Emeka Ekwunugo Vs Federal Republic Of Nigeria (2008)

LAWGLOBAL HUB Lead Judgment Report

A. AKINTAN, J.S.C

The appellant was arraigned before Enugu High Court on a one count charge which reads as follows:

“That you Emeka Ekwunugo alias Kingsley Onuorah of No. 1 Inyi Street, Achara Layout, Enugu on or about the month of September 1995 at Enugu within the jurisdiction of the Honourable Court by false pretences and with intent to defraud, induced Ndukwo Ndukwo Ogbujah and Sir C. O. Ikoro to deliver to you the sum of =N=9,724,820 by falsely claiming that you would transfer to their account at Barclays Bank, London the sum of US$108,000 (One Hundred and Eight Thousand United States Dollars) purported to be export proceeds of your genuine business and you thereby committed an offence contrary to section 1(1)(b) of the Advance Fee Fraud and other Fraud Related Offences Decree No. 13 of 1995 and punishable under section 1 (3) of the same Decree.”

The appellant pleaded not guilty to the charge and thereafter the prosecution opened its case. A total of six witnesses were called by the prosecution in support of its case. At the close of the prosecution’s case, a no-case submission was made and the learned trial Judge, Ozoemena, J. reserved his ruling. But instead of delivering a ruling on the no-case submission, the learned Judge delivered a judgment on 29th July, 2002. In it, the learned Judge came to the conclusion that the prosecution failed to prove its case against the appellant. He accordingly discharged and acquitted the appellant.

The prosecution was not satisfied with the conclusion reached by the learned trial Judge. An appeal to the court below was filed against the said judgment. The court below allowed the appeal and made an order that the case be heard de-novo before another Judge of Enugu High Court. The present appeal is from that judgment.

The parties filed their respective brief of argument in this court. The appellant formulated the following issue which was also adopted by the respondent in the respondent’s brief:

“Whether from the evidence led before the trial court there was enough evidence upon which the court below had held as it did that there was a prima facie case against the appellant for which he had to stand trial and if the fact that the trial Judge had written a judgment instead of a ruling in the matter went to any issue and or had any material effect on the matter.”The brief facts of the case are that the main complainant in the case, one Ndukwo Ndukwo Ogbujah (PW 1), a businessman based in Enugu, met the appellant who told him (PW 1) that he was in a position to help him source United States Dollars he needed to pay for his imports of goods needed in the course of his business. They agreed on the rate of exchange to be paid for each dollar procured by the appellant and the amount so procured was to be paid into Mr. Ogbujah’s London bank account at Barclays Bank in London. The details of the London bank account were supplied to the appellant. As agreed by the two men, the appellant made dollar payments into the man’s London bank account and Mr. Ogbujah released the naira equivalent to the appellant. The total amount released to the appellant is the amount named on the charge…

The dispute that eventually led to the appellant’s arraignment arose when a London court made an order freezing Mr. Ogbujah’s London bank account to which the appellant made the payments.

This was on the complaint that the various sums transferred to the account by the appellant were fraudulently obtained by the appellant from one Gerald Skoff. When the appellant was informed of the development, he eventually agreed to refund the money to the complainant, Mr. Ogbujah.

Another man, one Mr. C. O. Ikoro, who was introduced to the appellant, also had similar transaction with the appellant. Various sums of money were also paid by Mr. Okoro in exchange for the United States Dollars deposited into the man’s London bank account.

It is argued in the appellant’s brief that the learned Justices of the court below were wrong in their decision that the trial court’s decision that the prosecution failed to establish a prima facie case against the appellant was wrong. It is also argued that the fact that the learned trial Judge wrote a judgment instead of a ruling was irrelevant since the crucial point was that the prosecution failed to establish that a prima facie case was not made out. The failure to call Mr. Ikoro who was the second man, with whom similar transactions were made with the appellant as a witness, is said to be very vital to the success of the prosecution’s case.

It is submitted in reply in the respondent’s brief that the decision of the court below is correct in that there was sufficient evidence on record to warrant the appellant being called upon to defend himself.

The main question raised in this appeal brings to the fore what a trial Judge should look for in a case where a no case submission is made at the close of the case for the prosecution. The position of the law is that a submission that there is no-case to answer by an accused person means that there is no evidence on which even if the court believes it, it could not convict. In other words, certain essential elements of the offence for which the accused stands charged was not proved by the prosecution. No evidence was led to prove such essential element. The question whether or not the court believes the evidence led does not arise at that stage of the proceedings. The credibility of the witnesses also does not arise at that stage. This is because the trial of the case was at that stage not yet concluded. This is therefore the reason why the court should not concern itself with the credibility of witnesses or the weight to be attached to the evidence, even if they are accomplices:

See Ajiboye v. The State (1995) 8 NWLR (Pt. 414) 408; R. v Coker 20 NLR 62 R. v. Ekanem (1950) 13 WACA 108; Bello v. The State (1967) NMLR 1; Ajidagba v. Police (1958) 3 F.S.E. 5; and Aguda, Criminal Law and Procedure of the Southern States of Nigeria, 3rd edition; (1982) paragraph 427, page 150. A submission of no-case to answer could therefore only be properly made and upheld when- (a) there has been no evidence to prove an essential element in the alleged offence; and/or

(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 safely convict on it:

See Ibeziako v. Commissioner of Police (1963) 1 SCNLR 99; Owonikoko v. The State (1990) 7 NWLR (Pt. t62) 381 and Adeyemi v. The State (1992) 6 NWLR (pt. 195) 1. It follows therefore that what has to be considered at the stage of a no case submission is not whether the evidence against the accused is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring at least some explanation from the accused person: See Ajiboye v. The State, (supra).

In the instant case, the evidence led by the prosecution clearly established that the appellant agreed to pay specified sum of United States dollars into the complainant’s bank account at Barclays Bank in London and collect the agreed naira equivalent at a pre-agreed rate. He informed the complainant that he made the payments and he was paid the agreed naira equivalent. But the money he paid into the London bank account was said to be obtained fraudulently from one Gerald Skoff who got a court order freezing the complainant’s London bank account. In other words, the said payment failed to materialise.

The offence for which the appellant was charged with is section 1 (1) (b) of the Advance Fee Fraud and Other Fraud Related Offence Act. The section provides as follows:

“1 Obtaining property by false pretence, etc

(a) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud…..

(b) Induces any other person, in Nigeria, or in any other country, to deliver to any person,…… is guilty of an offence under this Act.”

The learned trial Judge misdirected himself of what was expected of him at the stage reached in the trial of the case before him, which was then at a no case submission at the close of the prosecution’s case. The position of the law on the point, as I have declared above, clearly shows that what was required of him was not to evaluate or give weight to the evidence led by the prosecution at that stage or to write a lengthy judgment in which he concluded by discharging and acquitting the appellant. This court has in fact in a number of cases said that a ruling on a no case submission should be as brief as possible and not in any way go into evaluation of the evidence led: See e.g. Ajiboye v. The State (supra) at page 416 of the report.

In conclusion therefore and for the reasons I have set out above, the lower court was right in allowing the appeal and setting aside the orders made by the learned trial Judge. There is therefore no merit in the appeal and I accordingly dismiss it. I also make an order affirming the judgment of the court below and order that the case be tried de novo before another Judge of the same jurisdiction.

SC.110/2006