AYEGBAJEJE v. COP (2020)

AYEGBAJEJE v. COP

(2020)LCN/14222(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, May 15, 2020

CA/IB/589C/2014

RATIO

EVIDENCE LAW: PRESUMPTION OF INNOCENCE

The law is very elementary and settled that the system of criminal administration of justice in Nigeria is accusatorial and not inquisitorial. What this means is that the defendant is presumed innocent until his guilt is established.
In the case of DAVID USO VS. COP (1972) 11 SC 37 AT 46 -47, Elias CJN said:
“In our system of Criminal trial, the judge as umpire is not expected to descend into the arena. This illustrates the difference between the inquisitorial method of trying an accused person and the difference between the Angol saxon and the Civil Law Systems. Our procedure is accusation in the sense that the innocence of the accused is presumed until he is proved guilty by the prosecution under the inquisitorial system of trial which obtains in most continental legal systems, the judge plays a dynamic role in cross examining litigants and witnesses and the accused’s guilt is presumed until he proved his innocence.” PER FOLASADE AYODEJI OJO, J.C.A.

CRIMINAL LAW: WHEN CAN A NO CASE SUBMISION BE MADE.

The law however commends that where a defendant is of the view that the evidence adduced by the prosecution at the close of its case in respect of any or all of the offence(s) he is tried for is not sufficient in terms of quantity and quality to show that the ingredients or elements of the offence(s) have any reasonable connection with or link to him, he may pray the trial Court by way of a no-case submission to discharge him of the offence(s). See BELGORE VS. FRN & ANOR. (2018) LPELR – 47471(CA); IBEZIAKO VS. COP (1963) 1 ALL NLR 61 AT 68 -69; DR. OLU ONAGORUWA VS. THE STATE (1993) 7 NWLR (PT. 303) 49; UBANATU VS. COP (2000) 2 NWLR (PT. 643) 115 AND EKWUNUGO VS. FRN (2008) 15 NWLR (PT. 111) 630.
In IBEZIAKO VS. COP (1963) 1 ALL NLR 61, the Supreme Court per Ademola CJF held at pages 68 – 69 as follows:
“A submission that there is no-case to answer may be properly 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.”
It is significant to note that at the case of no-case submission the only evidence before the trial Court is that adduced by the prosecution against the defendant. The law however commends that where a defendant is of the view that the evidence adduced by the prosecution at the close of its case in respect of any or all of the offence(s) he is tried for is not sufficient in terms of quantity and quality to show that the ingredients or elements of the offence(s) have any reasonable connection with or link to him, he may pray the trial Court by way of a no-case submission to discharge him of the offence(s). See BELGORE VS. FRN & ANOR. (2018) LPELR – 47471(CA); IBEZIAKO VS. COP (1963) 1 ALL NLR 61 AT 68 -69; DR. OLU ONAGORUWA VS. THE STATE (1993) 7 NWLR (PT. 303) 49; UBANATU VS. COP (2000) 2 NWLR (PT. 643) 115 AND EKWUNUGO VS. FRN (2008) 15 NWLR (PT. 111) 630.
In IBEZIAKO VS. COP (1963) 1 ALL NLR 61, the Supreme Court per Ademola CJF held at pages 68 – 69 as follows:
“A submission that there is no-case to answer may be properly 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.”
It is significant to note that at the case of no-case submission the only evidence before the trial Court is that adduced by the prosecution against the defendant. Consequently, in the determination of whether a prima facie case has been made out or disclosed by such evidence, a trial Court does not embark on the appraisal of the entire facts and assessment or evaluation of the evidence in the sense of proof of the offence(s) beyond reasonable doubt. In other words, what the Court should consider at the stage of a no-case submission is not whether the evidence adduced by the prosecution against the defendant is sufficient to justify or warrant conviction for the offence(s) but whether the evidence on its face has shown real and direct commission to or link between the defendant and the commission of the criminal offence he was charged with in terms of the essential ingredients or elements of the offence(s) which would necessitate and require some explanations from him. See OMUEDA VS. FRN (2018) LPELR – 46592 (CA); TONGO VS. C.O.P. (2007) 12 NWLR (PT. 1049); DESTRA INVESTMENT LTD. VS. FRN (2017) 2 NWLR (PT. 1550 485 AT 513; FRN VS. AGI (2018) LPELR – 46979 (CA); EKWUNUGO VS. FEDERAL REPUBLIC OF NIGERIA (2008) 15 NWLR (PT. 1111) 630 AND DABOH VS. THE STATE (1977) 5 SC 197.
In OCHONOGOR ALEX VS. FEDERAL REPUBLIC OF NIGERIA (2018) 7 NWLR (PT. 1618) 228, the Supreme Court per Nweze JSC held as follows:
“A survey of all binding authorities would reveal that where a no-case submission is made, the Court is not expected to volunteer any opinion on the evidence, DABOH VS. STATE (1977) 5 SC 197; ABACHA VS. STATE (2001) 3 NWLR (PT 699) 35;…
The rationale for this inviolable prescription is that, in such a situation, the duty of the trial Court is limited to a finding whether, prima facie, on the evidence adduced; the appellant had been linked with the alleged offence. Thus, in considering the defendant’s submission that he had no case to answer, the Court had no obligation to determine the question whether the evidence could sustain the conviction. R V OGUCHA (1959) 4 FSC 64; EKPO VS. STATE (2001) 7 NWLR (PT 712) 292;…
Learned Counsel for the Appellant would appear to rate two dissimilar concepts in our accusatorial jurisprudence, namely, prima facie case and proof beyond reasonable doubt, equiponderantly! With profound respect, this sort of fallacious obfuscation of settled concepts must be dissipated without much ado. Ever since Abbot FJ, in AJIDAGBA VS POLICE (1958) 3 FSC 5, approvingly, adopted the definition of the phrase “prima facie” case from the Indian decision in SHER. SINGY VS. 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 of such that if un-contradicted and if believed, will be sufficient to prove the case against the defendant.”
The summary of all I have been saying is that a trial Court should simply consider whether the evidence adduced before it against the defendant at a judicial glance or first appearance discloses a “prima facie case”. If the trial Court considers that a prima facie case has been disclosed, a legal duty is placed on the defendant to offer explanations without which the Court could convict him in respect of the offence(s).
This is why in our adversarial system, one does not begin to inquire whether a defendant is guilty of a crime until it has been established that a crime has been committed and the defendant is linked as a culprit.
The expression “prima facie case” has received judicial pronouncements in criminal matters. See AJIDAGBA VS. INSPECTOR GENERAL OF POLICE (1958) NSCC 20 AND GODWIN DABOH & ANOR. VS. THE STATE (1977) 5 SC 197.
In AJIDAGBA VS. THE STATE (SUPRA) Abbot FJ at pages 21 – 22 held as follows:
“We have been at some pains to find a definition of the term “prima facie case”.
The term so far as we can find has not been defined either in the English or in the Nigeria Court. In an Indian Case however, Sher Singh Vs. Jtendrana Ihsen (1931) I.LR 50 Cal. C275 we find the following dicta:
What is meant by a prima facie case? It only means that there is a ground for proceeding…
But a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is guilty or not…
The evidence discloses a prima facie when it is such that if uncontradicted and it believed it would be sufficient to prove the case against the defendant per Lort-Williams J.”
In GODWIN DABOH & ANOR. VS. THE STATE (SUPRA) Udo-Udoma JSC at pages 209 – 211 held thus:
“Before however, embarking upon such an exercise, it is perhaps expedient here to observe that it is well known rule of criminal practice, that in criminal trial, at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of an accused person postulate one or two things or both of them at once.
Firstly, such a submission postulates that there has been throughout the trial no legal admissible evidence at all against the accused person on behalf of whom the submission has been made linking him in any way with the commission of the offence with which he has been charged, which would necessitate his being called upon for his defence.
Secondly, as has been so eloquently submitted by Chief Awolowo, that whatever evidence there was which might 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 criminal guilt in the accused concerned and in the case of trial by jury, that the case ought therefore to be withdrawn from the jury and ought not to go for a verdict. On the other hand, 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 an accused person with the commission of the offence charged might be, the case ought to be allowed to go to the jury. 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 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 legal admissible evidence linking the accused person with the commission 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.”
I wish to make it abundantly clear that at the stage of no-case submission, the Court is not called upon to express any opinion on the evidence before it as to their probative value but to simply rule on whether there exists legal admissible evidence linking the Defendant with the commission of the alleged offence(s). If the no-case submission is on the basis of some discredited evidence, such discredited evidence must be on the face of the printed record and in respect of relevant and material fact.
Furthermore, at this stage the judge does not write a judgment and it is not his 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 the evidence of the prosecution is unreliable. The decision to uphold or reject the no-case submission should not depend upon whether the trial Court would at that stage convict or acquit but upon whether the evidence is such that a reasonable tribunal might convict on the evidence as it stands.

It is the refusal of the lower Court to sustain the no-case submission made on behalf of the Appellant that led to this appeal.

Learned Counsel to the Appellant argued in the Appellant’s Brief that there is no legal admissible evidence led throughout the length and breadth of the case presented by the Respondent during the trial to connect the Appellant in any way with the commission of the offence with which he was charged to compel his been called upon to defend himself. He also argued that whatever evidence there was which might have linked him with the commission of the offence has been so discredited under cross examination that no reasonable Court can be called upon to act, let alone rely on to establish the guilt of the Appellant.

I have painstakingly considered the evidence of the four (4) witnesses called by the Respondent contained at pages 8 – 20 of the record. I have also read and considered in detail the written address on the no-case submission made by learned counsel to the Appellant at pages 22 – 30 of the record. It is my considered view that a prima facie case has been made out against the Appellant to warrant an explanation from him and I so hold. The evidence of P.W.1 – P.W.4 and the Exhibits tendered are to the effect that:
i) The Appellant with two (2) others encroached upon a portion of land situate at Ahoro-Ika Are Onibon Village which PW1 bought from the Are Onibon Family in 1976. On 08/01/1977, PW1 executed an agreement as evidence of his purchased and after that gained an immediate and undisturbed possession of the land. PW1 also obtained a Certificate of Occupancy in respect of the land as required of him by law. That Certificate has not been revoked.
ii) The Appellant with two (2) others took over part of PW1’s land by building different structures on it without any authority and/or right whatsoever. It is further the evidence before the Court that PW1 was attacked on 01/04/2012 when he went with four (4) others to help in the removal of blocks illegally put on his land.

Both PW2 and PW3 confirmed on record that the land belongs to PW1. They were both emphatic that the Appellant with two others encroached on a portion of PW1’s land by building various structures like shopping complex, filling station etc. thereon.

It is based on all of the above evidence, that I have no hesitation in coming to the conclusion that, the Appellant’s action was likely to cause breach of peace and he therefore had some explanation to make. There is a ground for proceeding against the Appellant at this stage and I so hold. PER FOLASADE AYODEJI OJO, J.C.A.

DUTY OF COURT: DUTY OF THE COURT WHEN A NO CASE SUBMISSION HAS BEEN MADE.

In OCHONOGOR ALEX VS. FEDERAL REPUBLIC OF NIGERIA (2018) 7 NWLR (PT. 1618) 228, the Supreme Court per Nweze JSC held as follows:
“A survey of all binding authorities would reveal that where a no-case submission is made, the Court is not expected to volunteer any opinion on the evidence, DABOH VS. STATE (1977) 5 SC 197; ABACHA VS. STATE (2001) 3 NWLR (PT 699) 35;…
The rationale for this inviolable prescription is that, in such a situation, the duty of the trial Court is limited to a finding whether, prima facie, on the evidence adduced; the appellant had been linked with the alleged offence. Thus, in considering the defendant’s submission that he had no case to answer, the Court had no obligation to determine the question whether the evidence could sustain the conviction. R V OGUCHA (1959) 4 FSC 64; EKPO VS. STATE (2001) 7 NWLR (PT 712) 292;.. PER FOLASADE AYODEJI OJO, J.C.A.

CRIMINAL LAW: WHAT AMONUTS TO PRIMA FACIE CASE

The facts leading to this appeal have been ably narrated in the lead judgment. What amounts to a prima facie case has been recapulated in several decisions of the Supreme Court and diligently followed by this Court in a legion of cases. This phrase usually occurs in criminal cases when an accused makes a no case submission. The connection between the phrases “no-case to answer” and “prima facie’ case is that, in making a “no case to answer” submission, an accused person would always argue that from the totality of the evidence adduced by the prosecution, “no prima facie’ case has been disclosed which link him to the commission of the offences(s) charged. It therefore means that, when a no case submission is made, the defence is merely saying that the evidence adduced by the prosecution has not rebutted the presumption of innocence which enure to him by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, such that he will be required to offer some explanation. See Faith Ajufo v. The State (2013) LPELR — 20279 (CA); Shatta v. F.R.N. (2009) 10 NWLR (Pt.1149) 403 and Ajiboye & Anor v. State (1995) 8 NWLR (Pt.414) 408. Thus in Duru v. Nwosu (1989) 1 NWLR (pt. 113) 24 at 43, Nnamani, JSC (of blessed memory) defined the phrase “prima facie’ case as follows:

“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 worthwhile 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.” The evidence on record show that, the Appellant was charged along with others for the offences of conspiracy to commit a misdemeanor, and in view of the admission of the co-accused, it is proper that he offer some explanation. It is for that reason and the fuller reason ably adumbrated in the lead judgment, that I agreed that this appeal has no merit. It is hereby dismissed. PER FOLASADE AYODEJI OJO, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

LATEEF AYEGBAJEJE APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Oyo State sitting in its appellate jurisdiction at Ibadan in Charge Nos. I/3CA/2013 delivered on the 8th of May 2014.

The Appellant, along with two others were arraigned before the Chief Magistrate Court, Moniya on a two count charge for the offences of conspiracy to commit misdemeanor to wit: forcible entry contrary to and punishable under Section 517 of the Criminal Code, Cap 38 Laws of the Oyo State of Nigeria and holding possession of a landed property by erecting structures on it without colour of right in a manner likely to cause breach of peace contrary to and punishable under Section 82 of the Criminal Code Cap 38, Vol.II Law of Oyo State of Nigeria 2000. In the course of the trial at the Chief Magistrate Court the prosecution called four witnesses and tendered some Exhibits. At the close of the case of the prosecution, learned counsel to the Appellant and the two other accused persons filed a written address on a no-case submission before the trial Chief Magistrate who on the 30th of August 2012 overruled the

no-case submission and found the Appellant and his co-accused had a case to answer. See pages 31 – 34 of the Record.

The trial Chief Magistrate at page 34 of the Record held as follows:
“In the instant case I am of the view that the accused persons need to offer explanation concerning the charges against them, and for this, I overrule the no-case submission made and therefore call on the three accused persons to make a defence to the charges against them.”

Dissatisfied, the Appellant filed a Notice of Appeal at the Oyo State High Court on the 20th of September 2012. His appeal was heard by the Oyo State High Court and Judgment delivered on 8th of May 2014. His appeal was dismissed and the Ruling of the Chief Magistrate Court was affirmed. The judgment of the lower Court is at pages 243 – 249 of the Record.

The lower Court at pages 247 – 248 held as follows:
“Pronouncing on the offence of Conspiracy at No-case Submission stage needs special care. See NWESI VS. STATE (2011) CA. Since the facts relied on in Count one (I) are interwovened with that of Count two (II) and also the issue may not be

adequately addressed or resolved without delving into the substantive charge, it is not prudent to treat the offence of Conspiracy solely or independently at this stage.
The other ground of attack on the ruling is that the issue involves dispute over land in respect of which judgments had been delivered or given. It is not in every circumstance that issue of dispute over the ownership of land is raised that the accused will be discharged. See TONGO VS. C.O.P (2007) 12 NWLR (PT. 1049) 525.
The No-Case Submission before the Magistrate Court was not even based upon the defence of bonafide claim of right rather it was based upon whether the judgments tendered were in respect of the land in dispute and whether title has been proved by the Complainant/Prosecution.
The issues cannot be effectively addressed at this stage. All the facts relevant on all the tendered judgments are not yet before the said Court. It will therefore, be premature for the learned trial Chief Magistrate to find on title or applicability of the judgments. I find that since this matter is coming up at interlocutory stage it is premature to find on the sufficiency of the available

stage to sustain the charge. Rather by the submission the issue is whether he ought to offer explanations/ response to the evidence thus far led against him. I find that the Appellant ought to render evidence in defence of the evidence adduced against him touching his activities on the land. See EMEDO VS. THE STATE (2002) 15 NWLR (PT. 789) 196. There is no merit in this appeal. Therefore, I uphold the Ruling of No-Case Submission delivered by learned Chief Magistrate Adebisi.”

Dissatisfied with the decision of the High Court, the Appellant lodged a further appeal to this Court. The Notice of Appeal filed on 4th of July 2014 contains four Grounds. The Record of Appeal transmitted on 30/12/2014 was deemed as properly compiled and transmitted on 12/03/2015.

Parties filed and exchanged their respective Briefs of Argument. The Appellant’s Brief of Argument filed on 12/05/2015 was deemed as properly filed on 30/04/2019. The Respondent’s Brief of Argument was filed on 28/05/2019.

On 22/01/2020 when this appeal was argued, learned counsel representing both parties adopted and relied on their respective briefs of argument. While the

Appellant’s Counsel argued in favour of allowing the appeal, Counsel representing the Respondent submitted in favour of its dismissal.

Learned Counsel to the Appellant formulated the following issues for determination:
1. Whether by the totality of evidence led and Exhibits tendered, a prima facie case has been made out by the prosecutor to warrant calling upon the Appellant to enter his defence.
2. Whether an adjudged trespasser (as PW1) on a parcel of land, could still instigate a criminal prosecution against a person on a land he had been restrained and adjudged a trespasser.

For his part, Learned Counsel to the Respondent formulated a sole issue for determination to wit:
“From the evidence adduced by the trial Court, has a prima facie case been established against the Appellant to warrant him entering a defence to the charge?”

I have critically examined the issues formulated by both parties and I am of the firm view that the two (2) issues formulated by the Appellant can be subsumed into the Respondent’s lone issue. I therefore adopt the lone issue formulated by the Respondent with some slight

modification as the issue for determination in this appeal. The issue for determination in this appeal is as follows:
“Whether the lower Court was right when it affirmed the decision of the trial Court that a prima facie case has been established against the Appellant.”

It is the submission of learned counsel to the Appellant that the Respondent failed to prove the allegations against the Appellant as required by law. He cited in aid of his submission Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the cases of UBANATU VS. COP (2000) FWLR (PT. 1)138 AT 140; AJIDAGBA VS. IGP (1958) 3 FSC 5 AT 6; AND IBEZIAKO VS. COP (1963) 1 SCNLR, WLR 99.

He further relied on the cases of ADEYEMI VS. THE STATE (1991) 6 NWLR (PT. 195) 35 AND OSARIDON OKORO VS. THE STATE (1988) 12 SC (PT. 11) 83 AT 103 to support his argument that a submission of “no-case” can be properly made when there has been no evidence to prove an essential element of the alleged offence and when the evidence adduced in the alleged offence has been so discredited as a result of cross examination or so manifestly unreasonable

that no reasonable tribunal could convict on it. He argued further that the Respondent did not prove the essential ingredients of the offence charged and that the lower Court failed to consider and/or apply the authorities cited and relied upon by the Appellant. Learned Counsel to the Appellant in conclusion urged us to resolve the two issues formulated on behalf of the Appellant against the Respondent and allow this appeal.

Arguing per contra, learned counsel to the Respondent drew our attention to the fact that a no-case submission can only be properly made and/or upheld when there is no evidence to prove an essential element of the alleged offence and when evidence of the prosecution has been so discredited under cross examination and so unreliable that no reasonable tribunal could safely convict on it.

He submitted further that the law is now trite beyond peradventure that if there is evidence on record sufficient enough to infer the connection of the accused with the alleged crime and suggest his guilt unless he makes an explanation, the no-case submission stands misplaced and must fail. She craved in aid the cases of STATE VS. AJULUCHUKWU

(2011) 5 NWLR (PT. 1230) 78 AT 89-90 PARAS H-A; CHIANUGO VS. THE STATE (2001) FWLR (PT. 74) 242 AT 252; AMINU VS. STATE (2005) 2 NWLR (PT. 909)180 AT 190 PARAS G-H.

He further relied on the case of ABACHA VS. THE STATE (2002) FWLR (PT. 118)1224 AT 1277 to support his argument that a prima facie case is not the same as proof which comes later when the Court has to make a finding as to whether the defendant is guilty or not. He also referred to the case of OHWOVORIOLE VS. FRN (2003) FWLR (PT. 141) 2019 AT 2045 and Section 286 of the Criminal Procedure Law Cap 39, Laws of Oyo State 2000 to support his argument that after the prosecution closes its case all that is required by the Court is to determine whether there is evidence against the Defendant to require the defence to lead evidence in explanation of some facts and not whether the evidence is enough to secure a conviction.

On the offence of Conspiracy, learned counsel to the Respondent drew our attention to the fact that the Appellant and the other two defendants charged together at the trial Court did not deny erecting structures on the land in dispute. He submitted that this being so, the only

way the Appellant may possibly justify his alleged encroachment on the land is to enter his defence. He craved in aid the cases of SHODIYA VS. THE STATE (1992) 3 NWLR (PT. 230) 457 AND IKEMSON VS. THE STATE (1989) 3 NWLR (PT. 110) 455. He emphasized that it is not necessary for a Court at the stage of consideration of no-case submission to determine if the evidence is sufficient to justify a conviction. He submitted that all that is required of the Court is to satisfy itself that there is a prima facie case requiring some explanation from the defendant. He therefore urged us to dismiss the appeal.

Civil Law Systems. Our procedure is accusation in the sense that the innocence of the accused is presumed until he is proved guilty by the prosecution under the inquisitorial system of trial which obtains in most continental legal systems, the judge plays a dynamic role in cross examining litigants and witnesses and the accused’s guilt is presumed until he proved his innocence.”

The concept of no-case submission in our Criminal Procedure Laws has its origin in the Constitutional rebuttable presumption of innocence in favour of any person charged before a Court of law with the commission of a crime. See Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides thus:
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Provided that nothing in this Section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
The burden on the prosecution to prove its case against the defendant starts from arraignment until such a time in the proceedings when the

evidence adduced is such that it apparently shows reasonable connection or link between the Defendant and the commission of the offence. It is only after this burden has been discharged that the defendant can be called upon for his own explanations. In other words it is only when the prosecution has shown that a defendant is involved in the commission of an offence under the law that a prima facie rebuttal of the presumption of innocence would have been made and if no explanation is made by the defendant, the prosecution evidence would be deemed sufficient by the Court to convict for the offence charged. The prosecution must have disclosed a prima facie case before the defendant can be called upon to offer his own explanation. See DURU VS. NWOSU (1989) 4 ALL NWLR (PT. 113) 23 AT 41; AROMIRE VS. AWOYEMI (1972) 2 SC 1; SSGMBH VS. JUNJI INDUSTRIES LTD. (2010) 11 NWLR (PT. 1206) 589 ANDIKOMI VS. THE STATE (PT. 28) 340 AT 366.
The law however commends that where a defendant is of the view that the evidence adduced by the prosecution at the close of its case in respect of any or all of the offence(s) he is tried for is not sufficient in terms of quantity and

quality to show that the ingredients or elements of the offence(s) have any reasonable connection with or link to him, he may pray the trial Court by way of a no-case submission to discharge him of the offence(s). See BELGORE VS. FRN & ANOR. (2018) LPELR – 47471(CA); IBEZIAKO VS. COP (1963) 1 ALL NLR 61 AT 68 -69; DR. OLU ONAGORUWA VS. THE STATE (1993) 7 NWLR (PT. 303) 49; UBANATU VS. COP (2000) 2 NWLR (PT. 643) 115 AND EKWUNUGO VS. FRN (2008) 15 NWLR (PT. 111) 630.
In IBEZIAKO VS. COP (1963) 1 ALL NLR 61, the Supreme Court per Ademola CJF held at pages 68 – 69 as follows:
“A submission that there is no-case to answer may be properly 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.”
It is significant to note that at the case of no-case submission the only evidence before the trial Court is that adduced by the prosecution against the defendant. Consequently, in the

determination of whether a prima facie case has been made out or disclosed by such evidence, a trial Court does not embark on the appraisal of the entire facts and assessment or evaluation of the evidence in the sense of proof of the offence(s) beyond reasonable doubt. In other words, what the Court should consider at the stage of a no-case submission is not whether the evidence adduced by the prosecution against the defendant is sufficient to justify or warrant conviction for the offence(s) but whether the evidence on its face has shown real and direct commission to or link between the defendant and the commission of the criminal offence he was charged with in terms of the essential ingredients or elements of the offence(s) which would necessitate and require some explanations from him. See OMUEDA VS. FRN (2018) LPELR – 46592 (CA); TONGO VS. C.O.P. (2007) 12 NWLR (PT. 1049); DESTRA INVESTMENT LTD. VS. FRN (2017) 2 NWLR (PT. 1550 485 AT 513; FRN VS. AGI (2018) LPELR – 46979 (CA); EKWUNUGO VS. FEDERAL REPUBLIC OF NIGERIA (2008) 15 NWLR (PT. 1111) 630 AND DABOH VS. THE STATE (1977) 5 SC 197.
In OCHONOGOR ALEX VS. FEDERAL REPUBLIC OF NIGERIA

(2018) 7 NWLR (PT. 1618) 228, the Supreme Court per Nweze JSC held as follows:
“A survey of all binding authorities would reveal that where a no-case submission is made, the Court is not expected to volunteer any opinion on the evidence, DABOH VS. STATE (1977) 5 SC 197; ABACHA VS. STATE (2001) 3 NWLR (PT 699) 35;…
The rationale for this inviolable prescription is that, in such a situation, the duty of the trial Court is limited to a finding whether, prima facie, on the evidence adduced; the appellant had been linked with the alleged offence. Thus, in considering the defendant’s submission that he had no case to answer, the Court had no obligation to determine the question whether the evidence could sustain the conviction. R V OGUCHA (1959) 4 FSC 64; EKPO VS. STATE (2001) 7 NWLR (PT 712) 292;…
Learned Counsel for the Appellant would appear to rate two dissimilar concepts in our accusatorial jurisprudence, namely, prima facie case and proof beyond reasonable doubt, equiponderantly! With profound

respect, this sort of fallacious obfuscation of settled concepts must be dissipated without much ado. Ever since Abbot FJ, in AJIDAGBA VS POLICE (1958) 3 FSC 5, approvingly, adopted the definition of the phrase “prima facie” case from the Indian decision in SHER. SINGY VS. 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 of such that if un-contradicted and if believed, will be sufficient to prove the case against the defendant.”
The summary of all I have been saying is that a trial Court should simply consider whether the evidence adduced before it against the defendant at a judicial glance or first appearance discloses a “prima facie case”. If the trial Court considers that a prima facie case has been disclosed, a legal duty is placed on the defendant to offer explanations without which the Court could convict him in respect of the offence(s).
This is why in our adversarial system, one does not begin to inquire whether a defendant is guilty of a crime until it has been established that a crime has been

committed and the defendant is linked as a culprit.
The expression “prima facie case” has received judicial pronouncements in criminal matters. See AJIDAGBA VS. INSPECTOR GENERAL OF POLICE (1958) NSCC 20 AND GODWIN DABOH & ANOR. VS. THE STATE (1977) 5 SC 197.
In AJIDAGBA VS. THE STATE (SUPRA) Abbot FJ at pages 21 – 22 held as follows:
“We have been at some pains to find a definition of the term “prima facie case”.
The term so far as we can find has not been defined either in the English or in the Nigeria Court. In an Indian Case however, Sher Singh Vs. Jtendrana Ihsen (1931) I.LR 50 Cal. C275 we find the following dicta:
What is meant by a prima facie case? It only means that there is a ground for proceeding…
But a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is guilty or not…
The evidence discloses a prima facie when it is such that if uncontradicted and it believed it would be sufficient to prove the case against the defendant per Lort-Williams J.”
In GODWIN DABOH & ANOR. VS. THE STATE

(SUPRA) Udo-Udoma JSC at pages 209 – 211 held thus:
“Before however, embarking upon such an exercise, it is perhaps expedient here to observe that it is well known rule of criminal practice, that in criminal trial, at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of an accused person postulate one or two things or both of them at once.
Firstly, such a submission postulates that there has been throughout the trial no legal admissible evidence at all against the accused person on behalf of whom the submission has been made linking him in any way with the commission of the offence with which he has been charged, which would necessitate his being called upon for his defence.
Secondly, as has been so eloquently submitted by Chief Awolowo, that whatever evidence there was which might 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 criminal guilt in the accused concerned and in the case of trial by jury, that the case ought therefore to be withdrawn from the jury and ought not to go for a

verdict. On the other hand, 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 an accused person with the commission of the offence charged might be, the case ought to be allowed to go to the jury. 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 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 legal admissible evidence linking the accused person with the commission 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.”
I wish to make it abundantly clear that at the stage of no-case submission, the Court is not called upon to express any opinion on the evidence before it as to their probative value but to simply rule on whether there exists legal admissible evidence linking the Defendant with the commission of the alleged offence(s). If the no-case submission is on the

basis of some discredited evidence, such discredited evidence must be on the face of the printed record and in respect of relevant and material fact.
Furthermore, at this stage the judge does not write a judgment and it is not his 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 the evidence of the prosecution is unreliable. The decision to uphold or reject the no-case submission should not depend upon whether the trial Court would at that stage convict or acquit but upon whether the evidence is such that a reasonable tribunal might convict on the evidence as it stands.

whatever evidence there was which might have linked him with the commission of the offence has been so discredited under cross examination that no reasonable Court can be called upon to act, let alone rely on to establish the guilt of the Appellant.

I have painstakingly considered the evidence of the four (4) witnesses called by the Respondent contained at pages 8 – 20 of the record. I have also read and considered in detail the written address on the no-case submission made by learned counsel to the Appellant at pages 22 – 30 of the record. It is my considered view that a prima facie case has been made out against the Appellant to warrant an explanation from him and I so hold. The evidence of P.W.1 – P.W.4 and the Exhibits tendered are to the effect that:
i) The Appellant with two (2) others encroached upon a portion of land situate at Ahoro-Ika Are Onibon Village which PW1 bought from the Are Onibon Family in 1976. On 08/01/1977, PW1 executed an agreement as evidence of his purchased and after that gained an immediate and undisturbed possession of the land. PW1 also obtained a Certificate of Occupancy in respect of the land as

required of him by law. That Certificate has not been revoked.
ii) The Appellant with two (2) others took over part of PW1’s land by building different structures on it without any authority and/or right whatsoever. It is further the evidence before the Court that PW1 was attacked on 01/04/2012 when he went with four (4) others to help in the removal of blocks illegally put on his land.

In its judgment, the lower Court found as follows at page 248:
“I find that since this matter is coming up at interlocutory stage it is premature to find on the sufficiency of the available

evidence to sustain the charge.
Rather by the submission, the issue is whether he ought to offer explanation/response to the evidence thus far led against him.
I find that the Appellant ought to render evidence in defence of the evidence adduced against him touching his activities on the land. See EMEDO VS. THE STATE (2002) 15 NWLR (PT. 789) 196.”

The above finding of the lower Court cannot be faulted. The argument of learned counsel to the Appellant that since other Courts of record have restrained and adjudged PW1 a trespasser on the land in dispute, he (PW1) lacks the vires to instigate a Criminal prosecution against the Appellant is premature at this stage. This is because as I stated earlier, at the stage of no case submission the Court is not called upon to express any opinion on the probative value of the evidence before it. All that is required of the Court is to rule whether there exists legal admissible evidence to link the defendant with the commission of the alleged offence.

The inevitable conclusion is that the Appellant has some explanation to make as a prima facie case has been made against him by the Respondent at the

trial. The sole issue is thus resolved against the Appellant.

I affirm the decision of the lower Court at page 248 of the record that the Appellant has an obligation to render evidence in defence of the evidence adduced against him touching his activities on the land.

I hold that this appeal is needless, time wasting and frivolous and it is dismissed in its entirety. I affirm the decision of the lower Court delivered on 8th May 2014 in SUIT NO.I/3CA/2013 affirming the Ruling of the trial Chief Magistrate delivered on 20th of August 2010 in Charge NOS.I/33CA/2012.

It is ordered that the case be remitted back to the trial Chief Magistrate’s Court, Moniya for the Appellant to enter his defence.

JIMI OLUKAYODE BADA, J.C.A.: I read in advance, the lead Judgment of my Lord FOLASADE AYODEJI OJO, JCA, just delivered.

My Lord has dealt with the issues in this appeal adequately and I agree with the reasons given therein as well as the conclusion reached.

I am also of the view that this appeal lacks merit because there is admissible evidence linking the Appellant with the commission of the offence.

The appeal is also

dismissed by me.

I abide by the consequential orders made in the said lead Judgment.

HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading before now, the judgment just delivered by my learned brother, Folasade Ayodeji Ojo, JCA. I agree with my learned brother that the appeal has no merit and should be dismissed.

innocence which enure to him by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, such that he will be required to offer some explanation. See Faith Ajufo v. The State (2013) LPELR — 20279 (CA); Shatta v. F.R.N. (2009) 10 NWLR (Pt.1149) 403 and Ajiboye & Anor v. State (1995) 8 NWLR (Pt.414) 408. Thus in Duru v. Nwosu (1989) 1 NWLR (pt. 113) 24 at 43, Nnamani, JSC (of blessed memory) defined the phrase “prima facie’ case as follows:
“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 worthwhile 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.”

The evidence on record show that, the Appellant was charged along with others for the offences of conspiracy to commit a misdemeanor, and in view of the admission of the co-accused, it is proper that he offer some explanation. It is for that reason and the fuller reason ably adumbrated in the lead judgment, that I agreed that this appeal has no merit. It is hereby dismissed.

Appearances:

OLAWALE SONIBARE For Appellant(s)

O.O. OGUNDELE Assistant DPP Oyo State Ministry of Justice, Oyo State. For Respondent(s)