OLUSEGUN OGUNWALE V. THE STATE
(2013)LCN/5994(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2013
CA/L/771/2010
RATIO
NO CASE SUBMISSION: THE ESSENCE OF A NO-CASE SUBMISSION
The essence of a no-case submission lies in the contention that the evidence of the Prosecution has failed to establish a prima face case or establish the ingredients of the offence against the Accused to make it imperative for the Court to call upon the Accused to defend himself or answer to the charge- see Tongo V. C.O.P (2007) 12 NWLR (Pt. 1049) 525 SC. The bottom line is that what the Court usually considers, where a no-case submission is made, is 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 Suleiman V. State 15 NWLR (Pt. 1164) 258, wherein it was observed –
“Where a no-case submission is made,the trial Court at that stage is not expected to express an opinion on the evidence, it is only called upon to prima facie find whether on the evidence adduced there is admissible evidence linking the accused person with the offence with which he is charged”.PER HON. JUSTICE AMINA ADAMU AUGIE
PRIMA FACIE CASE: WHAT IS A PRIMA FACIE CASE
A prima facie case is one that has proceeded to where it will support findings, if evidence to the contrary is disregarded, and prima facie evidence means evidence, which on the face of it, is sufficient to sustain the charge – see Shatta v. F.R.N. (2009) 10 NWLR (Pt. 1149) 403, where this court adopted the definition in the case of Star Sigh v. Jitendrana-thsen (1931) I.L.R. 59, thus “
“What is meant by prima facie (case)? It only means that there is ground for proceeding. But a prima facie case is not the same as proof which has to find whether the accused is guilty or not guilty, and the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused”. (Per Lord Williams, J.). PER HON. JUSTICE AMINA ADAMU AUGIE
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
OLUSEGUN OGUNWALE Appellant(s)
AND
THE STATE Respondent(s)
HON. JUSTICE AMINA ADAMU AUGIE (Delivering the Leading Judgment): This is an appeal against the decision of the Lagos State High Court to overrule a no-case submission made on behalf of the Appellant, who was arraigned with three of his co-workers, and charged with the offence of attempted murder. The case against the Appellant, who is the 2nd Accused, and his co-workers – Fatai Yisa, Faith Ajufo and Towesho Olubukola, is that they attempted to murder a disgruntled customer, who came to complain about some products he bought from them, at a V-Mobile outlet on Ogunlana Drive, Surulere, Lagos.
The Prosecution called four witnesses, including the alleged victim Emmanuel Orjika as PW1, and he testified that when he realized the products he bought on 22/12/04 were not working, he ran back to complain and was told to return the next day. On 23/12/04, he was taken to their Head Office at Victoria Island. When he got back to the said outlet at Ogunlana Drive, he met a lot of people queuing to buy their products, but when he told the people that their products were not working, a lot of them turned, and people left, which angered the 3rd and 4th Accused persons, and they started calling him a thief.
Before he knew it, they had called in their OPC Guard -the 2nd Accused, and they started beating him up as a thief. He further testified as follows –
“As they beat me, people protested that I was not o thief. The 2nd accused ran out and got his gun and then started shooting in the air and scared people away. About 5 ladies ran into their office, which was being renovated, and brought out a cable. They gave the cable to the 1st Accused person and they tied me up. The 1st Accused and the 2nd Accused [i.e. Appellant] tied me up with the help of the others, while they were at it; the [Appellant] was hitting my head with a gun. His cohorts, the other members of staff were praising him that he had been able to catch an armed robber. They beat me, and I was wounded and I still have scars from my wounds. After I was tied up and beaten, I had dislocation in my right foot and I still have it till today. While I was tied, the [Appellant] hit me all over my face with his gun and I was wounded, he kept repeating that I should say my last prayer, that I was an armed robber who came to steal money. There were about 10 of them beating me up. The 3rd and 4th Accused were the ones passing the others the wire/cable with which to tie me up. Then they stopped a motorcycle rider and forcefully took his fuel. They poured the fuel into a gallon wanting to pour it on me before setting me on fire. They also got condemned tyres. The 1st Accused and the (Appellant) got the tyres, while the 3rd accused carried the gallon and handed it to them while abusing me. The 4th Accused (Appellant) was hitting me with a big stick. Had it been that the Police wasted another two minutes, I would have gone up in flames. The Policemen my brother called came to my rescue”
The Prosecution also called his brother, Cyril A. Orjika, who testified as PW2, and he narrated how a motorcyclist ran to their compound and shouted that a tenant, who said he lived there, was about to be set ablaze at the V-Mobile outlet at Ogunlana Drive. He quickly ran there only to see his brother, PW1, tied hand and foot. On his way to the Police station, he saw a Police patrol vehicle with officers, who followed him and eventually rescued his brother, PW1, from the Appellant and the other Accused Persons. He further testified.
“When we got to the scene, I saw the [Appellant] and the 1st Accused. When the Police got to the scene, they untied PW1 and they drove all of us to Area C Command Police Station At the scene I saw a gallon of fuel and people. The 1st Accused and the (Appellant) were jubilating; they had stopped beating PW1 then”.
PW3 is Sergeant Sikiru Abdullahi, who initially investigated the matter, and obtained Statements from everyone involved. He also testified as follows –
“I followed the Accused Persons and the Complainant to the scene of the crime. At the scene, I discovered that a fight had taken place. Four suspects were handed over to me. No Exhibit was recovered at the scene. I was not the officer that incidented the crime. I was just assigned by the Desk Officer at that time. ”
PW4 is Inspector Stephen Deri of the State C.I.D., Panti, Yaba, Lagos, and he testified that he received the case file from an earlier team that could not conclude their investigation because of another assignment given to them; and that he also obtained statements from the complainants and Accused Persons, and visited the scene of crime. He tendered all the Exhibits that he received from the earlier team, which includes a V-mobile sim pack, a torn t-shirt, and a black Nitel Cable. He confirmed that there was, indeed, an attempt on the life of PW1 by the Appellant and the other Accused Persons. He stated as follows”
“I visited the scene of the crime – – -My investigation revealed that there was a fracas between the Complainant and the Accused Persons at the scene, which was the Defendants’ office. I found out that all the Accused persons were involved in it. They were all present at the scene and they were arrested at the scene on the day”.
At the close of the case for the Prosecution, the Appellant filed a “Notice to rely on a No-Case Submission”; and the Grounds for the Application are that-
1. The Prosecution failed to prove the essential elements of the offence of attempted murder.
2. The evidence adduced by the Prosecution has been so discredited as a result of cross examination and is so manifestly unreliable that no reasonable tribunal could safely convict on them.
Written Addresses were duly filed and adopted, and in his Ruling delivered on 5/2/2010, the learned trial Judge, O. A. Williams, J., observed as follows –
“The four witnesses testified that the four Accused Persons were found and arrested at the scene of the crime. Each witness narrated o stage in the occurrence or the investigation of the crime. PW1 and PW2 were eye witnesses who identified the accused persons. PW1, the victim, testified that he was beaten up and tied up by the 1st Accused and the [Appellant], the 4th Accused hit him on the head with a stick white the 3rd and 4th Accused persons were the ones, who passed them the cable. He added that the 1st Accused and [Appellant] got the tyres while the 3rd Accused carried the gallon of fuel they had forcefully taken off o motorcyclist. He deposed that “had it been that the Police wasted another two minutes, I would have gone up in flames”. PW2 testified that he saw his brother PW1 tied hand and foot, a gallon of fuel and the 1st Accused and [Appellant] at the scene – – PW3 the initial I.P.O narrated that – – four suspects were handed over to him; and how he visited the scene, discovered that a fight had taken place, and saw PW1’s shirt torn. PW4 – – narrated how he investigated the crime and discovered that there had been a fracas between the Accused Person and PW1. He deposed that – – – Though taken to task on his investigation and his personal input during cross-examination; he maintained that he gathered from his investigation that there was an attempt to kill PW1″
Based on the foregoing, the learned trial judge, concluded as follows-
“It cannot be said that “there is before the Court no legally admissible evidence linking the accused persons with the commission of the offence”. I firmly believe that the evidence ted by the Prosecution supports the charge against the Accused persons. It is sufficient to establish a prima facie case as it shows the presence of the ingredients of: an act and an intention required to prove the offence of attempted murder. I do believe the accused persons have been linked with the crime and they have a case to answer. I do not agree – – that the testimonies of the Prosecution witnesses has been so discredited by the cross-examination as to warrant a finding that there is no case to answer. Accordingly, the no-case submission fails and is overruled. The Defendants are called upon to enter their defence to this Charge”.
Dissatisfied, the Appellant appealed to this court with a Notice of Appeal containing 3 Grounds of Appeal, and in his Brief of Argument, prepared by Emmanuel A Oyebanji, Esq., David O. Aransiola, Esq., and Eniola A. Agbelusi, Esq., it was submitted that two issues call for determination, as follows –
1. Whether or not the essential elements of the offence of attempted murder has been proved by the Respondent against the Appellant in the circumstances of this case.
2. WHETHER OR NOT THE EVIDENCE ADDUCED BY THE Respondent before the lower Court against the Appellant has been so discredited as a result of cross-examination or so manifestly unreliable that no reasonable tribunal could safely convict on it.
The Respondent, however, submitted in its Brief prepared by Mrs. E. I. Alakija, that the only issue for determination in the appeal, is as follows –
“Whether the Respondent has discharged the onus placed on it by Law in establishing a prima-facie case of the offence for which the Appellant is charged”.
In my view, the issue formulated by the Respondent highlights the question that comes up when considering a submission that an accused person has no case to answer in a criminal trial; and I will adopt it in dealing with this appeal. To start with, the Appellant was charged with the offence of attempted murder contrary to Section 320 of the Criminal Code, which provides that –
“Any person who –
(1) Attempts unlawfully to kill another; or
(2) With intent unlawfully to kill another does an act, or omits to do any act which it is his duty to do such act or omission being of such a nature as to be likely to endanger human life is guilty of a felony, and is liable to imprisonment.
To ground a conviction, the Prosecution must prove or establish the following-
(a) An intention to kill, and
(b) Physical act by the accused to commit the complete offence.
In urging this Court to set aside the lower Court’s Ruling, the Appellant argued that the Charge Sheet did not say how he attempted to murder PW1, and the burden is on the Respondent to prove the manner in which he did so; and that the lower Court did not thoroughly review the testimonies of the said Witnesses before drawing up conclusions, and consequently, come up with the wrong decision, and he gave instances of its wrongful evaluation of evidence. For instance, aside from the mere mentioning of “rope, gallon, fuel, used tyres, gun etc.”, none of the items were tendered in evidence for the evaluation of the lower Court to justify its belief; there is no evidence that fuel was poured on PW1 or that he was set ablaze; and there is no evidence that any lighter or fire was made to justify the establishment of a prima facie case against him.
He referred to Sections 4 and 320 of the Criminal Code, and submitted that to constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation for the commission of the offence, citing Ozigbo V. C.O.P. (1976) All NLR 133, Jegede V. The State (2011) 7 SC (Pt. 1) 122; that the totality of the Prosecution’s evidence has not proved beyond reasonable doubt that he was going to set PW1 on fire; that the Prosecution must prove the act that was an attempt to murder PW1, and also his intention to kill him, citing Omonuju V. The State (1976) ALL NLR 301, Agumadu V. The Queen (1963) ALL NLR 301); that apart from not proving any particular action of his that constitutes an attempt to kill, the Prosecution did not also prove any intention on her part to kill PW1; that looking at the evidence of PW1, there was no remote basis upon which there could be an intention to kill him; that PW1’s evidence shows a purely business transaction with minor complaints; and that there was no nexus between what happened before and at the alleged incident to warrant the Court’s inference of an intention to kill PW1.
The Respondent cited Ubanatu V. C.O.P (1997) 7 NWLR (Pt.616) 512 and Njoku V. C.O.P. (1999) 10 NWLR (Pt. 622) 193, on no-case submissions, and submitted that at this stage, the Court is only to determine whether the Prosecution has made out a prima facie case, and not to evaluate evidence or consider the credibility of witnesses, citing Daboh V. The State (1977) 5 SC 197, The State V. Emedo (2001) 12 NWLR (Pt.726) 131; that prima-facie refers to evidence, which if un-contradicted and if believed, will be sufficient to prove the case, citing Ajidagba V. The State (1958) 3 FSC 5; that what the Court must consider is whether the evidence is such that discloses a primo-facie case against the Appellant, which requires at least some explanation from her, and not whether the evidence can sustain a conviction, citing R.V. Ojuwa Ogucha (1959) 4 FSC 64; that it is not necessary at this stage for the lower Court to determine whether the evidence available is sufficient to justify a conviction, citing Ekpo V. The State (2001) 7 NWLR (Pt. 712) 292, Odido V. The State (1995) 8 NWLR (Pt. 369) 88, Ajiboye V. The State (1994) 8 NWLR (Pt. 364) 587; and that prima facie case is not the same with proof of a crime, which occurs after the close of trial, citing Abacha V. The State (2001) 3 NWLR (Pt. 699) 35.
The Respondent also cited Section 320 of the Criminal Code and Iden V. The State (1994) 8 NWLR (Pt. 365) 719, and submitted that the evidence shows that an incident occurred on that day involving PW1 and the Appellant, which led to his sustaining injuries that were not self-inflicted; that the weapon used is fuel (petrol) AND TYRES, and it is common in Lagos to see a mob mete out jungle justice on innocent victims by burning them up; and that evidence showed that PW1 was tied hand and foot to prevent his escape as he had been labeled a robber and a thief to the excitement of onlookers, who witness such dastardly act every other day on the streets of Lagos, and would not have prevented it since they believe that he deserved what he was getting.
In response to the Appellant’s argument under his issue 1, which is what we are considering, the Respondent submitted that he delved into the merit or otherwise of the main suit, which is what the lower Court tactfully avoided in its Ruling; that most of his arguments should have been reserved until final addresses are filed in the substantive suit before the Court as they are not relevant at this stage, citing Ubanatu V. C.O.P. (supra); and that the issue before the lower Court in this case was whether there was sufficient ground for proceeding, and the lower Court has decided the issue in the affirmative.
But the Appellant countered in his Reply Brief that before a prima facie case can be established, the essential ingredients of the alleged offence must firstly be proved by the Prosecution; that before the Court can deduce whether a prima facie case has been established against him, he must have been linked inextricably with the offence and the essential ingredients of the offence proved against him; that the evidence must have been adduced, evaluated and then the Court will determine whether it believes the evidence or not; that going by the myriad of contradictory evidence at the trial, the lower Court was wrong to hold that a prima facie case has been established against him; that the Respondent’s assertion that the main ingredient “is intention to kill”, is not a true reflection of the law as stated in Section 320 of the Criminal Code Law; and that the two ingredients of attempted murder – (i) the overt act which constitutes the offence, and (ii) the intention to commit the offence, must be present in determining the commission of the offence of attempted murder, citing Omonuju V. The State (supra). As regards issue 1, he submitted that the Respondent has the burden of proving the essential elements of the offence of attempted murder before the lower court can say he has a case to answer, citing Idowu V. The State (2000) 7 SC (Pt. II) 50; and that his submission on same does not tantamount to delving into the substantive suit as it contended.
The Appellant had a lot more to say in his main Brief and his Reply Brief about contradictions in the evidence of the Prosecution witnesses, but it will not be necessary to go into all the details because the question at this stage is not whether there was sufficient evidence to convict or acquit the Appellant – see Mohammed V. The State (supra), where Tabai, JSC, explained as follows –
If a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating Tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable Tribunal might convict. If a reasonable tribunal might convict on the evidence so laid before it, there is a case to answer”.
See also Daboh V. The State (1977) 5 SC 122, where Udo Udoma, JSC, held –
“It is well settled that in the case of a trial by jury, no less than in a trial without a jury, however slight the evidence linking on accused person with the commission of the offence charged might be, the case ought to be allowed to go to the jury for their findings as Judges of fact and their verdict. Therefore, 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”.
The essence of a no-case submission lies in the contention that the evidence of the Prosecution has failed to establish a prima face case or establish the ingredients of the offence against the Accused to make it imperative for the Court to call upon the Accused to defend himself or answer to the charge- see Tongo V. C.O.P (2007) 12 NWLR (Pt. 1049) 525 SC. The bottom line is that what the Court usually considers, where a no-case submission is made, is 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 Suleiman V. State 15 NWLR (Pt. 1164) 258, wherein it was observed –
“Where a no-case submission is made,the trial Court at that stage is not expected to express an opinion on the evidence, it is only called upon to prima facie find whether on the evidence adduced there is admissible evidence linking the accused person with the offence with which he is charged”.
A prima facie case is one that has proceeded to where it will support findings, if evidence to the contrary is disregarded, and prima facie evidence means evidence, which on the face of it, is sufficient to sustain the charge – see Shatta v. F.R.N. (2009) 10 NWLR (Pt. 1149) 403, where this court adopted the definition in the case of Star Sigh v. Jitendrana-thsen (1931) I.L.R. 59, thus ”
“What is meant by prima facie (case)? It only means that there is ground for proceeding. But a prima facie case is not the same as proof which has to find whether the accused is guilty or not guilty, and the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused”. (Per Lord Williams, J.)
In this case, there was evidence that there was a “fracas” or “altercation” between PW1 and some of the staff at the V-mobile outlet at Ogunlana Drive, which included the Appellant. PW1 was labeled a “thief” and “armed robber”, and was allegedly beaten and tied up by the Appellant. He is also alleged to have got a gun, which he used to hit PW1 on the head and all over his face, telling him repeatedly to say his last prayers, since he was an armed robber. So, there is evidence on the face of it to link him with the alleged offence, and to look deeper at the evidence at this stage, as postulated by the Appellant, would amount to considering proof, which is not the same as prima facie case. The evidence led by the Prosecution is sufficient to establish a prima facie case against him, and the lower Court was right to overrule the no-case submission.
The end result is that the appeal fails, and it is dismissed. I do hereby affirm the decision of the lower Court in its Ruling delivered on 5/2/2010.
CHIMA CENTUS NWEZE J.C.A: My distinguished and indefatigable Lord, Augie JCA, graciously, obliged me with the draft of the leading judgment just delivered now. I am persuaded by the splendid reasoning and the most cogent conclusion.
Like the leading judgment, I have no hesitation in endorsing the submission of the respondent’s counsel that, in considering a no-case submission, the court’s duty is finite: it is only to determine whether the prosecution has made out a prima facie case; hence, it neither involves the evaluation of evidence nor the consideration of the credibility of the witnesses.
Ever since Abbot FJ, in Ajidagba v Police (1958) 3 FSC 5, approvingly, adopted the definition of the phrase “prima facie” case from the Indian decision in Sher Singy v. Jitendranathsen (1931) I.L. R. 59 Calc 275, subsequent decisions have, consistently, endorsed it. It, simply, comes to this: evidence discloses a prima facie case when it is such that if uncontradicted and if believed, will be sufficient to prove the case against the defendant. Ohwovoriole v. FRN [2003] 2 NWLR (pt 803) 176; (2003) 1 SC (pt 1) 1; (2003) LPELR-SC.392/2001; Ajiboye v. State (1994) 8 NWLR (pt 364) 587; Ekwunugo v. FRN [2008] 15 NWLR (Pt 1111) 630; (2008) 7 SC 196; Tongo v. COP (2007), LPELR-SC. 105/2000; Abacha v. State (2001) 3 NWLR (pt 699) 35; Daboh v. State (1977) 5 SC 197.
As the leading judgment noted, very percipiently, the evidence which the prosecution led is sufficient to establish a prima facie case against the defendant/appellant. I, entirely agree that the lower court was right in overruling the no-case submission.
It is for these reasons, and the more detailed reasons in the leading judgment, that I, too, shall enter an order dismissing this appeal. I abide by the consequential orders in the leading judgment.
CHINWE E. IYIZOBA J.C.A: I read before now the judgment just delivered by my learned brother, AMINA ADAMU AUGIE JCA. I agree with the reasoning and conclusions therein. The contention of the Appellant is that the lower court erred in overruling his no case submission when the prosecution failed to prove the essential elements of the offence of attempted murder. The Appellant in other words is saying that at the close of the prosecution’s case, the evidence led was insufficient to require him to make a defence. I do not think that is the position. The evidence led has been fully set out in the lead judgment. Weighty allegations were made against the Appellant. The allegation is that he and his co-accused, fellow colleagues of V-Mobile incensed by the alleged victim (PW1)’S words to their customers who had queued up to buy their products that the products were not working causing them to disperse unleashed mayhem on him; calling him a thief and putting things in place to set him on fire. But for the quick intervention of PW2, a brother to PW1 and the Police, he would have been burnt to death. These are serious allegations made by prosecution witnesses including PW4 the IPO who confirmed that from his investigations there was indeed an attempt on the life of PW1 by the Appellant and the other accused persons. What the Appellant wanted the lower court to do at the end of the Prosecution’s case when he entered his no case submission was for the court to evaluate the credibility of the witnesses. That surely would be a wrong procedure. At this stage of the trial the court is not concerned with the truthfulness or otherwise of the allegations. The allegations have been made. There is need to hear from the other side. In Aituma v. State (2007) 5 NWLR (Pt. 1028) 464 the court observed:
“When a no case submission is made on behalf of an accused person, the trial court is not thereby called upon at that stage to express any opinion on the evidence before it. The Court is only called upon to take note and to rule accordingly that there is before the court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged.”
What is required of the court is to determine whether the prosecution has made out a prima facie case which requires at least some explanation from the Appellant. The evidence led by the prosecution is such that the appellant ought to be called upon to explain what happened. It would in my view be a travesty of justice in the circumstances of this case to uphold a no case submission. In Emedo & Ors v. The State (2002) 15 NWLR (Pt. 789) 196 Mohammed JSC observed:
“There are several decisions of this court warning against the discharge of accused persons after a submission of no case to answer, particularly when it is clear from the evidence adduced that the facts disclose some explanation which the accused has to make in view of what the prosecution has so far established from the evidence.”
See also Chuka v. The State (No. 2) (1988) NWLR (pt. 86) 36; Ajiboye v. State (1995) 8 NWLR (pt. 414) 408; Tongo v. C.O.P. (2007) 12 NWLR (Pt. 1049) 525;
I too hold that the lower court was right in holding that the Appellant has a case to answer. I also hold that the appeal lacks merit and ought to be dismissed. I dismiss it and affirm the ruling of the lower court delivered on 5/2/2010.
Appearances
E. A. Oyebanji, Esq. with P. C. Anah, Esq.
K. B. Daminabo (Mrs.) and M. A. OlarenwajuFor Appellant
AND
Mrs. O. A. Akin-AdesomojuFor Respondent
