated 27th February, 2020 and filed on 28th February, 2020. The said Brief was settled by FORTUNE AMINA I. ASEMEBO ESQ. who at paragraph 2.0 of the Respondent’s Brief also distilled a sole issue for the determination of this appeal to wit:
“Whether the prosecution/Respondent has made out a prima facie case against the accused persons/Appellant? (sic)”

The appeal was heard on 11th March, 2020 wherein Counsel adopted their respective Briefs and made oral adumbrations in respect of their various contentions in this appeal.

APPELLANT’S ARGUMENTS
On the sole issue distilled by learned counsel to the Appellant, counsel argued that it is well settled that a no case submission should be upheld by a trial Court when there is no legally admissible evidence before it linking the accused person with the commission of the offence charged and/or when the evidence which might have linked the accused person with the offence has been so discredited that no reasonable Court can act on it. He referred this Court to the case of TONGO & ANOR V. C.O.P (2007) 4 S.C. (Pt. III) 1 (Pp. 14 – 15, paras. C – B).

He submitted that the evidence before the Court reveal that the Respondent was unable to establish the essential ingredients of the offence of Advance Fee Fraud and stealing by conversion which the Appellant was charged with. He submitted further that the Respondent did not produce evidence or called witnesses whose evidence were thoroughly inadmissible in Court or discredited under cross-examination, that no Court can believe them. Counsel at paragraph 4.03 of the Appellant’s Brief of Argument referred this Court to Counts 1, 2 and 3 of the Information filed by the Respondent and submitted that there is no evidence in support of the three counts except the general inadmissible statements of PW1 and PW3 that the tenants informed them that the Appellant collected money from persons promising to rent self-contained rooms to them. He further submitted that PW1 in all his evidence never mentioned the names of the three alleged victims. Counsel submitted further that the evidence of PW1 and PW2 are hearsay and inadmissible. On the inadmissibility of hearsay evidence, he referred this Court to the cases of IWEKA V. FRN (2010) LPELR – 4344 (CA); GABRIEL V. STATE (2014) LPELR – 23109 (CA); OKORO V. THE STATE (1998) LPELR – 2493 (SC).

He submitted that vital witnesses were not called by the Respondent therefore counts 1, 2 and 3 of the Charges of the Respondent must fail. On the duty of the prosecution to call vital witnesses, he referred this Court to the case of OKUNADE KOLAWOLE V. THE STATE (2015) LPELR – 24400 (SC).

Counsel submitted that on Counts 4 to 13 of the charges bothering on stealing by conversion, the Respondent failed to prove the essential ingredients as stated in the case of ADEJOBI V. THE STATE (2011) 12 NWLR (PT. 1261) 347 @ 377 C – E. He further submitted that the Respondent failed to establish by any credible evidence that the Appellant received the sums of money from the persons mentioned in those counts. It was his submission that the Respondent listed the named tenants in their proof of evidence but failed to call any of them to give evidence of the fact whether the Appellant at any time and for what purpose collected from them the alleged sums of money, allegedly belonging to the Ifeanyi Okoye, the nominal complainant. He submitted that certainly there were no further basis to allege fraudulent conversion when taking has not been proved.

He submitted that Exhibits 1 – 10 tendered by the Respondent through PW3 did not establish all the receipt of the monies by the Appellant. He further submitted that PW3, the investigating police officer, who gave evidence for the Respondent testified under cross-examination that he cannot say precisely that the Appellant issued the receipts of the monies.

In his final analysis of the sole issue, counsel referred this Court to the testimonies of PW1 and PW3 and submitted that the Respondent failed to produce vital and material evidence in proof of all the 13 counts of the charge and/or that the evidence of the Respondent’s witnesses on material facts of the case were discredited under cross-examination that no Court can proceed on them. He urged this Court to resolve the sole issue in favour of the Appellant and against the Respondent and discharge and acquit the Appellant of all the 13 counts charge of the alleged offences.

RESPONDENT’S ARGUMENTS
On the sole issue distilled by the Respondent’s counsel, he submitted that at this stage, it does not involve the determination of the guilt or the innocence of the accused person. He further submitted that the issue is whether through the evidence led so far by the Respondent, a prima facie case has been made out against the Appellant. He submitted that the Respondent has made out a case against the Appellant sufficiently as to require him to make a defence.

On the principles guiding a trial Court in a no case submission, he referred this Court to the cases of DABOH V. THE STATE (1977) NSCC Vol. II Page 309; AMINU V. THE STATE (2005) 2 NWLR (pt. 917) 1 at 22, paras. B – D. Counsel at paragraph 3.5 of the Respondent’s Brief highlighted the elements of offence of obtaining money under false pretense and submitted that PW1 in his evidence-in-chief testified how the Appellant increased the rent of his property from eighty thousand naira to various amount from tenants and prospective tenants running into millions of naira which the Appellant converted to his personal use. He referred this Court to pages 181 – 184, 191 – 194, 240 – 246, 262 – 271 of the record of appeal).

Counsel submitted that PW3 testified on how the Appellant took various sums of money from four different persons under the pretext of giving them accommodation of 6, Umuezebi Street, New Haven, Enugu. He submitted further that PW3 also testified that from his investigation and conclusion, the Appellant has collected the sum of Five Million Naira from tenants and other people and fraudulently converted same to his personal use. He referred this Court to pages 282 – 309 of the record of appeal.

On the whole, he submitted that the evidence led by the Respondent has connected the Appellant with the alleged offences of obtaining money under false pretences and fraudulently converting same to his own use and that the evidence led by prosecution has not been discredited under cross-examination. He urged this Court to dismiss the appeal and to hold that the Appellant has a case to answer.

RESOLUTION
I have read through the pages of the record of appeal before this Court and the adopted briefs of argument of counsel in support of their various postures in this appeal. The issues distilled by counsel to the parties are similar if not the same. In the event of their similarity, I consider the below stated issue as sufficient to determine the different postures of parties in this appeal.
“Whether the trial Court was right to have dismissed the Appellant’s no case submission?”

The law is settled that if at the close of the evidence in support of the charge, it appears to the Court that a prima facie case is not made out against the defendant sufficient to require him to make a defence, the Court shall, as to that particular charge, discharge him. In HON. YAKUBU IBRAHIM & ORS. V. COMMISSIONER OF POLICE (2010) LPELR-8984 (CA), this Court held as follows:
“A submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element in the alleged offence charged. (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. See Ohuka v. State (NO.2) (1988) 4 NWLR (pt 86) 36 ”…if there is no sufficient evidence linking the accused with the statutory elements of the offence with which he is charged, a Court of trial must, as a matter of law, discharge him…”

The singular question that arises from the foregoing is whether an essential element of the offences was established by the Respondent in this case or better still; whether a prima facie case has been made against the Appellants to warrant him to enter defence to the charges before the Court below. The Appellant was charged with the offences of Obtaining Money under false Pretences from several persons contrary to Section 1(1) (a) of the Advance Fee Fraud and Other Related Offences Act, 2006 and punishable under Section 1(3) of the same Act and Stealing by conversion contrary to Section 342 of the Criminal Code of Enugu State and punishable under Section 352(1) of the same Act. In proof of the Appellant’s guilt, the Respondent called four witnesses and tendered several exhibits.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

In trying to ascertain whether or not, a prima facie case had been made against the Appellants to warrant the entering of their defence or otherwise, it is important to take a judicial sojourn into the evidence led by the prosecution witness and the documents tendered during trial. The Respondent led evidence through PW1, PW2, PW3 and PW4 and tendered some documents in establishing the allegations against the Appellant in the course of the trial.

PW1, one Ifeanyi Okoye whose testimony can be found at pages 180-181, 191-194, 240-246 and 262-271 of the record of appeal.

PW2 is one Tochukwu Uzoka and testimony can be found at pages 273-280 of the record of appeal. PW3 is one Bashar Bello. His testimony can be gleaned at pages 282-297, 300-304 and 306-309 of the record of appeal. Lastly, one John Micheal Ijeoma testified as PW4 and her testimony can be found at pages 312-316 of the record of appeal).

The testimony of PW1 is to the effect that there was at some point a cordial business relationship between himself and the Appellant. PW1 elaborately testified the Appellant came into the management of his father’s Hotel, Gannet Concorde Hotel at No. 6 Umuezebi Street, New Haven which was converted into self contains. He testified both under oath further on how the Appellant increased the rent of the said property without authorization and how he kept the sum of Five Million Naira collected from up to thirty tenants without remitting same to him. In the course of his examination in chief, PW1 tendered the petition he wrote to the EFCC and the copies of the receipts the Appellant issued to several persons after collecting money from them. The said documents were marked “Exhibits A, A1 – A16”. He also tendered the statements he made to the EFCC which were marked “Exhibits B – B1, B2, and B3.

To further ascertain whether or not a prima facie evidence was established by the Respondent’s witnesses, the evidence of PW2 at pages 274 to 280 of the record of appeal is also instructive on this note. PW2 testified at page 274 of the record as follows: “…I know the accused person. Sometime in the year 2011 I was invited to the Economic and Financial Crimes Commission office. When I got there I discovered that the accused was the caretaker to Prince Ifeanyi Okoye the landlord. I was asked by the Economic and Financial Crimes Commission who I paid money to. I told them that I paid the sum of two hundred and fifty thousand naira to Mr. Ikechukwu Okoronkwo for two room bedroom apartment. The apartment was not given to me neither was my money refunded to me up till now. I wrote an agreement with the accused that he will refund my money to me but since then nothing has happened…”

PW2 tendered the said agreement which was admitted and marked as “Exhibit E”. Under cross-examination at page 275 of the record of appeal, PW2 testified as follows:
“…It was the accused that was managing the property for Ifeanyi Okoye and then I explained everything to Ifeanyi Okoye and from then I discovered that Ifeanyi Okoye and the accused person were having problems. Ifeanyi told me that the accused has not paid him the whole money he has been collecting from him and that I should go to the accused person and this was after I had reported Ifeanyi Okoye to the Police at New Haven because I was not able to find the accused person. After that the accused came to me and asked me not to worry that he will refund my money and we agreed on that and wrote same down and we signed. So since then I have not been seeing the accused till now.”

The evidence of PW2 corroborates that of PW1 on the fact that the Appellant collected monies from third parties in the course of his managing PW1’s property. PW3, one Bashar Bello was the investigating officer who was in charge of PW1 complaint made to the EFCC. His evidence in chief at pages 282 to 286 of the record of appeal and his cross-examination at pages 287 – 297, 300 – 309 of the record of appeal wherein he gave an outline of the role he played in the course of investigating the petition written by PW1. PW4, one John Micheal Ijioma was a witness required by the EFCC to produce the certified true copy of the account opening package, mandate card and photo index of Ikeuj Enterprises Nigeria Limited and the Statement of Account from January 1st 2000 to 13/5/2011. The said account according to the testimony of PW4 was managed by the Appellant. The said document had been earlier tendered by the Respondent and same was marked “Exhibit I”.

An holistic review of the facts disclosed by the evidence of the PW1 and PW2, and the Investigative Police Officer (PW3) viz-a-viz the charges proffered against the Appellant, I am of the firm view that a prima facie case has been disclosed by the Respondent’s evidence at the trial Court to warrant the Appellant being called upon to offer his defence. The evidence before the Court below, to my mind, constitutes a prima facie case against the Appellant.

The learned trial Judge at page 352 of the records, threaded with caution by acting within the confines of the guiding principles of a no case submission when he held that:
“…Therefore the honourable Court will not pronounce on the merits or otherwise of the available evidence in this case as learned defence counsel from paragraphs 4.02 to 4.21 of their No Case Submission has called upon this honourable Court to do. This is based on the principle enunciate by the Supreme Court in AGBO & ORS V. STATE (supra) that in considering a submission of no case to answer, it is not necessary at that stage, to determine whether the evidence is sufficient to justify conviction, the Court only has to be satisfied that there is prima facie case required at least some explanation from the accused person. In other words, that something has been produced to make it worthwhile to continue with the proceedings.
Having gone through the evidence of PW1 and PW3 and exhibits tendered by the prosecution in this case, which connected the accused with the offences charged and which has not been discredited under cross examination, the issue proposed by learned prosecuting counsel i.e. whether the prosecution has made out a prima facie case against the accused person to warrant his being called upon to make a defence is resolved in their favour. I agree with the submission of learned prosecuting counsel that the prosecution has made out a case against the accused person sufficiently to require him to make a defence.”

I agree with the reasoning of the learned trial Judge that the Appellant has some explanations to make in his defence to the charges before him. This is an interlocutory appeal. It is not permissible in law at this stage that any comments be made on the merits of the substantive case that is yet to be heard. In précis, I see no reason to deviate from the decision of the learned trial Judge as a prima facie case was really made out by the Respondent against the Appellant. I affirm the decision of the trial Judge overruling the no case submission.

In the final result, I find no merit in this appeal. This appeal fails and is hereby dismissed. The Ruling of the Enugu State High Court delivered on 28th May 2019 in Charge No: E/95C/2011 overruling the no case submission of the Appellants is hereby upheld. I affirm the finding of the trial Court that the Appellant has a case to answer in respect of charges proffered against him. It is hereby ordered that the Appellant shall enter his defence to the charges against him.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.
I equally hold that the appeal has no merit and it is accordingly dismissed.
I adopt the consequential orders in the lead judgment as mine.

Appearances:

NNAEMEKA J. J. OKEKE ESQ. For Appellant(s)

FORTUNE AMINA I. ASEMEBO ESQ. For Respondent(s)