OLADELE OGUNDEJI v. THE STATE OF LAGOS
(2018)LCN/12155(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of November, 2018
CA/L/411C/2018
RATIO
COURT AND PROCEDURE: WHERE A CASE IS MADE PRIMA FACIE
“This is why where even if a prima facie has been made out against a Defendant, he may yet at the end of the trial still be discharged and acquitted if the Prosecution failed to prove its case against him beyond reasonable doubt as required by law, notwithstanding the fact that at the close of its case it made out a prima facie case against him. In other words, prima facie case is not synonymous with proof beyond reasonable doubt. See Ubanatu V. COP (2001) 22 ACLR 312 @ p. 335. See also Ajidagba V. IGP (1958) 3 FSC 5 @ p. 6; Ajiboye V. The State (1995) 8 NWLR (Pt. 414) 408.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
EVIDENCE: WHERE TWO PIECES OF EVIDENCE CONTRADICTS
“Also in Bassey V. The State (2012) All FWLR (Pt. 633) 1816 @ p. 1832, what amounts to substantial contradiction in evidence was explained thus: ‘One evidence contradicts another evidence when it says the opposite of what the other evidence has stated and not when there is just minor discrepancy between them. Two pieces of evidence contradicts one another when they are themselves inconsistent on material facts.’ See also Godwin Igabele II V. The State (2007) 2 NCC 125; Odi V. Iyala (2004) 8 NWLR (Pt. 875) 283; Elewuju V. Onisaodu (2000) 3 NWLR (Pt. 647) 95.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
EVIDENCE: ON CONSIDERATION OF NO CASE SUBMISSION
“This stage is not the time to ponder and resolve difficult questions of law and facts in the substantive trial at a stage when the issue of credibility, weight and ascription of probative value to admitted evidence does not arise for consideration. The parties must keep their gun powder dry until when the time comes for the releasing of those arsenals of submissions of law and facts at the closing address at the conclusion of trial before the Court below. So much energy was dissipated on issues that have nothing to do with a consideration of a no case submissions and that ought not to be so since the kernel of a no case submission, which is within a very narrow compass, as enunciated and widely pronounced upon by the Courts should no longer pose any recondite issue in criminal trials and appeals.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
JUSTICES
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
OLADELE OGUNDEJI Appellant(s)
AND
THE STATE OF LAGOS Respondent(s)
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the Ruling of the High Court of Lagos State, Ikeja Judicial Division; Coram: L. B. Lawal – Akapo J., in Charge No. ID/1759C/2015: The State of Lagos V. The Registered Trustees of Synagogue Church of All Nations & Ors., delivered on 8/3/2018, in which the Appellant’s no case submission was refused and dismissed.
The Appellant, the 4th Defendant at the Court below, was dissatisfied with the said ruling of the Court below, had filed his notice of appeal on 22/3/2018 on four grounds. See pages 571- 573 of the record of appeal. The records of appeal were duly transmitted to this Court. The Appellant’s brief was settled by Olalekan Ojo SAN and filed on 20/6/2018. The 1st Respondent’s brief was settled by Mrs. T. K. Shita – Bey, learned DPP, Ministry of Justice, Lagos State and filed on 13/9/2018 but was deemed properly filed on 8/11/2018.
At the hearing of this appeal on 8/11/2018, Olalekan Ojo SAN, learned Senior Advocate for the Appellant, appearing with R.M. Bature Esq., and Adebayo Adedokun Esq., adopted the Appellant’s brief as their arguments in support of the appeal and urged the Court to allow the appeal, set aside the ruling of the Court below and discharge the Appellant. On their part, Mrs. T. K. Shita – Bey, learned DPP, Ministry of Lagos Justice, Lagos State for the Respondent, appearing with Y. D. Oshoala Esq., Director, A. Haroun Esq., Assistant Director, Y. A. Sule Esq., PSC., and Mrs. Bola Akinsete, PSC, adopted the Respondent’s brief as their arguments in opposition to the appeal and urged the Court to dismiss the appeal and affirm the ruling of the Court below.
By an Information filed on 11/9/2015, the Appellant was charged along with four others in Count 1 with failure to obtain approved building plan for the construction of the building which collapsed on 12/9/2014 contrary to Section 75 of Urban and Regional Planning and Development Law, No. 31, Laws of Lagos State 2010. In Count 2 – 111, the Appellant and three others were each and jointly charged with involuntary manslaughter of 110 named persons on 12/9/2014 in the collapsed building of the SCOAN at Ikotun/Egbe, Lagos State contrary to Section 222 of Criminal Code, Law No. 11, Laws of Lagos State 2011. See pages 9 – 49 in Vol. I of the records of appeal.
BRIEF STATEMENT OF FACTS
According to the case as put forward by the Respondent as Prosecution before the Court below through its witnesses, PW1, Engr. (Dr.) Victor Oyenuga; PW2, Dr. Olutoyin Ayinde; PW3, Mr. Adebayo Musiliu; PW4, Mr. Adesola Babatunde Basir; PW5, Prof. John Oladapo Obafunwa; PW6, Rafiq Olubukola Arogunjo; PW7, Engr. Fadayomi Oreoluwa and PW8, Mr. Gubbi Linus and tendered several documents numbering 18 but admitted in evidence as Exhibits P1 – P14, on 12/9/2014, a 7 – storey building of the SCOAN situate at Ikotun/Egbe, Lagos suddenly collapsed and a good number of people, numbering about 116 person lost their lives and several others numbering about 131 person were injured. The Lagos State Government immediately set up a Coroner Inquest to look into the immediate and remote causes of the collapse.
The Coroner later delivered his verdict and recommended criminal trial against the Appellant and others for the construction of the collapsed building. Subsequently, on 30/11/2015, the Appellant, being one of the firms allegedly involved in the construction of the collapsed building as well as three others was arraigned before the Court below on a 111 Count Charge. They each pleaded not guilty. The Appellant was charged along with four others in Count 1, alleging failure to obtain approved building plan for the construction of the building which collapsed on 12/9/2014 contrary to Section 75 of Urban and Regional Planning and Development Law, No. 31, Laws of Lagos State 2010. However, in Counts 2 – 111 the Appellant was jointly charged with three others with involuntary manslaughter of 110 named persons on 12/9/2014 in the collapsed building of the SCOAN at Ikotun/Egbe, Lagos State contrary to Section 222 of Criminal Code, Law No. 11, Laws of Lagos State 2011.
At the close of the case for the Respondent on 13/7/2017, the Court below adjourned the case to 5/10/2017 for defense. However, the Appellant made an application by way of no case submission contending that the Appellant has no case to answer. In other words, that the Respondent failed to make out any prima facie case against the Appellant on all the 111 Counts to warrant the Appellant entering upon his defense.
The parties filed and exchanged written addresses, which were duly adopted on 13/7/2017 and on 8/3/2018, the Court below in its ruling overruled the Appellant’s no case admission and called upon him to enter upon his defense, hence the appeal to this Court by the Appellant. See pages 222 – 229, 231 – 245, 246 – 248, 250 – 253, 255 – 259, 261 – 264, 266 – 282 and 283 – 293 in Vol. I of the record of appeal. See also 476 – 483 and 484 – 570 in Vol. II of the record of appeal.
ISSUES FOR DETERMINATION.
In the Appellant’s brief, two issues were distilled as arising for determination from the four grounds of appeal, namely:
1. Whether the Court below was right in holding that the issues of non – compliance with the conditions precedent to the initiation of criminal proceedings against the Appellant in respect of the Count 1 and the failure of the Prosecution to give evidence of the identity of each of the deceased persons named in the 2 – 111 Counts in the information are not issues that the trial Court can determine when considering the Appellant’s no case submission? (Distilled from grounds 2 & 3)
2. Whether the Court below was right in overruling the submission of the Appellant that at the close of the case of the Prosecution, the Respondent had not made out a prima facie case against the Appellant sufficient to warrant the Appellant being called upon to enter his defense to the Charges preferred against him, having regard to the evidence on record and the allegations of facts contained in the information filed against the Appellant? (Distilled from ground 1 & 4)
In the Respondent’s brief, two issues were distilled as arising for determination in this appeal, namely:
1. Whether upon a calm and dispassionate view and considering the overwhelming nature and character of the prosecutorial evidence, the trial Court was right to dismiss the Appellants? submission of no case?
2. If the answer to issue one above is yes, then whether a prima-facie case has not been established against the Appellants to make some explanations?
I have given due consideration to the facts and circumstances of this case as can be seen in the volumes of the records of appeal as touching on the offences under Counts 1 – 111 with which the Appellant was charged and the evidence, both oral and documentary, as led by the Respondent at the trial. I have also calmly reviewed the submissions of learned counsel in their respective briefs in the light of the decision of the Court below dismissing the Appellant’s no case submission and thereby calling upon the Appellant to enter upon its defence to the charge against it, the Respondent having, in the findings of the Court below, made out a prima facie case against the Appellant.
Upon an anxious consideration of all the above, I am of the view that the only apt issue, for determination in this appeal, considering the stage of the proceedings before the Court below and the nature of the application by the Appellant leading to this appeal, is issue two as distilled in the Appellant’s brief, a consideration of which, in my view, would involve the consideration of issue one as distilled in the Appellant’s brief as well as issues one and two as distilled in the Respondent’s brief. Consequently, issues one and two in the Appellant’s brief is hereby adopted and set down as the sole issue for determination in this appeal.
SOLE ISSUE
Whether the Court below was right in overruling the submission of the Appellant that at the close of the case of the Prosecution, the Respondent had not made out a prima facie case against the Appellant sufficient to warrant the Appellant being called upon to enter his defense to the Charges preferred against him, having regard to the evidence on record and the allegations of facts contained in the information filed against the Appellant?
APPELLANT’S COUNSEL SUBMISSIONS
On his issue one and two, argued together, learned Senior Advocate for the Appellant had submitted that in law a submission of no case to answer can be properly made and upheld where there is no evidence led by the prosecution to prove an essential element of the offence charged, and/or when the evidence led by the prosecution has been discredited during cross-examination or is so manifestly unreliable that no reasonable Court or Tribunal could safely convict on it and contended that the Court below was in error when it contrary to these laid down principles held that the Appellant has a case to answer when the led were not only insufficient but were also discredited by cross examination and rendered unreliable that not reasonable Tribunal could convict the Appellant on it and urged the Court to allow the appeal, set aside the perverse ruling and discharge the Appellant.
Learned Senior Advocate relied on Atoyebi V. FRN (2018) 5 NWLR (Pt. 1612) 350 @ p. 361; Ibeziako V. Commissioner of Police (1963) 1 SCNL.R 99; Adeyemi V. State (1991) 6 NWLR (Pt. 195) 1; Owonikoko V. The State (1990) 7 NWLR (Pt. 162) 381; Ekwunugo V. FR.N (2008) 7 SCNJ 241 at 242; (2008) 15 NWLR (Pt. 11111) 630; Emedo V. State (2002)7 SC NJ 22G; (2002) 15 NWLR (Pt. 739) 196; R. v. Baker (1999) 2 CR APPR 335; Bello v. The State (1967) NMLR 1; Fagoriola V. FRN (2013) 6 – 7 SC (Pt. IV) 59; Tongo V. COP (2007) 12 NWLR (Pt. 1049) 525; Ekwunugo V. FRN (2008) 15 NWLR (Pt. 111)30; FRN V. Martins (2012) 14 NWLR (Pt. 1320) 287; Daboh V. The State (1977) All NLR 146; Ajiboye V. State (1995) 8 NWLR (Pt. 414) 406; Okoro V. State (1988) NWLR (Pt. 94)255; Adeyemi V. The State (1991) 6 NWLR (Pt. 448) 270; Suberu V. The State (2010) 1 NWLR (Pt. 1176) 494.
It was further submitted that the Appellant raised several issues of the prematurity of the initiation of criminal proceedings against the Appellant in respect of count one of the information on the ground that the Prosecution had not complied with the conditions precedent to the institution of criminal charge for violation of Section 75 of the Urban and Regional Planning and Development Law No 3, Laws of Lagos State 2010 and the failure of the Prosecution to adduce evidence of the identity of each of the person who allegedly died in the incident but the Court below instead of pronouncing on these issues held that the said issues cannot be determined at the stage of consideration of a no case submission but in the substantive trial and contended that the issue of non – compliance with the provision of Section 75(a) of the Urban and Regional Planning and Development Law 2010 is a preliminary issue which raises issue of non-compliance with conditions precedent to the competence of Count 1 and by necessary implication the jurisdiction of the Court below to entertain Count 1 dealing with the offence of failure to obtain building permit or approval before commencing the construction of the seven-storey building referred to in count one and urged the Court to hold that Count 1 was incompetent and thus liable to be struck out and to strike same out. Learned Senior Advocate relied on Eyoro Koromo V. The State (1979) 6 – 9 SC 3 @ p. 9.
It was also submitted that the identity of the persons that allegedly died in the incident of 12/9/2014 as in Count 2 ? 111 constitutes one of the ingredients or elements of the offence of involuntary manslaughter and contended the Court below did not make any finding to the effect that the identity of the persons named in Counts 2 – 111 two to one hundred and eleven as having died in the building collapse is not an ingredient or element of the offence of involuntary manslaughter and contended that by the plea of not guilty to the Counts 2 – 111, the Appellant joined issues with the Respondent in respect of all the allegations of facts spelt out in the information, including the identity of each of the persons alleged to have died in the charge and urged the Court to hold that in the absence of such evidence no prima facie case was made out against the Appellant and to allow the appeal, set aside the ruling of the Court below and discharge the Appellant. Learned Senior Advocate relied on Msughaudo V. State (1980) 2 NCR 23 @ p. 32.
On issue two it was submitted that the Appellant’s no case submission predicated on the ground that the preferment of Count 1 was premature by reason of the failure of the Prosecution to comply with Section 75 of the Urban and Regional Planning and Development Law No 3 Laws of Lagos State 2010 and the failure of the Prosecution to adduce evidence to establish the mental element of the Appellant to be criminally liable for the offences alleged under Counts 1 – 111 had merit and ought to have been upheld by the Court below and urged the Court to so hold and allow the appeal, set aside the ruling of the Court below and discharge the Appellant.
It was further submitted that in law in a joint trial of several Defendants, the Prosecution is enjoined to adduce evidence of the specific acts of each of the Defendants and contended that in such trial evidence against each of the Defendants must be considered separately and the Court must make separate pronouncements in respect of the evidence led against each of the Defendants and contended that the evidence led by the Prosecution fell far short of establishing the essential elements of the offence of manslaughter in Counts 2 – 111 and or link the Appellant to any of the offences charged and therefore, no prima facie case having been made out against the Appellant, he was entitled to be discharged and urged the Court to so hold and to discharge the Appellant. Learned Senior Advocate referred to Section 222 of the Criminal Law, No. 11, Laws of Lagos State, 2011 and relied on Ajiboye & Anor V. State (1995) 8 NWLR (Pt. 414) 473 @ p. 487.
RESPONDENT’S COUNSEL SUBMISSIONS
By way of preliminary submissions, learned DPP for the Respondent had submitted that the charges alleged against the Appellant in Count 1 was properly laid under the general punishment provision of the law and was thus very clear and unambiguous and contended that the evidence led in proof showed as alleged that the Appellant and the other Defendants constructed the collapsed 7 storey building without the required planning/building permits and approvals in line with the provisions of the Urban and Regional Planning Law and urged the Court to hold that the statement and particulars as laid out in the charge constitutes an offence known under the law the Appellant was charged and urged the Court to hold that in law the constitutional powers of the Attorney General to institute criminal proceedings cannot be hindered by any law or statute and in any event, Section 75 of the Urban and Regional Planning Law does not contain any pre – condition that could impede the powers of the Attorney General to institute criminal proceedings in the Court below.
Learned DPP referred to Section 75 (1) of Urban and Regional Planning Development law of Lagos State and relied on Olatunbosun V. State (2013) 17 NWLR (Pt. 1382) 167; Okpa V. State (2017) LPELR – 42205(SC).
It was also submitted that all the other issues raised were extraneous to the determination whether or not a Defendant has a case to answer and whether or not the Court below was right when it overruled the Appellant’s no case submission and called upon it to enter upon its defense to the charges against it and contended that at the stage of a no case submission the Court is concerned with the prosecutorial evidence alone, whether it is sufficient to require an answer from the defense and urged the Court to overrule all the extraneous submission of the Appellant’s counsel going to no issue in this appeal and to determine the real issue involve in this appeal which is whether or not the Prosecution made out a prima facie case against the Appellant on the Counts 1 – 111.
Learned DPP relied on Ubanatu V. COP (2000) 2 NWLR (Pt. 643) 141; Aituma V. State (2006) 10 NWLR (Pt. 989)452; Abru V. State (2011) 17 NWLR (Pt. 1275) 1; Igabele V. State (2004) 15 NWLR (Pt. 896) 314; Emedo V. State (2002) 15 NWLR (Pt. 789) 196; Aituma V. State (2007) 5 NWLR (Pt. 1028)466; Suleiman V. State (2009) 15 NWLR (Pt. 1164) 258; Ibeziako V. COP (1963) 1 SCNLR 99; Suberu V. State (2010) 1 NWLR (Pt. 1176) 494.
On her issue one, learned Director of Public Prosecution, Lagos State had submitted that the prosecutorial powers of the Hon. Attorney General of Lagos State to institute or undertake any criminal matter is constitutionally provided for and the offence under which the Appellant is charged forms the same transaction as that of the other Defendants and contended that in law in the circumstances revealed by the facts of this case it was permissible to charge all the Defendants together as was properly done before the Court below. Learned DPP referred to Section 151 of the Administration of Criminal Justice Law of Lagos State, 2011 and relied on Ajudua V. FRN (2018) LPELR – 43923(CA).
It was further submitted that the jurisdiction of the High Court of Lagos State is exclusive as it relates to criminal proceedings and contended that the submission by the Appellant that the Court below lacks the jurisdiction to try the offence in which the Appellant is charged is misplaced and unfounded, coupled with the failure of the Appellant?s counsel to rely on any authority or legislation which expressly precludes the High Court from trying indictable offences especially as it relates to a joint trial of an accused person and urged the Court to discountenance it. Learned DPP referred to Section 272 (1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) and relied on Adoki V. COP (2013) LPELR – 21191(CA); Adisa V. Oyinwola (2000) 10 WLR (Pt. 674) 116.
It was also submitted that Count one is properly laid under Section 75 of the Urban and Regional Planning Law which created the offence emanating from failure to comply with the relevant provisions and the elements of which offence was satisfied by the evidence of PW2, who stated emphatically that the records at the disposal of the Government of Lagos State showed that there was no approval on the building that collapsed and led to the dead of a over one hundred persons and contended that the Count one to which the Appellant as well as the other Defendants were charged, he was not misled as he clearly understood and pleaded not guilty to it and urged the Court to hold that in law no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by error or omission. Learned DPP relied on Mohammed V. The State (2012) LPELR- 9694 (CA).
It was also further submitted that in law the parameters for a no – case submission are very narrow in that at that stage the Court is concerned with only the prosecutorial evidence alone as to whether or not it is sufficient to require an answer from the defense and contended that a consideration of and decision on a no – case submission does not include ascribing probative value to the prosecutorial evidence and urged the Court to hold that the Court below was right when upon an appraisal of the evidence it held that the Respondent had led sufficient evidence and disclosed a prima facie case against the Appellant on Count one for which it ought to enter upon its defense. Learned DPP referred to Section 239 of the ACJL and relied on Ubanatu V. COP (2000) 2 NWLR (Pt. 643) 141; Aituma V. State (2006) 10 NWLR (Pt. 989) 452; Abru V. State (2011) 17 NWLR (Pt. 1275) 1; Igabele V. State (2004) 15 NWLR (Pt. 896) pg. 314; Emedo V. State (2002) 15 NWLR (Pt. 789) 196; Aituma V. State (2007) 5 NWLR (Pt. 1028) 466; Suleiman V. State (2009) 15 NWLR (Pt. 1164) 258; Ibeziako V. COP (1963) 1 SCNLR P. 99; Suberu V. State (2010) 1 NWLR (Pt. 1176) 494.
It was further submitted that a decision on a no case submission need not be lengthy but should be brief, particularly where it is to be overruled, since in a no – case submission, the Court is not determining the guilt or innocence of the, Appellant in this case in that the trial of the case has not yet been concluded for the issue of proof beyond reasonable doubt or the innocence of the Defendant to be determined and urged the Court to hold that the Court below rightly approached the issue of no case in the proper manner allowed by law and came to the correct decision that the Appellant has a case to answer and to dismiss the appeal and affirm the ruling of the Court below.
Learned DPP referred toSection 239 of ACJL 2011 and relied on FRN V. Martins (Supra); Abru V. State (Supra); Suberu V. State (Supra); Aituma V. State (Supra); Igabele V. State (Supra); Emedo V. State (Supra); Suleiman V. State (Supra); Ubanatu V. COP (Supra), Ibeziako V. COP (Supra); State v. Ajuluchukwu (Supra); Ikomi V. State (1989) 3 NWLR (Pt. 28) 240; Chianugo V. State (2002) 2 NWLR (Pt. 750) 225; Tongo V. COP (2007) 12 NWLR (Pt. 1049) 525; Shatta V. FRN (2009) 10 NWLR (Pt. 1149) 403; FRN V. Martins (2012) 14 NWLR (Pt. 1320) 287; Ohuka V. The State (No. 2) (1988) 4 NWLR (Pt. 86) 36.
It was further submitted that a look at the evidence led by the Respondent through PW1 – PW8 as was done by the Court below reveal that there were sufficient evidence corroborated by other pieces of evidence from these witnesses linking the Appellant directly to the offences charged in Count 1 ? 111 as found rightly by the Court below and contended that since in law at the stage of a no case submission the issue of conviction was not up for consideration, there was no duty on the Court below to ascribe probative value to the prosecutorial evidence as submitted by the Appellant and urged the Court to hold that on the totality of the evidence led by the Prosecution the Appellant as rightly found by the Court below has a case to answer on Count 1 – 111 and should be call upon to enter into his defense he so desire and give some explanations as required of him by law.
RESOLUTION OF SOLE ISSUE
My Lords, a consideration of the sole issue as to the constituent elements of the offences with which the Appellant was charged vis a vis the evidence led in proof thereof by the 1st Respondent in the light of the Appellant’s application for no case submission would involve the interpretation of the provisions of Section 75(1) of the Urban and Regional Planning and Development Law, Section 222 of the Criminal Law, Laws of Lagos State 2011 and Section 239 of the Administration of Criminal Justice Law of Lagos State 2011.
Now, by Section 75 (1) of the Urban and Regional Planning and Development Law, it is provided thus:
“Any person who contravenes the provisions of this Law and Regulations made pursuant to this Law is guilty of an offence and shall be liable on conviction to a fine not exceeding the Sum of Two Hundred and Fifty Thousand Naira or one month of community service or both.”
However, by Section 239 ACJL of Lagos State 2011, it is provided thus:
“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 defense, the Court shall as to that particular charge discharge him.”
My Lords, while the main thrust of this appeal is the issue of when a Court can either uphold or overrule a no case submission and whether on the peculiar facts and circumstances of this case as disclosed in the evidence of the Prosecution witnesses the Court below was right or wrong when it held that the 1st Respondent made out a prima facie case against the Appellant on Counts 1 – 111 for which he should enter upon its defense, yet the Appellant had raised a myriads of other issues which, touching on the competence or otherwise of Count one, shall be considered first in this judgment and resolved one way or the other before if need be the main issue in this appeal, dealing with the Appellant’s no case submission, shall be considered and resolved, should Count one be found to be valid. In law competence is the soul and spirit of adjudication, whether in civil or criminal proceedings in the Courts. See Madukolu V. Nkemdilim (1962) 2 SCNLR 341. See also Efiok V. Govt. of Cross Rivers State(2011) All FWLR (Pt. 593) 1993 @ p. 2003.
Now, one of the major reforms of the new regime of the system of administration of criminal justice in Lagos State is the provision of the law limiting the time for raising objections bordering on validity of a charge or information before the Court. Thus, a Defendant may raise any objection to the validity of the charge or information at any time before Judgment provided however, any such objection, except as it relates to the jurisdiction, shall only be considered along with the substantive issue and the ruling thereon made at the time of delivery of the Judgment. It follows therefore, that objections shall not be taken or entertained by the Court during trial on the ground that the charge is imperfect or erroneous, which is now intended to checkmate frivolous preliminary objections that had hitherto littered the paths of criminal trials with unwanted thorns. See Fabian Obodo V. The State (2016) LPELR 40939(CA).
The first port of call in the consideration of the myriads of issues raised as by way of challenge to the validity or competence of Count one ought therefore, to have been the Court below in a proper application to that effect by the Appellant. However, I have considered the submission that the offence as laid in Count 1 is incompetent for failure to serve notice of contravention on the Appellant. In my finding, having considered the submissions of both counsel, Count 1 does not require any proof of service of notice of contravention to be competent as in my view that would rather go to the issue of proof beyond reasonable doubt of the of the offence alleged under Section 75 of the law. It is thus an issue completely irrelevant at the stage of considering a no case submission. It must await a consideration of proof of the alleged offence beyond reasonable doubt, which can only arise at the conclusion on of the substantive trial before the Court below.
I cannot but agree with the submission of the learned DPP, since nothing by way of legislation and or settled principles of law in judicial authority has been shown to the contrary by the Appellant, that in law the constitutional powers of the Attorney General to institute criminal proceedings cannot be hindered by any law or statute. I hold therefore, that there is nothing in Section 75 of the Urban and Regional Planning Law amounting to any pre – condition that could impede the exercise of the powers of the Attorney General to institute criminal proceedings in the Court below against the Appellant. See Section 75 (1) of Urban and Regional Planning Development Law of Lagos State. See also Olatunbosun V. State (2013) 17 NWLR (Pt. 1382) 167; Okpa V. State (2017) LPELR – 42205(SC).
I have looked at the provisions of Section 75(1) of the Urban and Regional Planning and Development Law and Section 222 of the Criminal Code Law, Laws of Lagos State, by which provision the offences charged under Count 1 – 111 were laid and I find that they were properly laid against the Appellant upon compliance with all due process and conditions precedent and the question of whether they have been proved beyond reasonable doubt or not or would succeed or not is not an issue for determination at the stage of a no case submission. That is all the law requires that an offence and its punishment must be prescribed by a written law.
I therefore see no merit in all the Appellant’s submissions that the offence charged under Count one is incompetent when it was laid in line with the provisions of Section 75(1) of the Urban and Regional Planning and Development Law. Consequently, I hold that Counts 1- 111 are all valid.
Having deeply pondered over all the myriads of other issues as raised by the Appellant, I am minded to agree with the submission of the learned DPP that at the stage of consideration of a no case submission the issue of notice of contravention not raised by way of objection to the charge at the time plea was taken is truly not an issue for consideration under a no case submission and at any rate by Section 75 (1) of the Urban and Regional Planning and Development Law under which Count 1 was laid there is no provision of such condition precedent of notice of contravention. At this stage of consideration of the Appellant?s no case submission the only real, proper and relevant issue is whether or not a prima facie case has been made out against the Appellant by the 1st Respondent and not whether or not the 1st Respondent has proved its case beyond reasonable doubt as would warrant at this stage the conviction of the Appellant.
My Lords, having resolved all the myriads of issues challenging the validity of Count 1 on the one hand and Count 2 – 111 on the other hand, and affirming the jurisdiction of the Court below to entertain the charges against the Appellant, I hold that Counts 1 – 111 are all valid and the Court below has the requisite jurisdiction to entertain it along them as laid in the information, let me now proceed to consider the main thrust of this appeal, which is the ruling of the Court below overruling the Appellant’s no case submission and calling on him to enter upon its defense.
In considering a no case submission, the position of the law is that where at the close of the Prosecution’s case, evidence has not been led in support of all or any of the essential elements of the offence with which a Defendant was charged, such a Defendant is said to have no case to answer and ought to be discharged at that stage without being called upon to enter upon his defense or make any explanation as that would amount to calling on the Defendant to prove his innocence. SeeIbeziako V. COP. (1963) 1 All NLR 61 @ pp. 68 – 69, where the Supreme Court per Ademola, CJF., 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; (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 convict on it.”
See also Dr. Olu Onagoruwa V. The State (1993) 7 NWLR (Pt. 303) 49; Ubanatu V. COP (2000) 1 SC. 31; Omisore V. State (2004) 28 WRN 106; Ekwunugo V. FRN (2008) 15 NWLR (Pt. 111) 630; Practice Direction of Lord Parker Lord Chief Justice of England in 1962 1 All ER 227
In our system of administration of criminal justice a Defendant, who is constitutionally presumed innocent until the contrary is proved, carries no duty in law to prove his innocence and therefore, where the Prosecution fails to make out any prima facie against him he is entitled to be discharged without much ado by the Court. This is also the position where at the close of the Prosecution?s case, the evidence led by the Prosecution has become so discredited as a result of cross examination or is so manisfestly unreliable that no reasonable Tribunal can safely convict on it. See Onagoruwa V. The State (1993) 7 NWLR (Pt. 303) 49. See also The State V. Bello (1989) CLRN 370.
In law therefore, to make out the essential elements of an offence is to make out a prima facie case against a Defendant for which he shall be called upon to defend himself on the charges against him. This simply implies that once at the close of the Prosecution’s case it is found or shown that no prima facie case has been made out against the Defendant, he shall at that stage be discharged and acquitted as there would be no basis for proceeding any further with his trial. See Chianugo V. The State (2002) 12 NWLR (Pt. 750) 228 @ p. 233.
My Lords, what then is a prima facie case in law? A prima facie case has been defined generally to mean such as will prevail until contradicted or over come by other evidence. A prima facie case is thus a case in which there is evidence which suffices to support the allegation made in it and which will stand unless there is evidence to rebut the allegation. In Duru V. Nwosu (1989) 1 NWLR (Pt. 113) 24 @ p. 43, Nnamani JSC (God bless His soul) had succinctly defined prima facie thus:
“It seems to me the simplest definition is that which says that there is ground for proceeding. In other words, that something has been produced to make it worth while to continue with the proceedings. On the face of it, it suggests that the evidence produced so far indicates that there is something worth looking at.”
See also Blacks Law Dictionary, 9th Edition @ p. 1159. See also Osborn’s Concise Law Dictionary, 8th Edition by Rutherford & Bone @ p. 259.
In Emedo V. State (2002) 15 NWLR (Pt. 789) 196, it was stated inter alia thus:
“It is the judge’s duty however, in a submission of no case to answer is made to discharge an accused where the evidence adduced by the prosecution does not disclose the necessary minimum evidence establishing the facts of the crime charged, in doing so, the Judge does not write a ‘Judgment’, it is not the judge’s job, at that stage, to weigh and evaluate evidence or decide who is telling the truth or who is lying and he is not to conclude that what the prosecution has adduce is unreliable? If a submission of no case is made, it is the judge’s duty not only to consider whether there is some scintilla of evidence which in law would lead to conviction, but also whether it would be safe to convict on the evidence as it stand?. A submission of no case to answer may properly be upheld: a; When there has been no evidence to prove an essential element in the alleged offence and 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.
The decision to uphold or reject the submission should not depend upon whether the adjudicating Tribunal would at that stage convict or acquit, but upon whether the evidence is such that a reasonable Tribunal might convict? Although those considerations were expressed to be for the guidance of judges during criminal trials it is clear that they are of general applicability.”
And in Ikomi V. State (1986) 3 NWLR (Pt. 28) 340, it was reiterated inter alia thus:
“Prima Facie, means on the face of it. The true meaning of a prima facie case has been explained by Hubbard, J, in his judgment in Regina V. Coker and Ors. (1952) 20 NLR 62 where he held that a submission that there is no case to answer meant that there was no evidence on which the Court could convict ‘even if the Court believed the evidence given.'”
So also in Ugbede Ali V. State (2012) 10 NWLR (Pt.1309) @ p. 589, this Court had added its voice to this issue inter alia thus:
“There is no doubt and the law is trite as enunciated by Ba’Aba, JCA, in Gwandu vs. Kebbi State (supra,); that trial Courts should not delve into the substantive case at interlocutory stage because if the Court is allowed to revisit the substantive issue at any stage of the trial, it would tantamount to the Judge sitting on appeal on his earlier decision on the substantive matter thereby outraging the sense of justice of an independent dispassionate observer sitting in Court.”
Having reiterated the principles applicable in considering a no case submission and having also set out the provisions of the Law under which the Appellant was tried under the Count one as charged by the Respondent, what are the evidence in support of the essential elements of the offences charged and were the essential elements made out at least on a prima facie basis against the Appellant? Was the evidence led by the Respondent through PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8 so discredited under cross examination or so manifestly unreliable as would support a no case submission as contended by the Appellant in this appeal to render the decision of the Court below perverse and thus liable to be set aside by this Court in this appeal?
At the trial before the Court below, the Respondent called eight witnesses who testified as PW1 – PW8 and since it is only these pieces of evidence led through these witnesses that are relevant to the resolution of the sole issue for determination in this appeal as to whether or not the Respondent made out a prima case against the Appellant at the close of the prosecution’s case as would require the Appellant to enter upon its defence to the charge against it, I shall take the liberty to set out in detail the evidence of these witnesses for the purpose of proper focus and analysis in this judgment.
PW1 was one Dr. Victor Olusegun Oyenuga. He stated inter alia that he is a COREN Registered Engineer and that he knows the Synagogue Church of all Nations’ building that collapsed. He is a member of Committee of professionals set up by Council of Registered Engineers (COREN) to determine the fitness of the foundation of the building and it was discovered that the area of the base needed is bigger that what was provided and that the supper structures were undersized in terms of quantity of iron rods used in the beam, which might have led to the collapse of the building. He was cross examined.
PW2 was one Adedamola Ayinde. He is a registered Town Planner and a Consultant Urban Planner. He stated inter alia that he was aware of the collapse of Synagogue Church of All Nations building on 12/9/2014, which was a Friday and that he moved the various State agencies to the site for rescue operation. He saw approval for 5 floors but by the time the building collapsed, it has gone up to 6 floors. The approval was no longer valid. The collapse building was not registered. He visited the site of the collapse on Sunday two days after the collapse and that the collapsed building has no approval. He was cross examined.
PW3 was one Musiliyu Olayimika Adebayo. He is a retired Chief Fire Officer for Lagos State. He stated inter alia that on 12/9/2014, one Mr. Eze called the Lagos State Fire Service, Alausa, Ikej, Lagos to report the collapse of synagogue building at Ikotun but they could not enter the site as the Church Personnel were hostile until the next day when the Governor, Raji Fashola came and appealed to the Church Personnel and about 131 persons were rescued alive while 80 dead bodies were recovered. When they got to the scene on Friday 12/9/ 2014, they left the following Thursday after staying for 7 days and the slaps collapsed on each other like pack of cards. He partook in the rescue operation. He was cross examined.
PW4 was one Adesola Babatunde Kabir. He is a Civil Defense Officer attached to Disaster Unit of LASEMA. He stated inter alia that at 12 noon his office received a distress call of collapse of Synagogue building and the team got to the collapse site at 1.30 pm. He found that 6 storey building had collapsed and he was there on Friday 12th through Sunday 14/9/2014. His team was able to rescue 131 persons alive and 86 dead bodies. The rescue Operation ended on 18/9/2014 and the Team went back to their duty posts. He saw that the building collapsed, some people were trapped, some died and some alive and his Team brought out both the living and the dead and those alive were taken to the Hospital while those that were dead were taken to the mortuary. They had to use cutter to cut the iron barricade in order to access the victims underneath the rubbles. He was cross examined.
PW5 was one Prof. John Oladapo Obafunwa. He is a professional Pathologist. He stated inter alia that various dead bodies from the site of the collapse were deposited in various mortuaries in Lagos. 7 corpses were deposited in LASUTH. He conducted the autopsy on the bodies deposited at LASUTH on 23/9/2014. It was a Team work and he was assisted by Forensic Experts from South Africa. Other bodies in other Mortuaries were handled by some other group of experts. Some of the samples taken were sent to South for Africa for DNA and that 110 victims out of 116 were identified. He testified that the causes of death to be categories into 6 categories namely: 1; Death resulted from multiple injuries. E.g. Skull or Limb fractures. About 56 fell into this category; 2, Traumatic Asphysia – Insufficient oxygenation, about 19 bodies fell into this category – the victims are unable to breath.; 3, Exsanguinations – severe blood lost, about 19 victims, 4, Severe Fracture of the skull and crushing of the brain issue, about 12 victims; 5, Congested heart failure, the victim that died 7 days after fell into this category and 6, Accumulation of blood in the chest cavity – Haemothoras, about 19 victims. The 116 victims were issued with Death Certificates.
He was cross examined by only the Appellant’s counsel.
PW6 was one Rafiq Olubukola Arogunjo. He is an officer of Nigerian Air Space Management Agency (NAMA). He stated inter alia that on 12/9/2014, he was in the office conducting training exercise between 10.51 and 12.33 pm. During that range of time there was no problem with the flight being used and it landed safely. Two days later he heard of the collapsed building. On playing the radar, he discovered that the aircraft never flew over the collapsed building as it was over half a mile away from the collapsed building. He was cross examined.
PW7 was one Engineer Oreoluwa Fadayomi. He is a member of a non Government Organization consisting of professionals called Building Collapse Prevention Guild (BCPG). He stated inter alia that he was the structural Engineer to the Technical Committee set up by BCPG to the collapse of the 7 storey building belonging to Church. Upon analysis, he discovered that there were rigid or stone point with reinforcement as it ought to be, the reinforcement found on ground is about half of what is expected to be used, the beam was slender and could not support the load it is the load it is carrying and thereby making the building unstable, two of the beam column on the ground floor were under reinforced, all the beam on the ground floor were slender and foundation which the columns were sited were under sized. All of the above could be responsible for the collapse. He was cross-examined.
PW8 was one MR. Linui Gubbi. He is an investigator with ICPC. He knows the 4th Defendant. He stated inter alia that he came across the case in the course of this investigation when a petition was written against one Mr. Akinfenwa George who is now at large but fully participated in the construction of the collapse Synagogue 7 storey. The petition was referred to him for investigation. He invited Mr. Akinfenwa George who in his statement claimed that the accused gave him the seal with which he marked the structural drawing of the collapsed building. He identified the said drawing as Exhibit P1. In the course of investigation he discovered that Akinfenwa George knew the 4th Accused in Akure and that Akinfenwa, Ajala and Ogundeji jointly produced the drawing for the collapsed Synagogue Building. He tendered the statements of the 4th and 5th Respondents in evidence as Exhibits P14 (A) & P14 (B).
My Lords, these are in substance of the evidence before the Court below at the close of the Prosecution’s case when the Appellant’s counsel made a no case submission on its behalf and which was overruled by the Court below in the ruling now appealed against. So, did the 1st Respondent failed to make out any prima facie case against the Appellant as contended by the Appellant in this appeal or was the Court below right when it held that the 1st Respondent did made out a prima facie case against the Appellant as contended by the 1st Respondent in this appeal? In its ruling delivered on 8/3/2018, the Court below while holding that the 1st Respondent had made out a prima facie case against the Appellant as well as all the other Defendants, who are the 2nd – 5th Respondents in this appeal and dismissing the Appellant’s no case submission, had stated inter alia thus:
“… I have read the Addresses filed and have listened carefully to oral adumbration made by Learned Counsel on both sides in exposition of their written briefs. The issued formulated by all Counsel (Prosecution and Defense) is basically and essentially the same.
That is whether or not from the totality of evidence so far placed before the Court a prima facie case has in any way been established against the Defendants to warrant calling on them to enter their defense. The principle governing No Case submission has been ably and correctly stated by all learned Counsel. The job of this Court therefore is to apply the principle as ably and correctly stated to the facts of this case? These are the guiding principles on a No Case to Answer. The Court at this stage is not to analyze, review or examine the credibility of evidence led? Without going into analysis as to the merit or credibility of the led, one has to look at the evidence and see, whether or not any scintilla of evidence however slight connecting or linking the Accused to the offence charged?.
From the statement of the law quoted above, the operative word is evidence however slight. In this case, the 1st Defendant was charged with failure to procure approved plan before the commencement of the building in question. PW1 & PW2 gave evidence that there was no approved plan in respect of the building.
That has satisfied the requirement in Agbo’s Case. From the proceedings, there is evidence that
1. That the 2nd – 5th Defendants are involved directly or indirectly in the construction of the SCOAN building,
2. That the said building collapsed,
3. The certain number of persons died as a result of the collapse. These questions that raised issues that call for explanations from no other persons but the Defendants.
These are material evidence linking the Accused persons to the offences charged before the Court. This clearly have satisfied the requirement in Agbos Case. Learned Counsel to the 1st Accused Prince Lateef Fagbemi SAN in his oral adumbration argued that there was no compliance with Section 75 of the Urban & Regional Planning law and that the condition precedent to preferment of a Charge has not been complied with. These issues that has to do with the substantive Charge? The argument of Mrs. Titilola Akinlawon SAN and that of Mr. Olalekan Ojo that there is no proof of death of persons named and non compliance with Section 75 (a) of Urban & Regional Planning Law is also caught by the principles in Ali’s Case being matters for substantive hearing which should be entertained at an interlocutory stage.
The evidence of the Prosecution witnesses particularly that of 1st -5th 7th & 8th has sufficiently linked the Defendants to the alleged offence, sufficient enough to all on them to enter their defense. In the result, I find no merit in the Submissions of No Case to Answer by all the Defense Counsel. The No Case Submissions are overruled and accordingly dismissed. The Defendants are hereby called upon to enter their Defense. See pages 484 – 570 in Vol. II of the record of appeal.
I have had a calm look at and reviewed the entirety of the evidence as led by the Respondent through PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8, both oral and documentary. On the evidence as above as in the records of appeal it does appear to me that the Respondent did led sufficient evidence in support of all the essential elements of the offences in Counts 1 – 111 with which the Appellant was charged and for which he stood trial before the Court below.
There was evidence that the SCOAN’s building constructed between 2008 and 2013 by the Appellant and his co – Defendants before the Court below had collapsed on 12/9/2014 and several named persons were killed on the same date in the incident, including 85 foreign nationals from South Africa were also killed and several other persons were injured. The names of 110 out of the 116 persons killed in the incident on 12/9/2014 were clearly stated in Counts 2 – 111. Their bodied were identified and autopsy duly conducted on their bodies. The PW5, one Prof. John Oladapo Obafuna, gave evidence to these facts but surprisingly he was not cross examined by counsel to the Appellant and his other co – Defendants as only the 1st Defendant?s counsel cross examined him, wherein he confirmed that he personally carried out autopsy on two of dead bodies, who were amongst the 116 persons killed in the incident of the collapsed SCOAN?s building on 12/9/2014.
There were also Exhibit P1 is the NBRRI/COREN Technical Committee Report on the collapse of the six storey Guest House building of SCOAN in Ikotun/Egbe Lagos State, while Exhibit P2 is the COREN report on calculation of Beams 7. Exhibit P3 is the Structural Drawing of SCOAN and there is evidence that the detailing on Beam 7 are not adequate and the area of base needed is bigger than the one provided but the super structure were undersized in terms of physical size and quantities or number of iron rods in column and beams. The collapsed building has no approved plan and the existing approved plan is for the Church auditorium and not the collapsed building. Exhibit P4 is the Application form for registration and processing of building, while Exhibits 8(1) – (5) are pictures of the collapsed building.
It was not disputed that 86 dead bodies were recovered from the site of the incident and 131 people were rescued alive. Out of the 116 dead bodies, 6 bodies were deposited at Isolo General Hospital Mortuary, 63 bodies at Mainland Hospital Mortuary Yaba, 7 bodies at LASUTH Mortuary Ikeja. About 110 victims identified out of 116 victims. Deaths resulted from Traumatic asphysia – insufficient oxygenation – 19 victims, Deaths resulted from Exsanguinations – severe blood lost – 19 victims, Deaths resulted from congested heart failure ? the victim who died 7 days after the incident, Deaths resulted from accumulation of blood in the chest cavity – Haemothoras – 9 victims.
Death certificates were issued. I hold that these pieces of evidence covered the entire elements of the offences charged in Counts 1 – 111. See pages 223 – 224, 233 – 247, 251, 255 – 258, 266, 284 and 290 in Vol. I of the record of appeal.
The only question then is this: whether these pieces of evidence clearly showing the entire constituent elements of the offence alleged against the Appellant were so badly discredited in cross – examination and had thus become manifestly unreliable that no reasonable tribunal can safely convict on it? I agree with the apt submission of learned Senior Advocate for the Appellant that in law where the evidence led by the Prosecution has been badly discredited or deficient in the constituent essential elements of the offence charged, it will readily form the basis of a successful no case submission. I also agree with his submissions on what in law would amount to sufficient evidence in satisfaction of the essential element of the offence charged or contradiction in evidence. Yet, it is also true that in law for contradictions to be countenanced it must amount to material contradiction. In Onubogu V. The State (1974) 9 SC 1 the Supreme Court Per Fatayi – Williams JSC (as he then was) had succinctly explained the rational for the position of the law inter alia thus:
“Where one witness called by the prosecution in another case contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation such as showing that the witness is hostile, before they can ask the Court to reject the testimony of one witness in preference for the evidence of the discredited witness. It is not competent for the prosecution which called them to pick and choose between them. They cannot without showing clearly that one is hostile witness, discredit one and credit the other. See (Summer & Leivesly v. Brown & Co (1909), 25, TLR 745. We also think that even the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial judge, as was the case here to provide the explanation. One of the witnesses should furnish the explanation and thus give the defence the opportunity of testing, by cross-examination, the validity of the preferred explanation.”
Also in Bassey V. The State (2012) All FWLR (Pt. 633) 1816 @ p. 1832, what amounts to substantial contradiction in evidence was explained thus:
“One evidence contradicts another evidence when it says the opposite of what the other evidence has stated and not when there is just minor discrepancy between them. Two pieces of evidence contradicts one another when they are themselves inconsistent on material facts.”
See also Godwin Igabele II V. The State (2007) 2 NCC 125; Odi V. Iyala (2004) 8 NWLR (Pt. 875) 283; Elewuju V. Onisaodu (2000) 3 NWLR (Pt. 647) 95.
Having averted my mind to the above succinct position of the law, I am unable to see any material contradictions in the evidence of the witnesses for the Respondent as would render their evidence so discredited and manifestly unreliable. It is my view, and I so find, that the pieces of evidence led by the Respondent through its witnesses rather than being insufficient or discredited and unreliable at the stage of a no case submission, when the credibility of the witnesses was not yet in issue, concretizes the case of the Respondent, at least on prima facie basis, against the Appellant as would require the Court below, as it rightly did, in my finding, to call upon the Appellant to enter upon his defense to the charge against it.
Based on the findings of facts, applicable principles of law and the reasons adduced above therefore, I hold firmly that the Respondent placed before the Court below sufficient materials in form of relevant evidence line with the offences charged amounting to a prima facie case against the Appellant to warrant his being called upon to enter upon his defense, to offer some explanations on his role in defense of the criminal allegations made against him by the Respondent and far be it from the correct position of the law that at the stage of the close of the Prosecution’s case, the Prosecution was or should be expected to prove the alleged offence against the Appellant beyond reasonable doubt. In law, all that was required of the Prosecution at the stage of the close of its case is the establishment of a prima facie case against the Appellant, nothing more, nothing less and nothing else! See Ajiboye V. State (1995) 8 NWLR (Pt. 414) 408. See also Ubanatu V. COP (2001) 22 ACLR 312 @ p. 335.
This is why where even if a prima facie has been made out against a Defendant, he may yet at the end of the trial still be discharged and acquitted if the Prosecution failed to prove its case against him beyond reasonable doubt as required by law, notwithstanding the fact that at the close of its case it made out a prima facie case against him. In other words, prima facie case is not synonymous with proof beyond reasonable doubt. See Ubanatu V. COP (2001) 22 ACLR 312 @ p. 335. See also Ajidagba V. IGP (1958) 3 FSC 5 @ p. 6; Ajiboye V. The State (1995) 8 NWLR (Pt. 414) 408.
My Lords, having therefore, come to the inescapable conclusion on the evidence before the Court below as in the printed record that the Respondent did made out sufficient prima facie case on all the Counts 1 – 111 against the Appellant for which it was rightly called upon by the Court below, which had overruled his no case submissions, to enter upon his defense if so wish to do, there is no need in my view to consider if any other myriads of submissions by the Appellant’s counsel are still left by delving, as it were into the merit or otherwise of the substantive trial at a time when it is not yet time to consider the guilt or otherwise of the Appellant.
This stage is not the time to ponder and resolve difficult questions of law and facts in the substantive trial at a stage when the issue of credibility, weight and ascription of probative value to admitted evidence does not arise for consideration. The parties must keep their gun powder dry until when the time comes for the releasing of those arsenals of submissions of law and facts at the closing address at the conclusion of trial before the Court below. So much energy was dissipated on issues that have nothing to do with a consideration of a no case submissions and that ought not to be so since the kernel of a no case submission, which is within a very narrow compass, as enunciated and widely pronounced upon by the Courts should no longer pose any recondite issue in criminal trials and appeals.
Now, it has long been the admonitions of the apex Court and this Court to trials Courts not to write lengthy rulings where in their view and or finding a prima facie case has been made out against a Defendant by the Prosecution. However, where a trial Court is of the view and or finding that a prima facie has not been made out against a Defendant by the Prosecution, then perhaps, its ruling may be a little, I say a little, longer, since it would be required then to demonstrate the reasoning leading to its finding that no prima facie case has been made out against the Defendant and thereby discharging him of the offences with which he had been charged. There is always the dilemma from the effect of a lengthy ruling in a no case submission, notwithstanding whether the no case submission is being upheld or overruled by the trial Court.
I think even at this Court such caution must be exercised. This is so because where a Court writes a lengthy ruling on a no case submission, it may inadvertently pronounce on some of the substantive issues bordering on proof beyond reasonable doubt as would render the trial Court prejudicial to continue with the trial should its finding be overturned on appeal and the case is remitted to the trial Court. In such a situation, the case may have to start de – novo before another judge of the trial Court. This, in my view, would clearly be against the spirit and intendment of the new regime of expeditious determination of criminal cases in the Courts as envisaged and engendered by the Administration of Criminal Justice Law of Lagos State 2011.
The ruling of the Court below was indeed very brief in relation to Counts 2 – 111 with which the Appellant was jointly charged with three Defendants but yet it met the requirements of the law and the admonition of the apex Court as well as this Court that once a trial Court in a criminal trial has made up its mind and formed a well informed opinion on the totality of the evidence led by the Prosecution that a prima facie case has been made out against a Defendant, it need not write a lengthy ruling in order not to prejudge issues in the substantive trial that would require more mature considerations and deeper reflections in the final judgment. See Atoyebi V. FRN (2018) 5 NWLR (Pt. 1612) 350 @ p. 361, where the Supreme Court per Sanusi JSC., had reiterated so succinctly inter alia thus:
“Again, in writing a ruling in no case submission, it is advisable that a trial Court should try as much as possible to be brief and should refrain from making any remarks or observations on the facts.”
It follows therefore, that it is not part of the duty of the Court below to at the stage of a consideration of a no case submission to weigh and evaluate evidence or to decide who is telling the truth or not and all such likes issues that have been urged upon this Court as part of the failings of the Court below in the ruling appealed against. I think the Court below was rather on course when it narrowed down its consideration to only the relevant issues for consideration in a no case submission, resisting the temptation, as it were, to make such a ruling either a final judgment or an all issues comers affairs, perhaps simply to please the Appellant’s counsel on the myriads of issues canvassed before it. See Emedo v. State (2002)15 NWLR (Pt. 739) 196. Se also R. v. Baker (1999) 2 Cr. App. R. 335; Bello V. The State(1967) NMLR 1.
In my finding therefore, the Court below was right when it held that the 1st Respondent made out a prima facie case against the Appellant on all the Counts 1 – 111 necessitating his being called upon to enter upon his defense if he so wish. There is nothing perverse or erroneous in the totality of the findings, conclusions and decision of the Court below in this regard.
In law an appellate Court has no business interfering with the correct finding of a trial Court even where the reason adduced and relied upon by the trial Court to arrive at the correct findings turns out to be wrong. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC., had pronounced with finality on this vexed issue, thus:
“An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere….”See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.
In the light of all my findings above, I have no difficulty resolving the sole issue for determination against the Appellant in favor of the Respondent and hold firmly therefore, that this appeal lacks merit and ought to be dismissed. Consequently, it is hereby so dismissed.
In the result, the Ruling of the High Court of Lagos State, Ikeja Judicial Division; Coram: L. B. Lawal – Akapo J., in Charge No. ID/1759C/2015: The State of Lagos V. The Registered Trustees of Synagogue Church of All Nations delivered on 8/3/2018, in which the Appellant’s no case submission was overruled, refused and dismissed is hereby affirmed.
Consequently, Charge No: Charge No. ID/1759C/2015: The State of Lagos V. Oladele Ogundeji is hereby remitted to the Court below for expeditious continuation and conclusion according to law.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother BIOBELE ABRAHAM GEORGEWILL JCA afforded me the opportunity of reading in draft before today the lead judgment just delivered and I agree with the reasoning and conclusion contained therein, I adopt the judgment as mine with nothing further to add.
TOBI EBIOWEI, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my Learned Brother, BIOBELE ABRAHAM GEORGEWILL, JCA and on the strength of the evidence before the lower Court, I also agree that the appeal lack merit and it is dismissed. The No case submission fails and the ruling of the lower Court is upheld.
The appeal is against the lower Court decision overruling the no case submission made by the Appellant. The principles upon which a no case submission can succeed have been adequately brought out by my learned brother in the lead judgment just delivered. He has covered the field on the law. I will just add that, once the prosecution witnesses has made out a case that calls for the explanation of the conduct of a Defendant in a criminal matter, the no case submission will fail as the prosecution will be said to have made out a prima facie case against the Defendant. See AJIBOYE & ANOR VS. STATE (1995) 8 NWLR (Pt. 414) 408; ABACHA VS. STATE (2002) 3 SC 53; OKO VS. STATE (2017) LPELR-42267 (SC) 58; ATOYEBI VS. FRN (2017) LPELR- 43831 (SC).
I agree with my Learned Brother that the prosecution has made out a prima facie case against the Appellant and therefore the no case submission fails. I abide by the reasons and conclusion reached by my learned brother, Biobele Abraham Georgewill, JCA in dismissing this appeal.
Appearances:
Olalekan Ojo SAN, with him, R. M. Bature Esq. and Adebayo Adedokun Esq.For Appellant(s)
Mrs. T. K. Shita – Bey, (DPP, Ministry of Lagos Justice, Lagos State), with him, Y. D. Oshoala Esq. (Director), A. Haroun Esq. (Assistant Director), Y. A. Sule Esq. (PSC), and Mrs. Bola Akinsete, (PSC)
For Respondent(s)
