Iliyasu Suberu V. The State (2009)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A.
This is an interlocutory appeal against the Ruling of the Honourable Justice H. A. Olusiyi of the High Court of Kogi State holden at Okene. In the Ruling which was delivered on the 28th day of May 2007, the learned trial Judge overruled the no-case submission of the Appellant and ordered him to put in his defence which decision Appellant was dissatisfied with and appealed to this court through a Notice and Grounds of Appeal the same day.
The charges against the appellant as accused with three others are on pages 1 – 2 of the record of appeal and reproduced hereunder:-
1ST HEAD OF CHARGE:
That you Momojimoh Audu, Nasiru Yahaya, Zuberu Iliyasu and Monday Alabi, on or about the 30th day of April, 2003 at Egbomina quarters Obehira in Okene Local Government Area of Kogi State within the Kogi State Judicial Division committed the offence of criminal conspiracy by doing to wit: Agreeing together to rob Abdullahi Ibrahim of the sum of forty thousand naira which is a criminal offence and you thereby committed an offence punishable under Section 97(1) of the Penal Code.
2ND HEAD OF CHARGE:
That you Momoh Jimoh Audu, Nasiru Yahaya, Zuberu Iliyasu and Monday Alabi on or about the 30th day of April, 2003 at Egbomina quarters Obehira in Okene
Local Government Area of Kogi State within the Kogi State Judicial Division committed the offence of armed robbery by doing an act to wit: you broke into the house of Abdullah Ibrahim while armed with a locally made short barrel gun and robbed him of his forty thousand naira at gun point thus committing an offence punishable under Section 298(c) of the Penal Code.
FACTS:
The facts not in dispute are that by the evidence of the prosecution, PW1 came from Port Harcourt to visit his family in Okene on the 30/4/03 and at about 11pm he heard a noise on the deck of his house and when he opened the door to find out the source of the noise, he was confronted by the 2nd accused who had a gun in his possession. That the 2nd accused ordered PW1 to produce the money he had on him, to which order PW1 gave the 2nd accused the sum of N25, 000.00 which he said was not enough and a further sum of N15, 000.00 was given to the 2nd accused who in trying to get away fell into a well in the premises from which he was brought out and the 2nd accused told the PW1 that it was 1st accused who led him to the house of PW1 to rob him.
The area of dispute came from the fact that while Appellant stresses that he as 3rd accused was not mentioned by the prosecution witnesses which position Respondent disagreed with contending that Appellant was never throughout mentioned by PW1′ he was mentioned by PW2 and other witnesses including Exhibit 1, the confessional statement of the 4th accused.
The Grounds of appeal without the particulars are as follows:-
“GROUNDS OF APPEAL:
- The learned trial Judge erred in law when he ruled that the prosecution had established a prima facie case against the appellant based on inadmissible evidence.
- The learned trial Judge erred in law in overruling the appellant’s no case submission based on Exhibit “1” which was inadmissible in evidence.
- The learned trial Judge erred in law in ruling that the appellant had a case to answer and thereby breached the appellant’s right to Fair hearing.
On the 11/3/09 when this appeal was heard the learned counsel for the Appellant adopted appellant’s Brief filed on 31/8/07. In it was formulated a single issue viz:
Whether from the legally admissible evidence before the trial court, the prosecution had established a prima facie case against the appellant?
For the Respondent was filed on 2/4/08 and deemed filed on 23/6/08 the respondent’s Brief in which Respondent agreed with the sole issue of the Appellant.
SINGLE ISSUE:
Whether from the legally admissible evidence before the trial court, the prosecution had established a prima facie case against the appellant.
Learned counsel for the Appellant stated that the law is settled that a no-case submission may be properly made and upheld where:
i. At the end of the case for the prosecution there has been no evidence to prove an essential element in the offence alleged against the accused. Or;
ii. At the end of the case for the prosecution, the evidence adduced had been so discredited as a result of cross-examination that no reasonable tribunal could safely convict on it.
He referred to the cases of Ibeziako v. Cop (1963) NWLR 88 at 94; Onagoruwa v The State (1993) 7 NWLR (pt. 303) 49 at 82 – 83 G-C.
He submitted that the essential elements of an offence cannot be said to have been established against an accused where throughout the trial there has been no legally admissible evidence at all linking the said accused in any way with the offence with which he is being charged. He cited Onagoruwa v The State (supra) 82 – 83 C – D.
Mr. Aliyu, learned counsel for the Appellant stated that from the totality of the evidence by the PW1, PW2 and PW3 there was no scintilla of evidence linking the appellant with the offences alleged against him. That the learned trial Judge however and held that the appellant had a case to answer, He said Exhibit 1 is a statement made by a co-accused (the 4th accused) who was charged jointly with the Appellant. That the law is settled that the confessional statement of a co-accused is no evidence against an accused who has not adopted the statement. He
cited Section 27 (3) of the Evidence Act Cap E 14 LFN 2004; Evbuomwan v. Cop (1961) WNLR 257; Ozaki v. The State (1990) All NLR 110; Cop v. Dogbe (1938) WACA 189; Rule 7 of the Criminal Procedure (Statements to Police Officers) Rules, Cop 30 Laws Northern Nigeria, 1963 as applicable to Kogi State. That the prosecution did not follow those Rules as a copy of Exhibit 1 was not shown to the appellant which was a fatal omission in view of Rule 9 of the Criminal Procedure (Statement to Police Officers) rules. That it follows that Exhibit “1” was inadmissible in evidence and the learned trial Judge was wrong to have used it as a hanger upon which he overruled the no case submission made on behalf of the appellant. He cited Ozaki & anor. V. The State (1990) All NLR 94 at 116 – 117.
Mr. Olorunbogun for the Respondent submitted that the essential ingredients of the offences for which the appellant was charged had been adequately established against him during his trial as he had been adequately linked with the offences for which he was charged by legally admissible evidence. He referred to the testimony of PW2 and the ruling of the trial court. That at the end of the prosecution’s case the prosecution had led sufficient evidence through PW1, PW2, PW3 and Exhibit 1 to prove the essential elements of the offences of criminal conspiracy and armed robbery punishable under Sections 97(1) and 298(c) of the Penal Code for which the 3rd accused (Appellant) was being tried.
Learned counsel for the Respondent contended that the Appellant had been sufficiently linked with the commission of the offences and these pieces of evidence were not challenged under cross-examination and so the evidence is credible, admissible and could be acted upon by the learned trial Judge and these pieces of evidence led by the prosecution at the close of its case require some explanation from the appellant. He cited Section 191 (3) of the Criminal Procedure Code, Ibeziako v. Commissioner of Police (1963) NNLR 88 at 94; Emeolo v The state (2002) 7 SCNJ 221 at 222.
Mr. Olorunbogun went on to say that what the trial court is required to do which has been done in this case In the consideration of a no case submission was not to consider whether the evidence so led by the prosecution is sufficient to justify a conviction, but rather whether at that stage of the proceedings there is a prima facie evidence requiring at least some explanation from the appellant before that court as 3rd accused. That the no case submission was bound to fail as there was a scintilla of evidence to connect the 3rd accused (Appellant) with the commission of the crime. He referred to Queen v. Ogucha (1959) 4 FSC 64; Abogede v The State (1996) 1 NWLR (pt. 3) 104 at 106.
Learned counsel for the Respondents further contended that the second condition on which a no case submission could be validly raised and sustained in a criminal trial is when at the end of the prosecution’s case the evidence adduced by the prosecution is so discredited under cross-examination to the extent that no reasonable tribunal can safely act or rely on it to convict the accused person. That this condition has not been shown to exist at the trial of the Appellant since Exhibit 1 which formed the fulcrum of this appeal was tendered and admitted in evidence without any objection from the appellant. Also that the appellant did not cross-examine PW3 who tendered the exhibit as to the credibility or veracity of the portion of the exhibit which implicated or incriminated the appellant. That Appellant is therefore stopped from complaining about the inadmissibility or otherwise of the Exhibit. He referred to Amadi v. Nwosu (1992) 6 SCNJ 19. That the proper time the Appellant ought to have raised objection to the admissibility of Exhibit 1 was when the prosecution sought to tender it through PW3. He cited Lawson-Jack v. Shell Petroleum (2002) 7 SCNJ 14 at 124; that the admissibility of Exhibit 1 was based on its relevance to the case at the trial. He referred to Elegushi v. Oseri (2005) 7 SCNJ 416 at 421. That the Appellant had by conduct adopted that Exhibit. He cited Section 27 (3) of the Evidence Act 1990; The State v. Onyeukwu (2004) 7 SCNJ 1 at 5; Ogbu v. Ani (1994) 7 – 8 SCNJ (pt. 11) 363 at 365.
The ruling of the trial High Court, the basis of this appeal is reproduced hereunder:-
“RULING:
The 3rd accused was charged together with others for Criminal conspiracy and armed robbery punishable under Sections 97(1) and 298(c) of the Penal Code respectively.
The 3rd accused pleaded not guilty to each head of charge. Three witnesses testified for the prosecution. After the close of the prosecutions case, learned counsel for the 3rd accused made a no-case submission to the effect that there was no evidence whatsoever linking the 3rd accused person to the alleged offence and that exhibit “1” could not be used against the 3rd accused.
After carefully considering the evidence adduced by the prosecution, particularly exhibit “1” wherein the name of the 3rd accused was mentioned, I am satisfied that a prima facie case has been made out against the 3rd accused person. No-case submission is hereby overruled.
(Sgd.)
H. A. Olusiyi
Judge
28/5/2008″.
A submission that there is no case to answer may be appropriately made and up held:-
(a) When there has been no evidence 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 safely convict on it.
Apart from these two situations, a tribunal or court should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer. Onagoruwa v. State (1993) 7 NWLR (pt.303) 49 at 82 – 83; Ibeziako v. Cop (1963) 1 SCNLR 99; Attorney-General Bendel State (1988) 2 NWLR (pt. 75) 201.
A trial judge is competent to rule that an accused has no case to answer if one of the two conditions stated in Onagoruwa v. State (supra) at 82 is satisfied. This is because the conditions are disjunctive and not conjunctive, indicating an alternative situation. See Onagoruwa v. State (1993) 7 NWLR (pt. 303) 49 at 83 per Tobi JCA (as he then was).
It is true as posited by Appellant’s counsel that if there is no sufficient evidence linking the accused with the statutory elements and ingredients of the offence with which he is charged, a court of trial must, as a matter of law, discharge him and it has no business searching and scouting for evidence that is no where and therefore cannot be found.That will not be consistent with our adversary system of administration of justice. It is inquisitorial in design and execution. See Onagoruwa v. State (1993) 7 NWLR (pt. 303) 49 at 82.
I would restate the relevant provision of the Evidence act necessary for our purpose here.
Section 27(1) Evidence Act-
A. Confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.
(2) Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.
(3) Where more persons than one are charged jointly with a similar offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court, or a jury where the trial is one with a jury, shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.
A court must advise itself that the wording of sections 286 and 287 of the Criminal Procedure Law has to be carefully watched and applied. Each of the Sections contains the phase “sufficiently to require him to make a defence”. The case that must be made out against an accused person and indeed the appellant in this case must be such as would be sufficient to require him to make a defence. It is not every type of case that is made out against an accused that will be sufficient to require him to make a defence. Thus, for instance, in a charge that contains some four or five ingredients, it has not made out a case sufficiently to require an accused person to make a defence. In such a situation, the prosecution may have succeeded in kicking up dust or suspicion against an accused person. But suspicion no matter how strong is not sufficient proof of a crime against an accused person. Okafor v. Police (1965) NMLR 89; Abikev. State (1975) 9 – 11 SC.
Section 286 of the Criminal Procedure Law anticipates and really provides for a situation where the prosecution has not established a prima facie case against the accused person. In other words, the section deals with a situation where the evidence led by the prosecution is not sufficient to call upon the accused to defend himself. Section 287 (1) provides for the opposite of this. Onagoruwa v. State (1993) 7 NWLR (pt. 303) 49 at 84 para H. per Tobi JCA (as he then was).
While the burden of proof in criminal cases is proof beyond reasonable doubt, the burden to enable the court invoke the provision of Section 287(1) of the Criminal Procedure Law is not as high as that.The burden at the level of invoking the subsection is that of establishing a prima facie case. Onagoruwa V State (1993) 7 NWLR (pt. 303) 49 at 85.
In order to enable a trial Judge to come to the conclusion that the accused has a case to answer, he must be satisfied that there is in law a nexus between the criminal conduct and the offence he is charged with and this must be apparent on the face of the evidence led by the prosecution. The prosecution must, at that stage, prove an essential element in the alleged offence. Onagoruwa v State (1993) 7 NWLR (pt. 303) 49 at 85.
When two accused persons are jointly charged and tried they are regarded as co-accused. Therefore evidence given by one of them which incriminates the other cannot, in view of section 177(2) of the Evidence Act, be treated as that of an accomplice. Since accused persons as the appellant and his co-accused were jointly charged and tried, the statement of one cannot be treated as that of an accomplice. See Ozaki & anor v The state (1990) All NLR 94.
Section 27 of the Evidence Act provides that a confessional statement of a co-accused is no evidence against an accused person unless the latter has adopted the statement either by words or by conduct. In the case of Ozaki v The State (1990) All NLR 94 it was held that as the 1st appellant did not adopt or confirm the statement of the 2nd appellant in court but instead denied it, it is no evidence against the 1st appellant upon which he can be convicted.
I must say we have not got to the stage as in the Ozaki case (supra) and so that principle cannot apply to avail the appellant being premature.
Where the evidence of a witness has not been challenged, contradicted or shaken under cross-examination and his evidence is not inadmissible in law, and the evidence led is in line with the facts put forward, the evidence must be accepted as the correct version of what the witness said. Per Onu JSC Elegushi v. Oseni (200S) 7 SCNJ 416 at 437.
Relevance is the main purpose for admissibility of any evidence or document under the law of evidence, whether it be in civil or criminal matters/and so that statement of 4th accused and Exhibit 1 being relevant are admissible and usable by court below to reach its decision. Elegushi v. Oseni (200S) 7 SCNJ 416 at 436 per Onu JSC; A. C. B. Ltd. V. Alhaji Umoru Gwagwada (1994) 5 NWLR (pt. 342) 25. The State v. Onyeukwu (2004) 7 SCNJ P.1, in which it was held that the confession of Olatunji is not evidence against the respondent (co-accused) in that case but is a relevant fact against only Olatunji, the maker, by virtue of section 27(3) of the Evidence Act.
However if a confession was made by a person in the presence of one or more persons with whom he is jointly charged and such other persons adopted the statement by words or conduct then it becomes a relevant fact against them.
Having considered all I have before us including the evidence of the prosecution, the documents especially Exhibit “1”, the statement of the co-accused and finally the Ruling or Decision of the trial Judge, and bearing in mind that at this stage the less said, the better in order not to jeopardize the trial which (still with the possibility of being on-going. I see nothing before me upon which I can place a disagreement in the decision of the trial judge which conclusion I am satisfied was properly reached.
Therefore the trial in the court below ought not to be further delayed as I am of the same mind that indeed the prosecution has made a prima facie case for which the Appellant as 3rd accused should be called upon to defend the charge against him.
Finally in the light of the foregoing this appeal has failed since it lacks merit and it is dismissed.
Other Citations: (2009)LCN/3232(CA)
