OCHEKPE v. F.R.N & ORS (2020)

OCHEKPE v. F.R.N & ORS

(2020)LCN/15388(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, September 24, 2020

CA/J/472/C/2019

RATIO

NO CASE SUBMISSION: CONSIDERATIONS BY THE COURT TO DETERMINE A PRIMA FACIE CASE

It is trite that after the closure of the prosecution’s case, it behoves the Judge to find out whether there is evidence against the accused to require him to lead evidence in explanation of some facts. It is certainly not whether the evidence available is sufficient to secure a conviction. See Ohwovoriole Vs. FRN (2003)1 SC (Pt. 1) 1 at 10-11. However, if it appears to the Court that a case is not made out against the accused sufficient to require him to make a defence, the judge is duty bound to discharge the accused. There must indeed be some materials warranting the accused to give some explanation or deny. See Okoro Vs. State (1998)14 NWRL (Pt. 584)181.
As earlier noted in this judgment, at the stage when no case submission is made, what the Court is to consider is not whether the evidence adduced by the prosecution against the accused is sufficient to justify conviction, but whether the prosecution had indeed made out a prima facie case requiring at least some explanation from the accused person. A prima facie case means that the prosecution’s case against an accused person has raised some serious questions linking the accused person to the crime and so calling for some explanation from the accused person and which only the accused person from his personal knowledge can give. See Ozoagba Vs. COP (2014)5 NWLR (Pt. 1401) 441 at 461; Ajigba Vs. IGP (1958) SCNLR 60 and Metuh Vs. FRN (supra). PER TANI YUSUF HASSAN, J.C.A.

GROUND OF APPEAL: CONSIDERATIONS TO DETERMINE WHETHER THE GROUND OF APPEAL ALLEGES AN ERROR IN LAW OR FACT

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

SARAH RENG OCHEKPE APPELANT(S)

And

1. FEDERAL REPUBLIC OF NIGERIA 2. EVANG. LEO SUNDAY JITONG 3. RAYMOND DABO RESPONDENT(S)

TANI YUSUF HASSAN, J.C.A. (Delivering The Leading Judgment): This is an appeal against the Ruling of the Federal High Court of Nigeria, Jos Judicial Division, delivered on the 11th day of October, 2019 in Charge No. FHC/141/C/2017, by Hon. Justice M. H Kurya.

The appellant, Sarah Reng Ochepke along with two other accused persons were by an Amended Charge dated 9th of February, 2018 arraigned before the Federal High Court, Jos on a three counts charge of conspiracy, to accept cash payment of the sum of Four Hundred and Fifty Million Naira (N450,000,000.00) from one Annet Olije Gyen, Head of operations Jos branch of Fidelity Bank Plc, and did accept and retain the said amount of N450,000,000.00 which sum exceeded the amount authorized by law to be paid to an individual(s) contrary to Section 18(a); 16(1)(d); Section 1(a) punishable under Section 16(2)(b) of the Money Laundering (Prohibition) Act 2012 (as amended).

The appellant pleaded not guilty to the three counts of charge. At the trial, the prosecution called a total of five witnesses and tendered exhibits, while a no case submission was made on behalf of the appellants. After hearing and consideration of the testimonies of the five witnesses, the learned trial Judge overruled the No case submission and called on the appellant and co-accused persons to enter their defence.

Dissatisfied with the Ruling, the appellant appealed to this Court on three grounds of appeal with their particulars.

From the information in the charge, the facts of the case against the appellant are that they, sometimes in March, 2015 at Jos, Plateau State conspired to accept and did accept and retain cash payment of the sum of N450,000,000.00, proceeds of crime.

The appellant on the 16th of December, 2019 filed her brief of argument and formulated three issues for determination in this appeal thus:
1. “Was the learned Trial Judge right in law when while delivering his Ruling striking out the Appellant’s No Case submission evaluated, expressed his opinion on the evidence before him and the credibility of the witnesses and gave weight to the evidence led by the prosecution. (Grd 1)”
2. Whether the learned Trial Judge did not err in law when he failed/neglected in his Ruling to consider any of the submissions made by the appellant in her written address on No case submission dated and filed on 4th July, 2019 (Grd 2)
3. Whether the Trial Court was right in law when it struck out the appellant’s No case submission for lack of merit when on the contrary, the evidence adduced by the prosecution had been so discredited as a result of cross-examination and so manifestly unreliable that no reasonable tribunal could safely convict on it. (Grd 3)
The appellant’s reply brief was filed on the 24th June, 2020.

The 1st respondent in its brief of argument dated 12th March, 2020 and filed on 13th March, 2020 but deemed properly filed on 22nd June, 2020, identified two issues for determination as follows:
i. “Whether the Ruling of the learned trial judge only examined, in a courtesy manner, the quality of evidence linking the appellant to the commission of the offence with which she was charged with regard to the credibility of such evidence at first sight application of the Appellant. (Grd I)
ii. whether based on the facts and evidence adduced at the trial, the prosecution has made out a prima facie case against the Appellant to justify the findings of the trial court (Grds 2&3).

However, the 1st respondent raised a preliminary objection incorporated in its brief.
Learned counsel for 2nd and 3rd respondents did not file any brief.

At the hearing of the appeal, learned counsel for the appellant adopted his briefs and urged this Court to allow the appeal, while the learned counsel for the 1st respondent adopted the 1st respondent’s brief and urged us to uphold the preliminary objection and dismiss the appeal.

It is incumbent that where a preliminary objection is raised, it must first be determined. The preliminary objection is whether the appellant’s Notice of Appeal dated and filed on 24th October, 2020 is competent in law.

Arguing on the preliminary objection, learned counsel to the 1st respondent referred to Metuh Vs. FRN (2018) LPELR 43706 (SC) and Moses Ede Vs. Ezemba (1999) LPELR 8135 (CA), to submit that interlocutory appeal based upon grounds of mixed law and facts, leave of Court must first be sought and obtained. That the appellant’s grounds of appeal being of mixed law and fact, failure to seek and obtain leave renders the grounds incompetent and liable to be struck out. The Court was referred to Garuba Vs. Omokhodion (2011) 6-7 SC (Pt.v) 89 and Okwuagbala & 3 Ors. Vs. Ikwueme & Ors. (2010) 12 SC (Pt.4)1.

Learned counsel for the appellant, in response to the preliminary objection submitted that the appellant’s grounds of appeal are grounds of law to which leave of Court is not required. He relied on Ononye Vs. Chukwuma (2005)17 NWLR (Pt. 953) 90 at 108-109 para F-A. That where the complaint is that there was no evidence upon which a finding or decision was based, is categorized as a ground of law for which no leave is required. The Court was referred to Fasuyi Vs. PDP & Ors. (2017) LPELR 43462 (SC) and Eneh Vs. NDIC & Ors. (2018) LPELR 44902 SC.

We are urged to hold that the notice of appeal dated 24th October, 2019 is valid and competent, and overrule the objection for lacking in substance.

The appellant’s counsel also drew the attention of the Court that the 1st respondent’s brief of argument is incompetent for violating the provision of Paragraph 8(2)(a) of the Court of Appeal (Fast Track) Practice Direction, 2014 which provides for 15 pages of brief in an interlocutory appeal. That the 1st respondent’s brief exceeded 15 pages as mandatorily provided, which is in breach of the provision. We are urged to strike out the brief.

The 1st respondent’s response in this regard is that, the argument is misconceived and should be discountenanced because the preliminary objection is incorporated therein in the brief.

It is settled that in determining whether the ground of appeal alleged an error in law or fact, it is relevant and crucial to construe the ground together with the particulars of error alleged because its classification as a ground of law can only give competence to an appeal without leave, if the nature of the misdirection or error clearly stated in the particulars, bears out the category assigned – Garuba Vs. Omokhodion (2011) 6-7 SC (Pt.V) 89; Metal Constr. (WA) Ltd. Vs. D.A. Migliore Ors. (1990) 1 NWLR (Pt. 126) 299 SC and Awusa Vs. Nigerian Army (2018) 12 NWLR (Pt. 1634)421.
What is more, where a ground of appeal involves questions of fact or mixed law and fact, leave to appeal must be sought and obtained by the party. In the instant case, the 1st respondent’s objection is that the appellant’s grounds 1, 2 and 3 of the grounds of appeal are grounds of mixed law and fact, and not of law, and the appellant did not seek leave to appeal on those grounds.

The grounds and their particulars are hereby reproduced.
GROUND I
“The learned trial judge erred in law when he expressed his opinion on the evidence before him and the credibility of the 1st defendant’s No case submission against established principles of law.
PARTICULARS OF ERROR
1. under the law, when no case submission is made, the Trial Court is not called upon to express its opinion on the evidence before it and the credibility of the witnesses.
2. At this stage, the trial Court is not required to evaluate or give weight to the evidence led by the prosecution
3. By stating that it had found the prosecution witnesses evidence to be uncontroverted, uncontradicted, unequivocal, direct and positive, the trial court had certainly expressed its opinion on the evidence before it and the credibility of the witnesses.
4. By its finding and holding, the trial court has pre-judged and pre-determined the substantive matter.
5. The finding and holding of the trial Court is not only a breach of well-established principles of law in decided case, but also a breach of the appellant’s right to fair hearing.
GROUND 2
The learned trial judge erred in law when he failed/neglected in his Ruling to consider any of the submissions made by the 1st defendant in her written addresses on No case submission dated and filed on 4th July, 2019.
PARTICULARS
1. The 1st Defendant in her written address on No case submission dated and filed on 4th July, 2019, clearly demonstrated why the trial court ought to uphold the no case submission entered by the 1st defendant.
2. In the entirety of its Ruling, the trial judge did not consider any of the submissions made by the 1st defendant in her written address on No. case submission dated and filed on 4th July, 2019, in the resolution of the issue.
3. The failure of the trial court to consider the submissions made by the 1st defendant in her written on No case submission dated and filed on 4th July, 2019 in its ruling violated the appellant’s right to fair hearing.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

GROUND 3
The learned trial judge erred in law when he held thus:
From all that is before me as at now:
(a) I am of the view that there are evidences before this Court to prove the essential elements in the alleged offences.
(b) I am also of the view that the evidence adduced by the prosecution has not at all been so discredited as a result of cross-examination in any way or so manifestly unreliable that no reasonable tribunal could safely convict on it.
I have found the prosecution witnesses evidence to be uncontroverted, uncontradicted, unequivocal, direct and positive. In conclusion, I have found no substance in the accused persons’ submission of no case to answer and which is hereby struck out for lack of merit. Consequently, the accused persons are hereby called upon to enter their defence.
PARTICULARS
1. Section 1 of the Money Laundering (Prohibition) Act, 2012 (as amended) exempts any transaction either by making or accepting payment exceeding the threshold, where it is a transaction through a financial institution
2. In the instant case, counts 1, 2 and 3 of the Amended Charge and all the prosecution witnesses established that the cash payment was made through Fidelity Bank Plc, a Financial Institution.
3. The prosecution in the instant case failed to prove any predicated offence to ground the charge against the 1st defendant as held in the case of F.R.N Vs. Yahaya (2015) LPELR -24269 (CA)
4. Under the law, the prosecution is mandated to prove the vital and essential element required to substantiate the charge as laid down by the Supreme Court in the case of ATOYEBI Vs. F.R.N (2017) LPELR -43831 (SC) at Pp. 20-21 para G-D.
5. Contrary to the decision of the trial Court, there is no evidence linking the 1st defendant with the commission of the offence with which she is charged with under counts 1, 2 and 3 of the Amended Charge which state that the defendants accepted cash payment from one Mrs. Annet Olije Gyen, Head of operation of Fidelity Bank Plc.
6. The evidence adduced by the prosecution has been so discredited as a result of cross-examination and so manifestly unreliable that no reasonable tribunal could safely convict on it.
7. The trial Court erred in law when it struck out the 1st defendant’s No case submission.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

8. There is no iota of evidence from the prosecution’s witnesses to the effect that the Appellant received a proceed of crime.
9. The prosecution did not lead evidence on the source of the money allegedly received by the appellant to ground the allegation of receipt of proceed of crime.
A careful perusal of the grounds of appeal and their particulars reproduced above revealed that the appellant’s grievances are not on grounds of law alone as contended by the appellant’s counsel, but of mixed law and facts. The grounds 1, 2 and 3 contained in the appellant’s Notice of Appeal reveals whether the ingredients of the counts charged against the appellant have been established by the prosecution. Therefore, the appellant’s contention that no ground questions the evaluation of evidence made by the trial Court cannot be correct. However, ground I of the Notice of Appeal complains that the trial Court erred by expressing its opinion on the evidence before him in over-ruling the no case submission, which is contrary to law, and that she was denied fair hearing. It is a ground of law.
The Supreme Court in Awusa Vs. Nigerian Army (supra) gave a distinction between question of law and question of fact. That matters of fact have to be ascertained, failing admission by competent and relevant evidence given by witnesses, experts or provided by deeds records, reports etc. Matters of law have to be ascertained, failing admission by interpretation of statutes, cases and other authoritative sources of law aided by argument of counsel to parties in the litigation.
I have no hesitation in holding that from facts on record and by virtue of the provisions of Section 242(1) of the 1999 Constitution (as amended) grounds 2 and 3 as contained in the notice of appeal requires the leave of either the trial Court or this Honourable Court before filing. Failure to seek and obtain such leave renders grounds 2 and 3 incompetent and are accordingly struck out with argument on issues two and three raised, therein.

The preliminary objection succeeds in part and it is upheld. The appellant is left with ground I of the Notice of Appeal and issue one distilled therefrom, for the determination of the appeal.

With regard to the submission of the appellant’s counsel that the 1st respondent’s brief of argument is incompetent having exceeded 15 pages as provided by Paragraph 8(2) (a) of the Court of Appeal (Fast Track) Practice Direction, 2014 and should be struck out, it is noted that the argument as contained in the brief terminated at the first paragraph of page 16 while from the second paragraph of pages 16-18 are list of authorities, schedules and addresses of service on the parties which in my view is insignificant to render the brief of the 1st respondent incompetent. Moreso, by Paragraph 8(2)(c) of the Court of Appeal (Fast Track) practice Direction, list of authorities, table of contents and any schedules are excluded in the page count. The submission of the appellant’s counsel in this regard is discountenanced.

Now the appeal.
ISSUE ONE
1. Was the learned trial judge right in law when while delivering his Ruling striking out the appellant’s No case submission, evaluated, expressed his opinion on the evidence before him and the credibility of the witnesses and gave weight to the evidence led by the prosecution.”

In arguing this issue, learned counsel for the appellant submits that the law is, when a no case submission is made, the trial Court is not called upon to express its opinion on the evidence before it and the credibility of the witnesses. That the trial Court is not required to evaluate or give weight to the evidence led by the prosecution. He relied on the case of Egharevba Vs. F.R.N (2016) LPELR-40045 (SC) on the position of the law.

Relying on the case of Agbo Vs. State (2013)11 NWLR (Pt. 1365) 377 at 394 paras F-H, it is submitted that the trial Judge has pre-determined the matter by his finding and holding that the prosecution witnesses’ evidence is uncontroverted, uncontradicted, unequivocal, direct and positive. That by this pronouncement, the learned trial judge had expressed his opinion and exceeded the boundaries set by law.

It is finally submitted on this issue that the trial Court having made such far reaching findings, the appellants’ right to fair hearing is not guaranteed, and we are urged to resolve in favour of the appellant.

For his part, learned counsel for the 1st respondent in response, submits that the trial Court is allowed in law in a no case submission to examine in a courtesy manner the quality of evidence linking the appellant to the commission of the offence with which she was charged particularly with regard to the credibility of such evidence at first sight. He relied on the cases of Tudunwada & Anor Vs. FRN (2018) LPELR -44288 Pp. 25-26 paras C-B and Daboh Vs. State (1977) 5SC 122.

Learned counsel for the 1st respondent argued that the learned trial Judge rightly examined the quality of evidence linking the appellant to the commission of the offence with which she was charged, particularly with regard to the credibility of such evidence of the prosecution which necessitated the accused/appellant to enter her defence. The Court is urged to resolve in favour of the 1st respondent.

The appellant’s reply brief relates to issues 2 and 3 distilled by the appellant from grounds 2 and 3 of the notice of appeal. The grounds 2 and 3 of the appellant’s notice of appeal having been struck out along with the issues distilled therefrom, the reply brief is discountenanced.

At the close of the prosecution’s case, a submission of no-case to answer made by counsel to the accused person postulates one or both of the following:
(a) That there has been, throughout the trial, no legally admissible evidence at all against the accused person on behalf of whom the submission has been made to link him in any way with the commission of the offence with which he was charged which would necessitate his being called upon for his defence; or
(b) That whatever evidence there was which might have linked the accused person with the alleged offence has been so discredited, particularly under cross examination of prosecution witnesses that no reasonable Court can be called upon to act on such evidence as establishing criminal guilt on the accused person – Ajuluchukwu Vs. State (2014)13 NWLR (Pt. 1425) 641 at 643. See also Daboh Vs. State(1977) 5 SC 197 and Tongo Vs. C.O.P (2007) 12 NWLR (Pt. 1949)525.
In other words, a submission of no case to answer by an accused person means that even if Court believes the evidence adduced so far by the prosecution, there is no sufficient material on which the Court can convict. Ordinarily, at the stage when a no case submission is made by an accused person on trial, what the Court is to consider is not whether the evidence adduced by the prosecution against the accused is sufficient to justify conviction but whether the prosecution has indeed made out a prima facie case requiring at least, some explanation from the accused person. See Queen Vs. Ogucha (1959) SCNLR 154; Ikomi Vs. State (1986)3 NWLR (Pt. 28) 340 at 366; Onagoruwa Vs. State (1993)7 NWLR (Pt. 303) 49 at 80; Alex Vs. F.R.N (2018)7 NWLR (Pt. 1618) 228 at 232; Destra Inv. Ltd. Vs. FRN (2017) 2 NWLR (Pt. 1550) 485 at 488-489; Adama Vs. State (2018)3 NWLR (Pt. 1605)94 at 102 and Metuh Vs. FRN (2017)4 NWLR (Pt. 1554) 108 at 111.

As stated earlier, the prosecution called five witnesses tendered exhibits, twenty-two in number. Reflected therein at pages 545-651 of the record is the evidence of the prosecution witnesses.
PW1, Annet Esyel was the Head of Operation. Fidelity Bank Jos, Branch. She testified inter alia as follows:
“On 26th March, 2015, I received an instruction from my group Division Head operation, Mr. Martin Ezeoegbe that payment be made to certain beneficiaries. The names were given as:
Hon. Sarah Ochekpe
Raymond Dabo
Evang. Leo

Sunday Jitong”
They are the 1st, 2nd and 3rd accused persons, before the Court. On receipt of the instruction to pay beneficiaries listed, I proceeded to CBN JOS branch and made a withdrawal of the cash. I withdrew the money and took it to my branch. It was N450 Million. On reaching the branch Sarah presented her ID card from the Federal Ministry of Water Resources, Raymond Dabo presented his voter’s card while Evang. Leo Sunday Jitong presented National Driver’s license for identification. I know them by their names sent to me by Mr. Martins Izeogbe. I presented to the three the withdrawal instrument i.e. where their names were written, their signature and phone numbers and the amount to be collected in block. They confirmed the amount and requested our vehicle Bullion Van, the money was moved into the van and they left our branch.”
PW2, Daniel Okories, a Banker with Fidelity Bank Plc and a PA to the Managing Director. He testified that sometimes in early 2015 they were invited for a meeting of the NNPC Abuja. The meeting was attended by the MD, himself (PW2), former Minister of Petroleum Diezane Alex Madueke, her Son and some others. The Minister introduced to them four principal owners of (1) Midwest Oil and Gas (2) Auctus Nigeria Limited, (3) Northern Belth Oil Gas and (4) one other name, that were going to open an account with Fidelity Bank Plc. After the meeting the four principal owners came and opened the account with Fidelity Bank Plc. He said:
“Some money came into those accounts. Subsequently we received instructions for the Hon. Minister on how the money is to be distributed. It was through an email. The Email contains direct instructions on list of persons and locations where the payment were to be made. I printed the instructions for my MD who approved for the Head of operations to carry out the instructions. The name of the MD is Nnamdi Okonkwo.”
PW3, Aliyu Ibrahim, is a banker with Fidelity Bank Group Head of Operations, North. His testimony is:
“In March, 2015 I was in Lagos with my Divisional Head, one Martins Izuogbe. He called my attention to a mail he received from the MD Fidelity Bank Plc. It contained instructions from the MD to pay certain beneficiaries in the North, certain amount of money. The mail has an attachment, the attachment contains the names of beneficiaries and their GSM No. Myself and Mr. Martins designed a receipt of payment which contains amount in words and figures. Name of the beneficiaries, GSM No, Address and signature. There are other beneficiaries from the state, we now pass the information to all states.”
PW4 Dabi Dashang Gideon is a forensic document examiner who examined disputed documents marked X and X1 and specimen handwriting marked A1-A10, B1-B10 and C1-C10 to which he issued a report at the end of the examination based on his finding.
PW5, Abdulfatah Nuhu is a public servant with EFCC Gombe Zone. He is a principal Detective Superintendent. He identified the three accused persons, Mrs. Sarah Reng Ochekpe, Evangelist Leo Sunday Jitong and Raymond Dabo. He testified:
“Sometimes in the month of April, 2016, the EFCC Gombe Zonal received an interim memo dated 13th April, 2016, concerning intelligence about the sum of 115,10,000 Million US Dollars (One Hundred and Fifteen Million, Ten Thousand) U.S Dollars equivalent of 23 Billion Two hundred and Ninety-Nine Million ten hundred and five thousand Nigeria Naira. The money was laundered by the former Minister of Petroleum Mrs. Diezani Alisson Madueke. The Memo was attached with some documents.”
On 27th April, 2016, we were in Lagos, we held a meeting with the Managing Director, Fidelity Bank together with my colleagues from different zones. The MD of the Bank is Mr. Nnamdi Okonkwo. The team investigators interview the Md. Fidelity Bank. During the interview we obtained some information from him. Some of the informations are:
That a meeting was summoned by the Minister of Petroleum Resource in her office in Abuja. The MD was present at the meeting together with the MD of the following companies.
1. MD of AUTUS INTERGRATED INVESTMENT LIMITED
2. MD. OF NORTHERN BELTH GAS COMPANY LIMITED
3. MD. OF MD WESTERN OIL AND GAS COMPANY LIMITED
4. MR. LENA LAITAN ADESANYA PRIVATE INDIVIDUAL.
The former Minster of Petroleum informed the MD of all the companies above and Mr. Lena Laitan Adesanya to go and open an account with Fidelity Bank. As for those who maintain account with Fidelity Bank, they are to go and reactivate same for the purpose of this transaction. The former minster also gave the sum of twenty-five million, seven hundred and seventy-six thousand US dollars cash to the MD. of Fidelity Bank Mr. Okonkwo. She said the money is to be converted into Nigeria Naira. And it stood at Twenty-Three Billion, Two Hundred and Ninety nine Million, Seven Hundred and Five Thousand Naira. On 25th March, 2015, Mr. Okonkwo, MD Fidelity Bank received an Email message from his email account sent to him by the son of the former minister, one Mr. Ugonna. The message had some attachments. The attachments are in batches. Batch A and B. For this case is batch A, it consists the names of the beneficiaries from the 36 states of the Federation. It contains also their phone Nos, states of origin and the amount. In respect of Plateau State the three accuseds are the beneficiaries. And the sum of N450,000 (four hundred and fifty million Naira) was disbursed to Plateau State.”
Now from the evidence adduced by the 1st respondent at the trial Court, can it be said that the appellant has some explanation to make?
After the review of the submissions of learned counsel for the parties, the trial court found as follows:
“From all that is before me as at now:
(a) I am of the view that there are evidence before this Court to prove the essential elements in the alleged offences.
(b) I am also of the view that the Evidence adduced by the prosecution has not at all been so discredited as a result of cross-examination in any way, or so manifestly unreliable that no reasonable tribunal could safely convict on it. I have found the prosecution witnesses evidence to be uncontroverted, uncontradicted, unequivocal, direct and positive. In conclusion.
I have found no substance in the accused persons’ submission of no case to answer and which is hereby struck out for lack of merit. Consequently, the accused persons are hereby called upon to enter their defence.”
It is trite that after the closure of the prosecution’s case, it behoves the Judge to find out whether there is evidence against the accused to require him to lead evidence in explanation of some facts. It is certainly not whether the evidence available is sufficient to secure a conviction. See Ohwovoriole Vs. FRN (2003)1 SC (Pt. 1) 1 at 10-11. However, if it appears to the Court that a case is not made out against the accused sufficient to require him to make a defence, the judge is duty bound to discharge the accused. There must indeed be some materials warranting the accused to give some explanation or deny. See Okoro Vs. State (1998)14 NWRL (Pt. 584)181.
As earlier noted in this judgment, at the stage when no case submission is made, what the Court is to consider is not whether the evidence adduced by the prosecution against the accused is sufficient to justify conviction, but whether the prosecution had indeed made out a prima facie case requiring at least some explanation from the accused person. A prima facie case means that the prosecution’s case against an accused person has raised some serious questions linking the accused person to the crime and so calling for some explanation from the accused person and which only the accused person from his personal knowledge can give. See Ozoagba Vs. COP (2014)5 NWLR (Pt. 1401) 441 at 461; Ajigba Vs. IGP (1958) SCNLR 60 and Metuh Vs. FRN (supra).
From the evidence already adduced by the prosecution quoted inter alia above, can it be said that appellant has some explanations to make as to the role she played in the transaction? A careful perusal of the charge against the appellant, it was evident from the case made out against the appellant that the witnesses led by the 1st respondent testified on facts in respect of the ingredients of the offences the appellant was arraigned. The evidence led by the 1st respondent’s witnesses was not discredited in cross-examination. It is my view that there is need for the appellant to deny or offer an explanation. The trial Court was therefore right in calling on the appellant to enter her defence.
The justice of the case demands that where a prima facie case is established against the appellant in a no case submission as in the instant case, the appellant is entitled to give an explanation as to what really transpired. The appellant’s contention that the trial Court has pre-determined the matter and she was denied fair hearing is a misconception. It is pertinent to reproduce the relevant portion of the trial Court’s ruling for ease of reference. The trial Court held thus:
“When a submission of no case to answer is made, the decision should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit, but on whether the Evidence is such that a reasonable tribunal might convict on the evidence so far laid before it. Daboh Vs. State (1977)5 SC 197 at 209 – 211 refers. From the above, this Court is not being called at this stage to say whether these accused persons are guilty or not. Rather to only say if the prosecution has made a case that the Court needs to hear an explanation before it can pronounce either guilty or not guilty verdict.”
It is my view that from the above the trial Court cannot be said to have pre-determined the matter in breach of the appellant’s right to fair hearing as contended by the appellant’s counsel. There is no doubt that the trial Court found that from the evidence available, there is need to call the appellant to deny or offer explanation. Hence the avoidance of temptation to delve into the exercise of evaluation of evidence or the consideration of the credibility of the witnesses.

I am satisfied that the learned trial judge was right in its ruling, on the evidence presented by the prosecution. This interlocutory appeal was brought to delay the proceedings at the trial Court. I find no substance in the appeal and it is accordingly dismissed.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read before now, the lead judgment just delivered by my learned brother TANI YUSUF HASSAN, JCA wherein the appeal is adjudged as lacking in substance and designed to perpetuate delay and should be dismissed.

I agree with the reasoning and conclusion therein and also dismiss the appeal and abide by orders therein contained.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother TANI YUSUF HASSAN, J.C.A. I am in complete agreement with his reasoning and conclusion; accordingly, I also dismiss the appeal.

Appearances:

Oyawole, with him, Joshua John and I. J. Okoro For Appellant(s)

Abubakar Aliyu – for the 1st Respondent
Gyang Zi, with him, Miss Y. L. Ayuba – for the 2nd & 3rd Respondents For Respondent(s)