FRN v. UMAR (2022)

FRN v. UMAR

(2022)LCN/16698(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, August 04, 2022

CA/A/CR/461C/2021

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

FEDERAL REPUBLIC OF NIGERIA APPELANT(S)

And

AIR MARSHAL MOHAMMED DIKKO UMAR RESPONDENT(S)

RATIO

WHETHER OR NOT A DEFENDANT HAS AN UNDISPUTED RIGHT TO MAKE A NO-CASE SUBMISSION

The law is settled and trite that a Defendant has an undisputed right to make a no-case submission under Section 302 of the Administration of Criminal Justice Act (ACJA) 2015.

THE DUTY OF THE COURT WHEN CONSIDERING A SUBMISSION OF NO-CASE

The Court has the duty under Section 303 (3) (a) of the ACJA, 2015, when considering a submission of no-case, to consider along with the above stated two (2) circumstances or situations, whether “an essential element of the offence has been proved.” In consequence, a submission that there is no case to answer before a Court can only be of any moment if, the essential element of the offence has not been proved. It was held that a no-case submission can be made and upheld where the prosecution “has failed to establish a prima facie case … or establish the ingredients of the offence against the accused” per Onnoghen, JSC as he then was in SUNNY TONGO & V. COMMISSIONER OF POLICE 2007 12 NWLR PT. 1049 525.
At the stage of determining whether or not a prima facie case has been made out against the Respondent, it must be noted and emphasized that the Court is not expected to evaluate the evidence based on the credibility of the witnesses who have testified for the prosecution. What the Court should concern itself with is to determine whether or not the evidence adduced by the prosecution ex facie, discloses a prima facie case or establishes the ingredients of the offence allegedly committed by the Defendant. See the cases of AJIBOYE V. STATE 1995 8 NWLR PT. 414 408 and ILLIYASU SUBERU V. THE STATE supra. PER WILLIAMS-DAWODU, J.C.A.

DEFINITION OF THE OFFENCE OF MONEY LAUNDERING

Section 15(2)(b) and (d) of the Money Laundering (Prohibition) Act, 2011 provide as follows respectively:
“15 (2) Any person or body corporate, in or outside Nigeria, who directly or indirectly –
(b) converts or transfers; or
(d) acquires, uses, retains or takes possession or control of, any fund or property, knowingly or reasonably ought to have known that such fund or property is, or forms part of the proceeds of an unlawful act commits an offence of money laundering under this Act.

The above statutory provisions appear clear, plain and unambiguous and in interpreting same, the Court should attach to the words used by the legislature their ordinary grammatical meanings. It is now settled that the “Golden Rule” for interpretation of statutes is that “where the words are clear, plain and unambiguous, there is no need to give them any other meaning than their ordinary, natural and grammatical construction would permit, unless that would lead to absurdity” – per Adekeye, JSC in the case of JOSIAH ADETAYO V. KUNLE ADEMOLA 2010 15 NWLR PT. 1215 169. See also the cases of AFRICAN NEWSPAPER LTD. V. FEDERAL REPUBLIC OF NIGERIA 1985 2 NWLR PT. 6 137 and VICTOR MANYO NDOMA-EGBA V. NNAMEKE CHIKWUKELUO CHUKWUOGOR 2004 6 NWLR PT. 869 382. PER WILLIAMS-DAWODU, J.C.A.

INGREDIENTS TO ESTABLISH THE OFFENCE OF MONEY LAUNDERING

Going by the clear words as provided in Section 15 (2) (b) and (d) of the Money Laundering (Prohibition) Act, 2011 as amended, to establish money laundering charge, it is necessary for the prosecution to prove that:
i. The defendant is a person or body corporate;
ii. The defendant converted or transferred fund or property;
iii. The defendant acquired, used, retained or took possession or control of fund or property;
iv. The fund or property was or formed part of the proceeds of an unlawful act; and
v. The defendant knew or reasonably ought to know that such fund or property was or formed part of the proceeds of an unlawful act.
Going in the case of GABRIEL DAUDU V. FEDERAL REPUBLIC OF NIGERIA 2018 10 NWLR PT. 1626 169 at 183, per Aka’ahs, JSC, the apex Court held, inter alia, that:
“Proving money laundering cases is a herculean task because it requires a prior establishment of the predicate offence before the money laundering aspect can be established. To obviate this problem a remedy was introduced statutorily inferring money laundering from not only the conduct of the defendant but his lifestyle …”
The above decision of the apex Court, which is binding on all lower Courts, including this Court and the trial Federal High Court, was applied by this Court in the case of EFCC V. THOMAS 2018 LPELR- 45547 (CA). PER WILLIAMS-DAWODU, J.C.A.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the ruling of the Federal High Court, Abuja, delivered by Hon. Justice Dr. Nnamdi O. Dimgba on February 23rd, 2021, wherein the lower Court upheld the submission of no case by the Respondent (the Defendant at the Court below) and discharged and acquitted him on Six (6) out of the Seven (7) Count Charge against him.

At the Court below, the Respondent was arraigned for money laundering on the following Seven (7) Count Charge:
COUNT 1
That you, Air Marshal Mohammed Dikko Umar, whilst being the Chief of Air Staff, Nigerian Air Force between September 2010 to September 2012 in Abuja, within the jurisdiction of this Honourable Court directly converted the United States Dollar equivalent of the aggregate sum of N4,846,630,000.00 (Four Billion, Eight Hundred and Forty-Six Million, Six Hundred and Thirty Thousand Naira) only removed from the accounts of the Nigerian Air Force, when you reasonably ought to have known that the said funds formed part of the proceeds of your unlawful activity (to wit: Criminal breach of trust and corruption) and you thereby committed an offence contrary to Section 15 (2) (b) of the Money Laundering (Prohibition) Act, 2011 (as amended) and punishable under Section 15 (3) of the same Act.
COUNT 2
That you Air Marshal Mohammed Dikko Umar, whilst being the Chief of Air Staff, Nigerian Air Force between November and December 2010 in Abuja within the jurisdiction of this Honourable Court did use the United States Dollar equivalent of the sum of N700,000.00 (Seven Hundred Million Naira) (sic) only removed from the accounts of the Nigerian Air Force, to purchase for yourself a property lying and situate at No. 14, Vistula Close, Off Panama Street, Maitama Abuja, when you reasonably ought to have known that the said funds formed part of the proceeds of unlawful activity of Air Marshal Mohammed Dikko Umar (to wit: Criminal breach of trust and corruption) and you thereby committed an offence contrary to Section 15 (2) (d) of the Money Laundering (Prohibition) Act, 2011 (as amended) and punishable under Section 15 (3) of the same Act.
COUNT 3
That you, Air Marshal Mohammed Dikko Umar, whilst being the Chief of Air Staff, Nigerian Air Force between March and April 2012 in Abuja within the jurisdiction of this Honourable Court did use the United States Dollar equivalent of the sum of N860,000,000.00 (Eight Hundred and Sixty Million Naira) only removed from the accounts of the Nigerian Air Force, to purchase for yourself a property lying and situate at Plot No. 1853 Deng Xiao Ping Street, Off Mahathir Mohammed Street, Asokoro Extension Abuja when you reasonably ought to have known that the said funds formed part of the proceeds of unlawful activity (to wit: Criminal breach of trust and corruption) and you thereby committed an offence contrary to Section 15 (2) (d) of the Money Laundering (Prohibition) Act, 2011 (as amended) and punishable under Section 15 (3) of the same Act.
COUNT 4
That you, Air Marshal Mohammed Dikko Umar, whilst being the Chief of Air Staff, Nigerian Air Force between September and December 2012 in Abuja within the jurisdiction of this Honourable Court did use the United States Dollar equivalent of the sum of N500,000,000.00 (Five Hundred Million Naira) only removed from the accounts of the Nigerian Air Force, to purchase for yourself a residential property comprising a 4 Bedroom Duplex with Boys Quarters at Road 3B, Street 2, Mabushi Ministers Hill Abuja, when you reasonably ought to have known that the said funds formed part of the proceeds of your unlawful activity (to wit: Criminal breach of trust and corruption) and you thereby committed an offence contrary to Section 15 (2) (d) of the Money Laundering (Prohibition) Act, 2011 (as amended) and punishable under Section 15 (3) of the same Act.
COUNT 5
That you, Air Marshal Mohammed Dikko Umar, whilst being the Chief of Air Staff, Nigerian Air Force in the year 2011 in Abuja within the jurisdiction of this Honourable Court did use the United States Dollar equivalent of the sum of N250,000,000.00 (Two Hundred and Fifty Million Naira) only removed from the accounts of the Nigerian Air Force, to purchase for yourself a property situate at No. 14, Audu Bako Way, G.R.A Kano, when you reasonably ought to have known that the said funds formed part of the proceeds of your unlawful activity (to wit: Criminal breach of trust and corruption) and you thereby committed an offence contrary to Section 15 (2) (d) of the Money Laundering (Prohibition) Act, 2011 (as amended) and punishable under Section 15 (3) of the same Act.
COUNT 6
That you, Air Marshal Mohammed Umar, whilst being the Chief of Air Staff, Nigerian Air Force in the year 2011 in Abuja within the jurisdiction of this Honourable Court did use the United States Dollar equivalent of the sum of N160,000,000.00 (One Hundred and Sixty Million Naira) only removed from the accounts of the Nigerian Air Force, to purchase and renovate for yourself a property situate at No. 8, Kabala Road, Unguwanrimi, GRA Kaduna (3 Bedroom Duplex and 3 Rooms Boys Quarters) when you reasonably ought to have known that the said funds formed part of the proceeds of your unlawful activity (to wit: Criminal breach of trust and corruption) and you thereby committed an offence contrary to Section 15 (2) (d) of the Money Laundering (Prohibition) Act, 2011 (as amended) and punishable under Section 15 (3) of the same Act.
COUNT 7
That you, Air Marshal Mohammed Dikko Umar, whilst being the Chief of Air Staff, Nigerian Air Force in the year 2011 in Abuja within the jurisdiction of this Honourable Court indirectly transferred the sum of N66,000 and 000.00 (sic) (Sixty Six Million Naira) only into the Stanbic IBTC Account No: 9202077424 belonging to Capital Law Office from NAF Operations Account domiciled at UBA Plc for the Renovation/improvement of House No. 1853 Deng Xiao Ping Street, Off Mahathir Mohammed Street, Asokoro Extension Abuja, when you reasonably ought to have known that the said funds formed part of the proceeds of your unlawful activity (to wit: Criminal breach of trust and corruption) and you thereby committed an offence contrary to Section 15 (2) (b) of the Money Laundering (Prohibition) Act, 2011 (as amended) and punishable under Section 15 (3) of the same Act.

Being dissatisfied with the ruling of the Court below on March 8th, 2021 filed Notice and Six (6) Grounds of Appeal of same date and seeks the following reliefs in the main:
a. AN ORDER allowing the appeal.
b. AN ORDER setting aside the ruling of the lower Court which mainly upheld the no case submission of the Respondent and discharged and acquitted him on counts 1, 2, 3, 4, 5, and 6 save Count 7 of the charge.
c. A CONSEQUENTIAL ORDER directing the lower Court to order the Respondent to enter his defence on all the counts constituted in the charge.

Briefs of argument were exchanged in compliance with the rules of this Court. The Appellant’s dated and filed December 9th, 2021, deemed as properly filed and served on February 21st, 2022 and a reply brief dated and filed April 29th, 2022, deemed as properly filed and served on May 9th 2022 and were both settled by Mr. Sylvanus Tahir Esq. who urged that the appeal be allowed. The Respondent’s dated February 27th, 2022 was filed February 28th, 2022 and settled by Dr. Onyechi Ikpeazu SAN who on the other hand urged that the appeal be dismissed.

As garnered from the printed Record before this Court, the Respondent as the Defendant was accused of money laundering at the Court below vide a Seven Counts Charge dated and filed April 22nd, 2016 at the Court below. Trial commenced and after the case of the prosecution, the Respondent entered a no case submission. Upon the ruling of February 23rd, 2021 which is being appealed against, the Respondent’s submission was upheld in respect of Six (6) out of Seven (7) of the Counts and he was discharged in their regard and ordered to enter his defence on Count 7.

The parties have distilled the following issues for the determination of this appeal:
APPELLANT’S THREE (3) ISSUES
“i. Whether the lower Court was not wrong in discharging and acquitting the respondent on count 1 of the charge upon a no case submission, when the Court flagrantly failed to take into consideration well settled principles dealing with no case submission, which requires that evidence adduced by the prosecution discloses a prima facie case linking the accused with the commission of the alleged offence to warrant him enter his defence as against proof beyond reasonable doubt, which comes later after the defence of the accused (Ground 1).
ii. Whether the lower Court was correct/justified in its reasoning in discharging/acquitting the respondent on counts 1 to 6 of the charge on the grounds that the prosecution did not lead evidence to show that the respondent “removed” any such monies alleged in counts 1 to 6 of the charge from accounts of the Nigerian Air Force, and that none of the prosecution witnesses testified that the respondent “ordered, pressured” or “instructed” them to remove and deliver to the respondent monthly, when in fact evidence was led by the prosecution showing that part of the monies removed from the accounts of the Nigerian Air Force were used to purchase/acquire several properties, (subject of counts 2-6) on the instructions and for the benefit of the respondent, which was not denied by the respondent (Grounds 2, 4, 5 and 6).
iii. Whether the lower Court was not in error when the Court discharged/acquitted the respondent on the allegations of money laundering as constituted in counts 1-6 of the charge by holding that the alleged laundered funds was “upkeep,” which was spent at the discretion of the respondent in keeping with established tradition, practice or norm, though unsupported by government financial regulations (Ground 3).”
RESPONDENT’S THREE (3) ISSUES
“1. Whether the learned trial Judge was not correct in sustaining the No Case Submission in Count 1 on the premise that the Appellant presented contradictory accounts not only of the total amount involved in the Count but with respect to the purpose for which the money said to be delivered to the Respondent was applied.
2. Whether the learned trial Judge was correct in holding that the Appellant failed to establish the essential elements of the offence alleged in Counts 2, 3, 4, 5 and 6 of the Charge.
3. Whether the learned trial Judge was correct in relying on the evidence of PWI to the effect that the money said to have been delivered to the Respondent monthly, was “upkeep” money.”

I have carefully considered the foregoing issues as distilled by the parties and having so done, in my view and humbly, a single issue as follows will fairly and justly determine this appeal:
“Whether or not the Court below was right when it held in its ruling that the Respondent had no case to answer with regard to Counts 1 to 6 of the Seven (7) Count Charge proffered against the Respondent.”

SUBMISSIONS MADE ON BEHALF OF BOTH PARTIES
I have thoroughly and calmly read the briefs of argument of the Appellant and the Respondent as well as the Record before this Court. In a nutshell and respectfully to both sides, I have decided to put the submissions by both parties and the kernel of their arguments in the main and briefly thus:
The Appellant’s position is that the Respondent has a case to answer in all that it has presented so far and should therefore be ordered to enter his defence as opposed to the finding of the Court below. On the other hand the Respondent submits that the Court below was correct in its findings and that this appeal should be disallowed.

THE POSITION OF THE COURT
Having so very carefully considered the processes as already stated, I now proceed with the determination of the singular issue as adopted herein which is reproduced hereunder for ease of reference:
SOLE ISSUE
“Whether or not the Court below was right when it held in its ruling that the Respondent had no case to answer with regard to Counts 1 to 6 of the Seven (7) Count Charge proffered against the Respondent.”

A total of thirteen (13) witnesses were called by the Appellant whilst the Respondent thereafter on the other hand made a submission of no case which was upheld by the Court in its ruling. The Appellant, being dissatisfied, has for that reason approached this Court as aforesaid with its Notice of Appeal of Six (6) Grounds on pages 1184 to 1195 of the printed record.

The law is settled and trite that a Defendant has an undisputed right to make a no-case submission under Section 302 of the Administration of Criminal Justice Act (ACJA) 2015.

The Section provides as follows:
“Section 302
The Court may, on its own motion or on application after hearing the evidence for the prosecution, where it considers that the evidence against the defendant or any of several defendants is not sufficient to justify the continuation of the trial, record a finding of not guilty in respect of the defendant without calling on him or them to enter his or their defence and the defendant shall accordingly be discharged and the Court shall then call on the remaining defendant, if any, to enter his defence.”
Prior to the enactment of the ACJA, pronouncements and decisions on the jurisprudence of no-case submission were held as in the cases of IBEZIAKO V. C. O. P 1963 1 SCNLR 99, MUMUNI V. STATE 1975 6 SC 79, DABOH V. STATE 1977 5 SC 197, OHUKA V. STATE 1988 1 NWLR PT. 72 539, NWANKWO V. SHITTA-BEY 1991 10 NWLR PT. 621 75, AKWA V. C. O. P. 2003 4 NWLR PT. 811 461, IGABELE V. STATE 2004 15 NWLR PT. 896 314, AMINU V. STATE 2005 2 NWLR PT. 909 180, GABRIEL AITUMA V. STATE 2006 10 NWLR PT. 989 452, among many other cases, wherein the right of an accused person to make a no-case submission after the close of the prosecution’s case was judicially acknowledged and discussed.

The apex Court in the case of ILLIYASU SUBERU V. THE STATE 2010 8 NWLR PT. 1197 586, per John Afolabi Fabiyi, JSC, in explaining what the legal phrase, “no case-submission”, connotes stated as follows:
“A no-case submission only means that there is nothing in the evidence adduced by the prosecution that would persuade the Court to compel the accused to put up his defence.”
In the cases of IBEZIAKO V. C.O.P. supra, GABRIEL AITUMA V. THE STATE supra and ILLIYASU SUBERU V. THE STATE supra, it was held that a no-case submission can be properly made and upheld under any of the following two circumstances or situations or both, at the close of the prosecution’s case:
“(1) When there has been no evidence connecting the accused person with the alleged offence
(2) When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is manifestly unreliable that no reasonable Tribunal could safely convict on it.”

The Court has the duty under Section 303 (3) (a) of the ACJA, 2015, when considering a submission of no-case, to consider along with the above stated two (2) circumstances or situations, whether “an essential element of the offence has been proved.” In consequence, a submission that there is no case to answer before a Court can only be of any moment if, the essential element of the offence has not been proved. It was held that a no-case submission can be made and upheld where the prosecution “has failed to establish a prima facie case … or establish the ingredients of the offence against the accused” per Onnoghen, JSC as he then was in SUNNY TONGO & V. COMMISSIONER OF POLICE 2007 12 NWLR PT. 1049 525.
At the stage of determining whether or not a prima facie case has been made out against the Respondent, it must be noted and emphasized that the Court is not expected to evaluate the evidence based on the credibility of the witnesses who have testified for the prosecution. What the Court should concern itself with is to determine whether or not the evidence adduced by the prosecution ex facie, discloses a prima facie case or establishes the ingredients of the offence allegedly committed by the Defendant. See the cases of AJIBOYE V. STATE 1995 8 NWLR PT. 414 408 and ILLIYASU SUBERU V. THE STATE supra.

In the instant case, counts 1 to 6 of the 7 Count Charge have accused the Respondent of using and removing funds from the accounts of the Nigerian Air Force, “when he reasonably ought to have known that the said funds formed part of the proceeds of his unlawful activity (to wit: Criminal breach of trust and corruption) and thereby committed an offence contrary to Section 15 (2) (b) and (d) of the Money Laundering (Prohibition) Act, 2011 (as amended) and punishable under Section 15 (3) of the same Act.”

Section 15(2)(b) and (d) of the Money Laundering (Prohibition) Act, 2011 provide as follows respectively:
“15 (2) Any person or body corporate, in or outside Nigeria, who directly or indirectly –
(b) converts or transfers; or
(d) acquires, uses, retains or takes possession or control of, any fund or property, knowingly or reasonably ought to have known that such fund or property is, or forms part of the proceeds of an unlawful act commits an offence of money laundering under this Act.

The above statutory provisions appear clear, plain and unambiguous and in interpreting same, the Court should attach to the words used by the legislature their ordinary grammatical meanings. It is now settled that the “Golden Rule” for interpretation of statutes is that “where the words are clear, plain and unambiguous, there is no need to give them any other meaning than their ordinary, natural and grammatical construction would permit, unless that would lead to absurdity” – per Adekeye, JSC in the case of JOSIAH ADETAYO V. KUNLE ADEMOLA 2010 15 NWLR PT. 1215 169. See also the cases of AFRICAN NEWSPAPER LTD. V. FEDERAL REPUBLIC OF NIGERIA 1985 2 NWLR PT. 6 137 and VICTOR MANYO NDOMA-EGBA V. NNAMEKE CHIKWUKELUO CHUKWUOGOR 2004 6 NWLR PT. 869 382.

Going by the clear words as provided in Section 15 (2) (b) and (d) of the Money Laundering (Prohibition) Act, 2011 as amended, to establish money laundering charge, it is necessary for the prosecution to prove that:
i. The defendant is a person or body corporate;
ii. The defendant converted or transferred fund or property;
iii. The defendant acquired, used, retained or took possession or control of fund or property;
iv. The fund or property was or formed part of the proceeds of an unlawful act; and
v. The defendant knew or reasonably ought to know that such fund or property was or formed part of the proceeds of an unlawful act.
Going in the case of GABRIEL DAUDU V. FEDERAL REPUBLIC OF NIGERIA 2018 10 NWLR PT. 1626 169 at 183, per Aka’ahs, JSC, the apex Court held, inter alia, that:
“Proving money laundering cases is a herculean task because it requires a prior establishment of the predicate offence before the money laundering aspect can be established. To obviate this problem a remedy was introduced statutorily inferring money laundering from not only the conduct of the defendant but his lifestyle …”
The above decision of the apex Court, which is binding on all lower Courts, including this Court and the trial Federal High Court, was applied by this Court in the case of EFCC V. THOMAS 2018 LPELR- 45547 (CA).

In plain language, a predicate offence is an earlier offence upon which the offence being tried is based, connected or predicated. In other words, a predicate offence is the foundational offence upon which the later offence is built or stands. With regard to this case, the predicate offence upon which the amended charge is anchored is clearly as follows:
Counts 1-7 – Criminal breach of trust and corruption as being alleged against the Respondent.

In the determination whether or not the Respondent has a case to answer having stated the foregoing, one finds instructive the position of the apex Court as simply and clearly put in pursuit of substantial justice in the case of IKUFORIJI V. FRN (2018) LPELR- 43884 (SC) per Ejembi Eko JSC as he then was, on the issue of no case submission to the effect that the Court below:
“…was not called upon to express an opinion on the evidence before it and the credibility of the witnesses was not in issue at that stage. What was expected of the trial Court was to do one of two things:
(a) To determine whether or not there is any legally admissible evidence linking the accused person with the commission of the offence with which he is charged and if the answer is yes, the Court dismisses the No Case Submission and tersely without saying more than that, there is a prima facie case for which the accused should enter his defence, or
(b) That there is indeed no case made by the prosecution for which he should be called upon to make his defence. The second option comes up where the Court of trial is satisfied that the prosecution witnesses have been so discredited by cross-examination that no reasonable Tribunal would convict upon it. Also that there is no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. That is that there is no evidence to prove an essential ingredient of the offence. See Tongo V COP (2007) 12 NWLR (Pt. 1049) 525; Ekwunugo V. FRN (2008) 15 NWLR (Pt. – 42267 (SC).
It needs be said that at this stage, which is after the prosecution has closed its case and the accused makes the no case submission, the Court of trial is not required to evaluate or give weight to the evidence led by the prosecution or to give a lengthy ruling if it is not upholding the no case submission. On the other hand, if it is upholding the No Case Submission, the Court considers that the witnesses as produced by the prosecution have been discredited under cross-examination and so the testimonies so proffered would be of no use. The addition is that there is no linkage between the offences charged and the accused persons. Either way a long drawn treatise is not expected since what is available is one side of the coin.”

Still on one side of the coin, one states that a brief summary of Counts 1 to 6 essentially is that the Respondent whilst being the Chief of Air Staff, Nigerian Air Force between September 2010 to September, 2012 in Abuja, directly converted the United States Dollar equivalent of the aggregate sum of N4,846,630,000.00 (Four Billion, Eight Hundred and Forty-Six Million, Six Hundred and Thirty Thousand Naira) only removed from the accounts of the Nigerian Air Force, when he reasonably ought to have known that the said funds formed part of the proceeds of his unlawful activity, Criminal breach of trust and corruption.
2. That United States dollar equivalent of N700,000,000.00 (Seven Hundred Million Naira) only was removed on the instruction of the Air Chief to purchase a property at No. 14 Vistula Close, off Panama Street, Maitama, Abuja,
3. That United States dollar equivalent of N860,000,000.00 was removed from the accounts of the Nigerian Air Force, with the knowledge of the Air Chief to purchase for him a property at Plot No. 1853 Deng Xiao Ping Street off Mahathir Mohammed Street, Asokoro Extension Abuja,
4. That United States dollar equivalent of N500,000,000.00 was removed to purchase for the Air Chief with his consent a residential property at Road 3B Street 2, Mabushi Minister’s Hill Abuja,
5. That United States dollar equivalent of the sum of N250,000,000.00 was removed from the accounts of the Nigerian Air Force with the knowledge of the Air Chief to purchase for him a property at No. 14 Audu Bako Way, GRA Kano,
6. That United States dollar equivalent of the sum of N160,000,000.00 was removed from the accounts of the Nigerian Air Force with the knowledge of the Air Chief to purchase and renovate for him a property at No. 8 Kabala Road, Unguwan Rimi, GRA Kaduna.

As analysed by the Court below, one agrees that a simple arithmetic of a monthly sum of N558,200,000.00 allegedly collected by the Respondent is well over the alleged sum of Four Billion, Eight Hundred and Forty-six Million, Six Hundred and Thirty Thousand (N4,846,639,000.00) Naira only and would amount to approximately N13,400,000,000.00 (Thirteen Billion and Four Hundred Million) Naira. However as contained in the Record the sum of money allegedly given monthly to the Respondent varied and was not constant from month to month, such as USD 812,500 in August 2011, USD 1,062,000 in November 2011 and differently for the other months within the period in question. It is necessary that the testimonies of the prosecution witnesses are considered.

From the testimony of the PW1, the system of budgeting in respect of the Headquarters Nigerian Air Force (NAF) Camp Abuja was that the personnel cost was often more than what was required. Therefore the NAF received about N4 Billion monthly and the actual figure usually used for salary monthly was between N2.3 Billion to N2.4 Billion. That from the balance of about N1.6 Billion the sum of N558,000,000.00 was set aside for the upkeep of the Chief of Air Staff, whom he referred to as his boss. That the Chief of Air Staff was always informed and given the amount and that there was no disbursement done without his authorization. See pages 1232 -1233 of the Record. The said N558,200,000.00, the PW1 claimed was usually taken by him to the Official Residence of the Chief of Air Staff and he was sometimes accompanied by the Finance Officer to witness the delivery of the money to the Air Chief and that was the practice till the retirement of the Air Chief. He testified that he believed that his boss used the money for whatever he wanted to do and that there were some properties he believed he used the money to purchase. See page 1234 of the Record. Specifically, the PW1 testified that his boss authorized the purchase of the property at Vistula Close in Count 2 in the sum of N700,000,000.00 which sum was to be taken “from the money we normally give to him monthly and I then directed the Finance Officer at the HQTS Group Captain Bukar to give the lawyer the equivalent of N700 Million which was given to the lawyer in USD”. See page 1235 of the Record. He testified further that the boss called him and asked to get him a house in Asokoro Area. That instruction according to the PW1 was carried out as the boss directed that one Barrister Umar known to the PW1 should go ahead with the purchase of Plot 1853 Deng Xiao Ping Street off Mahathir Mohammed Street Asokoro in the sum of N860 Million which is the property mentioned in Count 3. See page 1236. He stated further that it was his boss who requested that a reasonable house be found for him in Kano. The house in Kano was found for N250 Million which according to him, his boss gave him the sum and that is the property stated in Count 5. See pages 1237 to 1238 of the Record. In the same year 2011, upon his boss’s request No. 8 Kabala Road Kaduna mentioned in Count 6 was found and acquired, that it was paid for in United States dollar. See pages 1238 to 1239 of the Record. It is important to note that the Mabushi property at Minister’s Hill mentioned in Count 4 was after the Respondent had left the NAF service. See pages 1239 to 1241 of the Record. Further in particular, the PW2, the Barrister who was said to have arranged and secured the transactions in respect of the properties would appear to equally confirm the testimony of the PW1 especially on the purchase of the aforementioned properties. See pages 1298 to 1314 of the Record. Similar testimony by the PW3 on pages 1316 to 1320 of the Record, the PW4 on pages 1322 to 1324 of the Record, the PW8 at pages 1352 to 1357 of the Record and the PW9 on pages 1358 to 1396 of the Record. One must add that the testimonies of the foregoing witnesses would appear not to be discredited in the relevant and material parts as one finds in the Record with regard to the charge before the Court during cross-examination.

As instructively stated by the apex Court in the case of IKUFORIJI V. FRN supra there is need for caution from the Court particularly where the Court finds that given the testimonies before it, there is need for the Respondent to make some exculpatory clarifications in his own interest and defence against what has been presented to the Court, as only “one side” of the coin was yet heard. Therefore, as in IKUFORIJI V. FRN supra, one would equally echo thus:
“Taking a cue to that caution, the little I say the better. The much I can venture is that there is evidence linking the Respondent (insertion mine) to the offences charged for which a response from him is necessary to clear the air. What I am saying is that from the evidence proffered by the prosecution, the matter cannot just be waived off without a hearing from the accused appellant. See Duru V. Nwosu (1989) 1 NWLR (Pt. 113) 24 at 43, Ajiboye V State (1995) 8 NWLR (Pt. 414) 408, Odofin Bello v State (1967) NMLR 1. 17.”

In the light of the foregoing, one finds contrary to the position of the Court below. The sole issue herein is consequently resolved in favour of the Appellant. That being the position this appeal succeeds, is hereby allowed and the ruling of the Federal High Court delivered on February 23rd, 2021 by Hon. Justice Dr. Nnamdi O. Dimgba is hereby set aside, save its holding in respect of Count 7 therein. The Respondent is hereby ordered to enter his defence before the Court.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Elfrieda Oluwayemisi Williams-Dawodu, JCA.

I am in agreement with the reasoning and the conclusion that there is merit in this appeal. I also allow the appeal. It is of interest for us to look carefully at the concept of no case submission. No case submission has been well ingrained in our criminal procedure and it is surprising that we still have hitches and problems in understanding it or applying it in our criminal prosecutions.

In the recent decision of the Supreme Court in the case of Inspector General of Police v. Matthew Sonoma (2021) LPELR 53381 (SC), Peter-Odili, JSC, held thus:
“It needs be reiterated that in a criminal matter, a successful submission of no case to answer means no prima facie case has been made out against an accused person because the Prosecution has failed tom prove the essential ingredients of the offence charged against the accused person. In other words, there is no admissible evidence linking the accused person in anyway with the commission of the offence with which he had been charged with. Section 286 Criminal Procedure Act Cap. C41 Laws of the Federation 2004 states as follows: “If at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence the Court shall, as to that particular charge discharge him. Such a discharge is tantamount to an acquittal for which a plea of autrefois Prosecution”. Also, in the case of Sunday Chijioke Agbo & Ors v. The State (2010) LPELR – 4989 (CA), the Court of Appeal held thus: “The meaning of a no case submission is that there is no case for an accused person to answer as there is no evidence on which even if the Court believes it, it could convict. The question whether the Court does believe the evidence does not arise nor the credibility of the witness becomes an issue at this stage.” See also Tongo v. COP (2007) 12 NWLR (Pt. 1049), State v. Asunmo & Ors (2017) LPELR – 42G06 (CA).”
From the explanation always offered by this Court and the Supreme Court as reflected in the case of IGP v. Sonoma (supra), the bottom line is that the trial Court must be sure that there is no single evidence offered by the prosecution which if believed could convict the accused person before upholding the no case submission. If on the other hand, there is a single incriminating evidence, that would ordinarily require the explanation of the accused by way of defence, there would be a face value evidence for the accused to be called to enter defence. In such a case, the submission will be refused and the accused person called to put in his defence of the charge. Refusing a no case submission does not mean the accused is already presumed guilty of the offence. No! The accused is only called upon to now offer defence and belie the suspicion raised in the case of the prosecution. That now affords the trial Court the opportunity to have a full trial of the accused and have the evidence called appropriately tested to find out whether the evidence is credible and can be used to convict the accused. Remember that the proof in criminal cases is that of proof beyond reasonable doubt and it is only if and only if the prosecution can prove the allegation against a person accused beyond reasonable doubt that the Court would convict such an accused person.

In the instant case, there are evidence requiring an explanation from the accused respondent by way of defence. It is in that respect that I agree fully with the reasoning of my learned brother that the appeal be allowed, same is allowed by me. I abide by the consequential order therein made.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My Lords, I have been privileged to read in advance a draft copy of the leading judgment just delivered by my amiable Lord, Elfrieda Olayemisi Williams-Dawodu JCA. I am satisfied with the reasoning and conclusion reached therein to the effect that the appeal has merit and ought to be allowed in part save as to Count IV only on which the lower Court was right to have discharged the Respondent.

I shall by way of contributing to the rich analysis in the leading judgment just say a word or two.

The crux of this appeal, as admirably captured in the leading judgment, is whether or not the lower Court was right when it held that the evidence as led by the Appellant in the light of the offences with which the Respondent was charged, did not amount to any prima facie case against the Respondent, and for which it discharged him as having no case to answer.

Now, the position of the law is that where at the close of the Prosecution’s case, evidence has not been led in support of all or any of the essential elements of the offence(s) with which an Accused person was charged, such an accused person is said to have no case to answer and ought to be discharged at that stage without being called upon to enter upon his defense or make any explanation as that would amount to calling on the Accused person to prove his innocence.
In our system of administration of criminal justice, an Accused person, who is constitutionally presumed innocent until the contrary is proved, carries no duty under the law to prove his innocence and therefore, where the Prosecution fails to make out any prima facie against him he is entitled to be discharged without much ado by the Court. This is also the position where at the close of the Prosecution’s case, the evidence led by the Prosecution has become so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Tribunal can safely convict on it.
In Dr. Olu Onagoruwa V. The State (1993) 7 NWLR (Pt. 303) 49, the ingredients for a successful no case submission was so succinctly set out as follows, namely: (a) Where there is no evidence linking an Accused person to the offence; (b) Where the evidence of the Prosecution has been discredited under cross-examination or is so manifestly unreliable that no reasonable Court or Tribunal could convict on it; (c) Where an essential element of the offence is not established. See also The State V. Bello (1989) CLRN 370. See also Ubanatu V. COP (2000) 1 SC. 31, Omisore V. State (2004) 28 WRN 106, Ekwunugo V. FRN (2008) 15 NWLR (Pt. 111) 630, Practice Direction of Lord Parker Lord Chief justice of England in 1962 1 All ER 227.
In law therefore, to make out the essential elements of an offence is to make out a prima facie case against an Accused person for which he shall be called upon to defend himself on the charges against him. This simply implies that once at the close of the Prosecution’s case it is found or shown that no prima facie case has been made out against an Accused person, he shall at that stage be discharged and acquitted as there would be no basis for proceeding any further with the trial. See Chianugo V. The State (2002) 12 NWLR (Pt. 750) 228 at p. 233.

My Lords, what then is a prima facie case in law? A prima facie case has been defined generally to mean such as will prevail until contradicted or overcome by other evidence. A prima facie case is thus a case in which there is evidence which suffices to support the allegation made in it and which will stand unless there is evidence to rebut the allegation. See Blacks’ Law Dictionary, 9th Edition at p. 1159. See also Osborns Concise Law Dictionary, 8th Edition by Rutherford & Bone at p. 259. See further Emedo V. State (2002) 15 NWLR (Pt. 789) 196, Ikomi V. State (1986) 3 NWLR (Pt. 28) 340, Ugbede Ali V. State (2012) 10 NWLR (Pt.1309) at p. 589.
In Duru V. Nwosu (1989) 1 NWLR (Pt. 113) 24 at p. 43, Nnamani JSC (God bless His soul) had succinctly defined prima facie thus:
“It seems to me the simplest definition is that which says that there is ground for proceeding. In other words, that something has been produced to make it worthwhile to continue with the proceedings. On face of it, it suggests that the evidence produced so far indicates that there is something worth looking at.”

Thus, in considering a no case submission, the position of the law is that where at the close of the Prosecution’s case, evidence has not been led in support of all or any of the essential elements of the offence with which an Accused was charged, such an Accused person is said to have no case to answer and ought to be discharged at that stage without being called upon to enter upon his defense or make any explanation as that would amount to calling on the Accused person to prove his innocence.
In Ibeziako V. COP. (1963) 1 All NLR 61 at pp. 68 – 69, the Supreme Court per Ademola, CJF., held as follows:
“A submission that there is no case to answer may properly be made and upheld; (a) When there has been no evidence to prove an essential element in the alleged offence; (b) When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Tribunal could convict on it.”

In law, a trial Court is not at the stage of a no case submission to analyze, review or examine the credibility of evidence led as such can hardly been done without going into the merit or credibility of the evidence led. All that is required is for the trial Court to look at the evidence led so far to see whether or not there is any scintilla of evidence however slight connecting or linking the Accused person to the offence charged.
It follows that the operative word is ‘evidence’ however slight but linking the Accused person, as in the instant appeal the Appellant, to the offences charged.

It is true that in a criminal trial for any contradiction in evidence to be countenanced it must amount to material contradiction. In Onubogu V. The State (1974)9 SC I the Supreme Court Per Fatayi – Williams JSC (as he then was) had succinctly explained the rationale for the position of the law inter alia thus:
“Where one witness called by the prosecution in another case contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation such as showing that the witness is hostile, before they can ask the Court to reject the testimony of one witness in preference for the evidence of the discredited witness. It is not competent for the prosecution which called them to pick and choose between them. They cannot without showing clearly that one is hostile witness, discredit one and credit the other. See (Summer & Leivesly v. Brown & Co (1909), 25, TLR 745. We also think that even the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial judge, as was the case here to provide the explanation. One of the witnesses should furnish the explanation and thus give the defence the opportunity of testing, by cross-examination, the validity of the preferred explanation.”
See also Bassey V. The State (2012) All FWLR (Pt. 633) 1816 at p. 1832, where what amounts to substantial contradiction in evidence was explained thus:
“One evidence contradicts another piece of evidence when it says the opposite of what the other evidence has stated and not when there is just minor discrepancy between them. Two pieces of evidence contradicts one another when they are themselves inconsistent on material facts.”
See further Godwin Igabele II V. The State (2007), 2 NCC 125, Odi V. Iyala (2004) 8 NWLR (Pt. 875) 283, Elewuju V. Onisaodu (2000) 3 NWLR (Pt. 647) 95.

Now, at the trial before the lower Court there were copious evidence led by the Appellant through the several witnesses against the Appellant and the only question is whether these pieces of evidence supplied the essential elements of the offences with which the Respondent was charged? I think it did in respect of all the Counts save Count IV.

Again, were these pieces of evidence so materially contradictory and or discredited so much so that they have become manifestly unreliable that no reasonable Court or Tribunal could safely rely on them to convict the Respondent? I think not save in relation to Count IV.

In my finding therefore, this copious evidence at the stage the no case submission was made at the close of the Appellant’s case showed a clear prima facie against the Respondent on all but Count IV and which evidence, in my view and I so find, met all the entire elements of the offences with which the Respondent was charged, save Count IV, at least on a prima facie basis at the stage of the close of the Appellant’s case.

In Ikuforiji vs FRN (2018) 6 NWLR Pt. 614 P.142 at 165, the Supreme Court per Peter – Odili JSC., while affirming the judgment of this Court per Sir Biobele Abraham Georgewill JCA had reiterated inter alia thus:
“It needs be said that at this stage, which is after the prosecution has closed its case and the accused makes the no-case submission, the Court of trial is not required to evaluate or give weight to the evidence led by the prosecution… The addition is that there is no linkage between the offences charged and the Accused person… The much I can venture is that there is evidence linking the Accused/Appellant to the offences charged for which a response from him is necessary to clear the air. What I am saying is that from the evidence proffered by the prosecution, the matter cannot just be waived off without a hearing from the Accused/Appellant.”
Having so held that the pieces of evidence sufficiently showed the entire constituent elements of the offences laid against the Respondent on all the Counts, save Count IV, were they so badly discredited in cross-examination and had thus become manifestly unreliable that no reasonable Tribunal can safely convict on it? I think not!

Indeed, in law even if a prima facie has been made out against a Defendant, he may yet at the end of the trial still be discharged and acquitted if the Prosecution failed to prove its case against him beyond reasonable doubt as required by law, notwithstanding the fact that at the close of its case it made out a prima facie case against him. In other words, prima facie case is not synonymous with proof beyond reasonable doubt. See Ajiboye V. State (1995) 8 NWLR (Pt. 414) 408. See also Ubanatu V. COP (2001) 22 ACLR 312 at p. 335, Ajidagba V. IGP (1958) 3 FSC 5 at P. 6.

It can be observed that the leading judgment is as expected of a decision, particularly overruling a no case submission, is brief. That is how it ought to be in law. This is so because a decision overruling a no case submission must be concise and precise. It need not be lengthy at all in order not to prejudge issues in the substantive trial that would require more mature considerations and deeper reflections in the final judgment. See Atoyebi V. FRN (2018) 5 NWLR (Pt. 1612) 350 at p. 361, where the Supreme Court per Sanusi JSC., while affirming the judgment this Court per Sir Biobele Abraham Georgewill JCA., had reiterated so succinctly inter alia thus:
“Again, in writing a ruling in no case submission, it is advisable that a trial Court should try as much as possible to be brief and should refrain from making any remarks or observations on the facts.”

It is for the above comments of mine and for the more detailed reasoning in the leading judgment that I too hold that the appeal succeeds substantially in part save as to Count IV. I too hereby allow the appeal in part. I affirm the discharge of the Respondent on Count IV by the lower Court. The case of the Appellant in respect of all the other counts, save Count IV, is remitted to the lower Court for the Respondent to enter upon his defense thereto and to be determined expeditiously according to law.