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THE FEDERAL REPUBLIC OF NIGERIA v. ISAH ABDULLAHI (2019)

THE FEDERAL REPUBLIC OF NIGERIA v. ISAH ABDULLAHI

(2019)LCN/13593(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of June, 2019

RATIO

DEFINITION OF “PRIMA FACIE CASE”

By case law, the phrase Prima facie case” simply means that there is ground for proceeding. That is to say, that there is ground for putting the alleged offender to trial. Let me add that this does not mean the same as proof which comes later when the Court has to determine whether or not the accused is guilty. See the case of AJIDAGBA AND ORS V. IGP. (1958) VOL.1 PAGE 20. For the distinction between Prima facie as a ground for proceeding and Prima facie based on a proof of a case for deciding against the defence. See the cases of ABACHA & 2 ORS V. THE STATE(2002) FWLR (PT. 118) 1224 at 1277, OHWOVORIOLE SAN V. FEDERAL REPUBLIC OF NIGERIA (2003) FWLR (PT. 141) 2019 at 2044, EKWUNUGO V. FRN (2008) 15 NWLR (PT.1111) 630, TONGO V. COP (2007) LPELR SC ? 105/2000, JOSHUA CHIBI DARIYE V. FEDERAL REPUBLIC OF NIGERIA (2015) LPELR 24398. PER ONIYANGI, J.C.A.

MEANING OF A “NO CASE SUBMISSION”

Next is No case submission I came across an essays written by a retired detective on the assassination of JOHN F. KENEDY (1993 2005) the word No case submission is described as a legal expression used and meaning basically that despite thorough investigation, insufficient evidence has been obtained to justly taking the case before a Court of law or that there is No charge to file.

In Nigeria, the word No case submission seems to have survived the old practice of holding Preliminary investigation in a case before it is sent on assizes which is the session for trial of criminal cases in the High Courts. That is done only when there is sufficient evidence to hold trial. Now, at the close of the case for prosecution a submission of No case is registered on behalf of the accused which postulates one or both of the following:

1) That there has been throughout the trial no legally admissible evidence at all against the accused linking him in any way with the commission of the offence with which he has been charged and which would necessitate his being called upon to enter his defence.

2) The submission postulates that whatever evidence there was which night have linked the accused person with the offence has been so discredited that no reasonable Court can be called upon to act on it as establishing quilt in the accused standing trial.

See the following cases, OKORO V. THE STATE (1988) 5 NWLR (PT.94) 255, ADEYEMI V. THE STATE (1991) 6 NWLR (PT.195) 1, OLAWALE AJIBOYE & ANOR V. THE STATE (1995) 8 NWLR (PT.414) 408 at 414, IBENEME V. STATE (2003) FWLR (pt. 170) 1447 at 1454, ABACHA AND ORS V. THE STATE (2002) FWLR (PT.118) 1224 at 1337, STATE V. DUKE & ANOR (2003) FWLR (PT.171) 1654 at 1688. PER ONIYANGI, J.C.A.

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): This Appeal stem from the Ruling of the High Court of Justice Bauchi State, Bauchi judicial Division Bauchi on a No case submission application in suit No. BA/27C/2013 delivered on the 9th day of March 2016 coram Hon. Justice Rabi T. Umar.

In brief, the fact of the case before the trial Court is that the Respondent in this Appeal Isah Abdullahi, the Principal of Government Day Secondary School, Luda, Bauchi State was arraigned on a six counts charge contrary to and punishable under Sections 25 (1) (a), 15 (6) 25 (1) (b) and 19 of Corrupt Practice and Other Related Offences Act 2000. He pleaded not guilty to each of the six counts. In other to prove the allegation against the Accused Respondent, the prosecution called six witnesses and tendered Ten (10) Exhibits marked Exhibit A J At the close of the case of the prosecution, a submission of No case was entered on behalf of the accused Respondent. The learned trial Judge in his considered ruling delivered on the 9th day of March 2016 upheld the No case submission, discharged and acquitted the accused Respondent. Against that Ruling is this Appeal which is predicated on the notice and ground of Appeal dated and filed on 8th May 2018 through which the Appellant is seeking for an order setting aside the Ruling of the trial Court, same having being reach in error and substituting same with an order calling upon the Respondent to enter his defence accordingly for the offences charged.

Consequent upon the transmission of the Record of Appeal on the 14th day of June 2018, the learned Counsel representing the Appellant filed his brief of argument on 21st day of September, 2018. For failure of the Respondent to file his brief of argument pursuant to Order 19 Rule 4 of the Court of Appeal Rules 2016, the learned Counsel to the Appellant vide a motion dated 6th day of December, 2018 and filed on the 7th day of December 2018, sought and obtained an order setting down the Appeal for hearing on the Appellants brief of Argument alone. Consequent upon that order granted the appeal was eventually adjourned to 3rd day of May, 2019 for adoption of brief of argument.

In the adopted brief of argument of the Appellant, the following issues were distilled for the determination of this appeal:

1) Whether or not in view of the evidence adduced by the Appellant before the trial Court, there is a prima facie case requiring some explanation from the Respondent.

2) Whether or not if the learned trial judge had considered all the evidence adduced by the prosecution and the relevant factors in determining no case submission he would have upheld the No case submission.

In my view, the two issues are inter-woven and inter-related hence I will treat and consider them together.

The arguments of the Appellant are that the factors to be considered when a Court must uphold a No case submission is not whether the evidence against the accused person is sufficent to grant a conviction of the accused person but whether the prosecution has made a prima facie case requiring at least some explanation from the accused person.

His contention on ground one is that in the testimonies of PW1 and PW6, the investigating officers, they stated that in their findings, they discovered that Government Day Secondary School, Luda, where the accused was the Principal had only 65 internal candidates and the accused person directed his teachers at a staff meeting to source external candidates and in compliance with the directives of the accused person, a total of 53 (fifty-three) external candidates were sourced and each of whom he charged the sum of N7,000 (Eight Thousand Naira) (sic) for those who came through the staff, N8, 000 (Eight thousand Naira) and N8.500 (Eight Thousand, Five Hundred Naira) for those who came through the Parents Teachers Association (PTA) and the community respectively. It is his case that the total number of candidates for the National Examination Council Exams (NECO) 2010 / 2011 rose to 118 (One hundred and Eighteen) which the Accused/Respondent compiled signed and submitted to the commissioner of Education Bauchi State in the document called Biodata list tendered and admitted as Exhibit G knowing fully well that 53 (Fifty-three) of those names are external candidates whom the Bauchi State Government ought not to pay for but paid for. He also relied on the response of PW1 to the questions by the learned Counsel representing the accused Respondent under cross examination when he said the accused submitted 118 candidates. Also PW2 and PW3 both who are teachers of the said school testified to the effect that they were present at the staff meeting where the accused person directed them and other staff to procure external candidates to register for the 2010/2011 NECO Examination in their School as the school only had about 65 internal candidates. He referred to pages 68, 69 and 83 of the Record of Appeal. He contended that PW2 also testified to the fact that the registration fees paid by the external candidates which were procured at the instance of the accused person was never refunded to them even after the State Government paid for all the 118 (One hundred and Eighteen) candidates consisting of 65 internal and 53 external candidates. He also referred to the testimonies of PW1 and PW6 and Exhibit I, the internal memo of the Ministry of Education which contains the breakdown of the registration fees paid for all 118 (One hundred and Eighteen) candidates and which monies were never refunded and hence the reason why the accused requested the procurement of the external candidates. He submitted that all these evidence were never discredited in the course of cross examination and the prosecution was able to at least establish a nexus between the accused and the offence which the law requires. He relied on the case of DELE FAGORIOLA V. FRN (2013) 8 NCC 113 FIDELIS UBANATU V. COMMISSIONER OF POLICE (2000) 1 S. C. N. J Para A.

Regarding Count 2 which is on destruction of the class room registers for Senior Secondary School (SSS) 111 A and B. 2010/ 2011 in order to conceal the offence under section 15 (a) and punishable under section 15 (6) of the ICPC Act 2000. He submitted that the prosecution successfully proved the count and subsequently linked the accused to the crime having regard to Exhibit F. By Exhibit F the accused admitted receiving the classroom registers but claimed he could not find them having destroyed them to conceal his crime. He argued that the only inference is that he destroyed the registers because he was trying to conceal his crime. He relied on the case of SHUGABA UMAR GANA V. FRN (2013) 8 NCC. 135.

He urged the Court to hold that the trial judge erred when he erroneously held that the prosecution did not establish a prima facie case on count 2. He relied on EHINDERO V. FRN (2014) 2 ICPCLR 39 AT 76.

On Count 3, where the accused was charged for knowingly making false statement to the commissioner of Education Bauchi State that he could not find the classroom Register for Senior Secondary School (SSS) 111 (A.) and (B.) 2010/2011 when he received them from the messenger of Bauchi State School service contrary to section 25 (1) (a) of the ICPC Act 2000. He again referred to Exhibit F and its attachments and coupled with the evidence of PW6. He added that the false statement was made by the accused Respondent in order to conceal his crime of registering external candidates and submitting their names as if they were internal candidates. He urged the Court to hold that prima facie case was established to warrant the Court to call the accused to offer his defence.

On counts 4, 5 and 6, his argument on Count 5 is that the prosecution led evidence to show that the accused Respondent is a public officer and Principal of Government Day Secondary School, Luda, Bauchi State and employed by the Ministry of Education Bauchi State. This fact he said was never in contention. Also that Exhibit G the Biodata of the internal candidates of the school and which also include the names of external candidates i.e. PW5 and signed by the accused Respondent establishes the fact that the accused conferred a corrupt advantage on himself.

On whether or not the learned trial judge considered all the available evidence adduced by the prosecution. He submitted that the factor that must be considered by the Court in upholding a no case submission is whether the prosecutions entire case has been so discredited by cross examination by the defence and which renders the prosecution case manifestly unreliable and that no reasonable tribunal can act on it. He relied on the case of IYIOLA OMISORE V. STATE (2000) 2 NCC PAGE 60 at 92. PARA G. He submitted that the learned Trial judge’s failure to consider the material evidence before him before reaching the conclusion thereat is erroneous. He referred to the evidence of PW1 on page 61 of the record of Appeal, PW 2 and PW3, staff of the school on pages 68 and 72 of the Record of Appeal and PW6 at page 82 of the same record showing that the Respondent directed the teachers at the staff meeting held at the school to source external candidates for the exams. He added that the testimonies were not contradicted. Further, he contended that the learned trial judge failed to consider the testimony of PW5, Abubakar sadiq who was one of the external candidates registered on the direction of the Respondent. He referred to page 78 of the Record of Appeal. He submitted that the decision of the learned trial judge would have been different if the Court had considered Exhibit E which stated that the Ministry does not pay NECO Registration fees for external candidates. He argued further that the testimony of PW 4 further shows that the Bauchi State Ministry of Education does not allow external candidates to register as internal candidates in public schools. He also referred to Exhibit I the internal memo of the School which confirms that the State Government actually paid for 118 candidates deceptively sent to the Ministry by the accused.

In the light of the foregoing, he submitted that the decision of the learned trial judge would have been different if the Court had not misconceived the effect of Exhibit J by saying that the number of the external candidate is 36 and not 53 alleged by the prosecution. He submitted that assuming but not conceding that the total number of the external candidates procured was 36, it is immaterial at the stage of no case submission in that the accused ought to explain the reason for the increase in the number of candidates. He added that even if there is a contradiction in the case of the prosecution, not all contradictions are fatal. He relied on the case of UGWANYI V. FRN (2010) 14 NWLR (PT. 1213) (PAGE not PROVIDED)., IGABELE V. STATE (2006) 6 NWLR (PT.975) (Page not provided).

In conclusion, he urged the Court to allow the Appeal and order the accused to enter his defence as the totality of the evidence adduced by the prosecution/Appellant established a prima facie case and that there was no manifest discredit of the material fact constituting the ingredients of all the offences charged. Further, he urged the Court to hold that the learned trial judge erred in considering the credibility of witnesses at that stage as the case of the defence had not been heard. He relied on the case of OMISORE V. STATE (SUPRA) and ANAMBRA STATE V. NWOBODO (1992) 7 NWLR (PT.256)page 711.

I have carefully gone through the records of proceeding before the trial Court and the arguments and submissions contained in the adopted brief of argument of the Appellant. As I said before, the Respondent did not file any brief of argument despite the service of the Appellant’s brief of argument on him which eventually warranted the grant of the order directing that the Appeal be heard on the Appellants brief of argument alone on 7/3/2019 after considering the application of the Appellant to that effect filed on the same date. Regardless of the failure of the Respondent to attend Court, represented nor file any brief, the Court will consider the application on its merit with a view of determining same.

Having said this, the question I consider germane to the determination of this Appeal is simple and it is, whether or not having regard to the evidence both viva voci and documentary a prima facie case had been established against the accused? In providing an answer to the foregoing question, I will prefer to put on record what is meant by the word ?Prima facie case. In this part of the world, there is no law defining the phrase Prima facie case.

However, our Courts in their jurisprudential endavour have provided meaning to the phrase in a chain of decided cases. A look at page 1228 of the Blacks Law Dictionary, 8th Edition defines the phrase Prima facie as follows:

At first sight, a first appearance but subject to further evidence or information.

Consequently the word Prima facie case is defined as:

“1) The establishment of a legally required rebuttable presumption.

2) A partys production of enough evidence to allow the fact finder to infer the fact at issue and rule in the partys favour.

By case law, the phrase Prima facie case” simply means that there is ground for proceeding. That is to say, that there is ground for putting the alleged offender to trial. Let me add that this does not mean the same as proof which comes later when the Court has to determine whether or not the accused is guilty. See the case of AJIDAGBA AND ORS V. IGP. (1958) VOL.1 PAGE 20. For the distinction between Prima facie as a ground for proceeding and Prima facie based on a proof of a case for deciding against the defence. See the cases of ABACHA & 2 ORS V. THE STATE(2002) FWLR (PT. 118) 1224 at 1277, OHWOVORIOLE SAN V. FEDERAL REPUBLIC OF NIGERIA (2003) FWLR (PT. 141) 2019 at 2044, EKWUNUGO V. FRN (2008) 15 NWLR (PT.1111) 630, TONGO V. COP (2007) LPELR SC ? 105/2000, JOSHUA CHIBI DARIYE V. FEDERAL REPUBLIC OF NIGERIA (2015) LPELR 24398.

Next is No case submission I came across an essays written by a retired detective on the assassination of JOHN F. KENEDY (1993 2005) the word No case submission is described as a legal expression used and meaning basically that despite thorough investigation, insufficient evidence has been obtained to justly taking the case before a Court of law or that there is No charge to file.

In Nigeria, the word No case submission seems to have survived the old practice of holding Preliminary investigation in a case before it is sent on assizes which is the session for trial of criminal cases in the High Courts. That is done only when there is sufficient evidence to hold trial. Now, at the close of the case for prosecution a submission of No case is registered on behalf of the accused which postulates one or both of the following:

1) That there has been throughout the trial no legally admissible evidence at all against the accused linking him in any way with the commission of the offence with which he has been charged and which would necessitate his being called upon to enter his defence.

2) The submission postulates that whatever evidence there was which night have linked the accused person with the offence has been so discredited that no reasonable Court can be called upon to act on it as establishing quilt in the accused standing trial.

See the following cases, OKORO V. THE STATE (1988) 5 NWLR (PT.94) 255, ADEYEMI V. THE STATE (1991) 6 NWLR (PT.195) 1, OLAWALE AJIBOYE & ANOR V. THE STATE (1995) 8 NWLR (PT.414) 408 at 414, IBENEME V. STATE (2003) FWLR (pt. 170) 1447 at 1454, ABACHA AND ORS V. THE STATE (2002) FWLR (PT.118) 1224 at 1337, STATE V. DUKE & ANOR (2003) FWLR (PT.171) 1654 at 1688.

Bearing the foregoing in mind the pertinent question is whether or not there is a prima facie case against the accused to sustain or overrule the no case submission.

In order to determine this, the entire processes before the trial Court has to be examined i.e. the charge, the statement of offence and the testimonies of the witnesses of the prosecution.

I have soberly read all the foregoing processes in the records of Appeal. Considering the totality of the evidence of all the six prosecution witnesses in this case and the documentary evidence i.e. Exhibit G the Biodata list which contains the names of the 118 candidates submitted by the Appellant to the Bauchi State Ministry of Education for the 2011 NECO EXAMINATION in respect of Government Day Secondary School, Luda, Bauchi State which is to show that the number of candidates registered for the examination in the School under the watch of the Respondent was more than the actual number of the internal candidates of the School, Exhibit 1 which is the internal memo of the Bauchi State Ministry of Education showing the breakdown of the Registration fees paid by the Bauchi State Ministry of Education to NECO for 118 student of the said School submitted vide exhibit G by the Respondent to the Ministry, the available evidence which is not disputed that the actual internal number of candidates of the school is 65 as against 118, The evidence of PW 2 and PW 3 to the effect that the Respondent directed them to source for external candidates to make up the number of candidates (118) submitted by the Respondent to the Ministry of Education Bauchi State and which the Ministry paid the registration fees and coupled with the prima facie evidence of PW5, an external candidates sourced by PW4 and who allegedly said he paid N5,000.00 out of the N7,000.00 which he was asked to pay for registration as external candidates, the undisputed evidence that his name made up the 118 candidates contained in the Biodata, Exhibit G submitted by the Respondent as internal candidates of the School for the examination. The issue of the missing school Register as communicated by the Respondent via Exhibit F All these to my mind constituted loaded questions begging for answers. The only person that could provide answers to them is the Respondent/Accused.

If all these questions are still yearning for answers and the rigorous cross examination of the witnesses of the prosecution by the learned Counsel representing the Respondent at the trial, failed to provide answer to the foregoing questions nor destroy them, then I consider it proper, and I have no doubt in my mind that based on the evidence placed before the Court, the prosecution has been able to establish a prima facie case against the Respondent that will warrant the Court invite the Respondent provide answers to the teething questions that has surfaced. Moreso, when the Ministry has clearly stated that their public schools have no vires to register external candidates for the said examination.

On that note, I have no hesitation in my mind in coming to the conclusion that the learned trial judge misdirected himself on the available evidence adduced by the prosecution in coming to the conclusion that the Respondent has no case to answer.

In the contrary, it is my view having regard to the available evidence before the trial Court, that the Respondent has a case to answer. On that note, I have no other option in this circumstance, than to resolve these issues against the Respondent and in favour of the Appellant.

Accordingly I hold that a prima facie case has been established against the Respondent hence he has a case to answer. The no case submission made on behalf of the Respondent is over ruled and dismissed, and the Appeal is allowed.

In consequence, the Ruling by the learned trial judge Hon. Justice Rabi T. Umar delivered on the 9th day of March, 2016 in suit No. BA/27C/2013 discharging and acquitting the Respondent ISAH ABDULLAHI be and is hereby set aside.

Order is hereby made directing the Independent Corrupt Practices and Other Related Offences Commission and or the Commissioner of Police Bauchi State to re-arrest the said Isah Abdullahi forthwith and present him before the designated High Court to face his trial.

In the same vein, the case is remitted to the Hon. Chief Judge of Bauchi State for re-assignment to another judge other than Hon. Justice Rabi T. Umar for expeditious hearing and determination.

UCHECHUKWU ONYEMENAM, J.C.A.: I have read the lead judgment of my learned brother, MUDASHIRU NASIRU ONIYANGI JCA, just delivered. I concur with the reasoning and conclusion reached thereat in allowing the appeal.

I too allow the appeal for same reasons adduced in the lead judgment and as well set aside the Ruling of the High Court of Bauchi State delivered on 9 March, 2016 by Rabi T. Umar, J. in Suit No. BA/27C/2013.

I abide by the consequential orders made in the lead judgment.

TANI YUSUF HASSAN J.C.A.: I read in draft the lead judgment of my learned brother, MUDASHIRU NASIRU ONIYANGI JCA. I agree with the conclusion allowing the appeal. I abide by the consequential order made.

Appearances:

Isaac JiyaFor Appellant(s)

For Respondent(s)

Appearances

Isaac JiyaFor Appellant

AND

For Respondent