Alhaji Kazeem Owonikoko V. The State (1989)

LawGlobal-Hub Lead Judgment Report

AKANBI, J.C.A. 

Applicant in this case is standing trial in the High Court for (a) wilful and unlawful damage of property contrary to section 451 of the Criminal Code and (b) forceful entry contrary to section 81 of the same Code. The prosecution led evidence in support of the two counts. At the close of the prosecution’s case learned counsel appearing for the applicant (defendant) made a no case submission. He urged that there were discrepancies in the evidence of the prosecution particularly with regard to the location of the damaged property but more importantly he contended that the applicant had through the prosecution witnesses established a bona fide claim of right to the damaged property and was therefore entitled to take advantage of the provision of Section 23 of the Criminal Code which reads thus:-“A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.”

In this respect he relied heavily on the cases of Chief Samuel Oteri and 4 Ors against Thomas Afonughe and 1 Or. FCA/B/2/78 delivered on the 28th February, 1979 (unreported) and the State v. Dominic Annah and others (1976) 6 E.C.S.L.R. 21. Accordingly, he submitted that having regard to the facts established, the no-case submission, should be upheld.

The learned trial Judge in a considered ruling however ruled that the prosecution has made a prima facie case against the applicant. He called on him to enter upon his defence.

Dissatisfied with the ruling against the no-case submission, learned counsel for the applicant, Mr. R. A. Ogunwole sought leave of this Court to Appeal. An earlier application to the High Court for leave to appeal had been refused by that court. The grounds of the application to this Court are that (a) the grounds of appeal sought to be canvassed involved questions of mixed law and fact and (b) that leave had earlier been refused by the High Court and that it is necessary to obtain same from this court. The argument of Mr. R. A. Ogunwole in this Court as in the High Court largely turned on section 23 of the Criminal Code. He opined that in destroying the property it was clear that the applicant did so honestly believing that he had a bona fide claim of right to the property and that the case of Chief Oteri and 4 others v. Thomas Afonughe (supra) a decision of the Benin Division of this Court eminently justified his contention that the applicant has no case to answer and that the trial Judge was clearly wrong in holding to the contrary. He said that what is required of an applicant seeking leave to appeal is for him to show that the grounds of appeal are arguable. He does not have to establish that his appeal will succeed. In support of the proposition, he cited the cases of (1) Ojora v. Odunsi (1964) N.M.L.R. p.12 at 16, Obikoya v. Wema Bank Ltd. (1989) 1 N.W.L.R. (Pt.96) 157 at 160, Holman Bros. (Nig.) Ltd. v. Kigo (Nig.) Ltd. (1980) 8/11 S.C. 43 at 62.

Mr. Boade for the respondent submitted that leave ought not be granted in this case. It was his contention that if the applicant was so sure that his no case submission ought to have been upheld then it was open to him to rest his case on the evidence tendered by the prosecution. The applicant, he said, was at liberty not to give evidence or call evidence if he was wrongly over-ruled; and that in any case, he could still take the point in a substantive appeal. He relied on the case of R v. Ajani and Ors. 3 W.A.C.A. 3.

I start a consideration of this application by saying that the grant of leave to appeal is not automatic. It is within the discretion of this Court to grant or refuse leave. See Ojora v. Odunsi (1964) 1 All N.L.R. 55 at 61. The discretion must however be judiciously and judicially exercised and on the basis of the materials before the court. See University of Lagos & Ors. v. Olaniyan & Ors. (1985) 1 S.C. 295, (1985) 1 N.W.L.R. (Pt. 1) 156; Demuren v. Asuni (1967) 1 All N.L.R. 94.

As a matter of general principle however leave to appeal will be granted where the grounds of appeal raise issues of general importance or a novel point of law or where the grounds show a prima facie or arguable appeal. See Buckle v. Holmer (1926) All E.R. (Reprint) 90 at 91; Kigo (Nig.) Ltd. v. Holman Bros. (Nig.) Ltd. (1981) 1 S. C. 62 at 63. However, where the grounds of appeal are frivolous, vexatious, or useless or hypothetical, no leave to appeal will be granted. Dike v. Nzeka (1986) 4 N.W.L.R. (Pt.34) 144 & Eperokun v. University of Lagos (1986) 4 N.W.L.R. (Pt.34) 162. I may also add that the case of Ojora v. Odunsi (supra) is authority for the proposition that it is within the discretion of a Court to grant leave on one or some points of importance and refuse leave generally on facts.

In my consideration of this application I shall allow myself to be guided by the principles laid down in the above cases. But I must at this early stage observe that the circumstances under which a no case submission may be upheld have been set out in a number of cases to which references were made by the trial Judge. As a matter of general or basic principle a no case submission will be upheld only:-

(a) When there is no evidence to prove an essential ingredient of the alleged offence.

(b) When the evidence of 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 R. v. Coker (1953) 20 N.L.R. 62, in Re Gafari Ajidagba v. I.G. of Police (1958) 3 F.S.C. 5 [1958] SCNLR 60; R v. Ojuwa Ogucha (1959) 4 F.S.C. 64; [1959] SCNLR 154; Lazarus Atano v. A.G. Bendel State (1988) 2 N.W.L.R. (Pt.75) 201; Ibeziako v. C.O.P. (1963) N.N.L.R. 88 at 94; [1963] 1 SCNLR 99.

The proposed appeal in this case aims at questioning the ruling against the no case submission made by the trial Judge that is to say whether that ruling was properly made or not. It is clearly not concerned with whether or not the applicant on the evidence led, is guilty of the offences charged. That stage had not been reached in the trial court. The trial is yet to be concluded. The crucial issue to be determined, if leave is granted, is whether on an assessment and/or evaluation of the evidence so far given against the applicant, ought the trial Judge over-rule the no case submission made on his behalf and call upon him to enter upon his defence? Or put differently, having regard to the evidence on record, was a prima facie case made against the applicant at all?

Clearly, if on the evidence on record, it is apparent that through effective cross-examination the case of the prosecution has been manifestly discredited or shattered as to make it unreasonable for the adjudicating tribunal to call on the accused to enter upon his defence, a no case submission will be upheld; and equally so, if on the totality of the evidence so far led, it is apparent that an essential ingredient of the offence charged has not been proved. In those circumstances, the accused would be entitled to an order of acquittal and discharge.

It appears to me therefore, that the duty of an applicant seeking leave to appeal against a ruling of no case submission is to satisfy the court that having regard to the evidence on record and the charge laid at the trial of the case, it is apparent if not evident from the record that the prosecution did not lead evidence to prove or establish at least an essential ingredient of the offence charged or that the evidence on record taken as a whole ex-facie is so contradictory or conflicting that it is not worth the while of the tribunal to call upon the accused to testify, deny or admit anything said against him by the prosecution. I envisage those are the premises on which a ruling on a no case submission may be challenged or attacked.

The applicant in the case on hand, has not in the proposed grounds of appeal alleged that any ingredient of the offence charged was not proved or established. Nor did he tender or make reference to any part of the proceedings in order to show at least that there are indications that the case put forward by the prosecution had been discredited and demolished by cross-examination as to make it unreliable. True enough, some references were made to some areas of conflict in the ground of appeal but in the absence of the deposition of any of the witnesses being placed before us or a part thereof, it is not easy at this stage to properly highlight the area of conflicts and its effect on the totality of the evidence as to be able to come to a definite conclusion that there is an arguable appeal before us.

In any case, from the oral submissions made to us, it is clear that the applicant’s counsel prefers to hang his case on Section 23 of the Criminal Code, and on the decision in the case of Chief Oteri & 4 Ors. v. Thomas Afonughe & Anor (supra). For now, all can say is that Chief Oteri’s case was decided on its own facts; and must be seen to be so. From the general tenor of the judgment, it would appear that the findings of fact made by the Chief Magistrate in that case, were not challenged in the High Court and that perhaps was why Agbaje. J.C.A. (as he then was) who wrote the lead judgment observed thus:-

“It was not suggested in the High Court that the learned Chief Magistrate misdirected himself on the evidence before him.”

The position here cannot be said to be the same. Indeed, the point was made in Chief Oteri’s case that the defence of claim of right “involves the assertion of some explanations for the conduct of the defendant in respect of the subject matter of the charge before the Court.” This, it was acknowledged, the defendant can do, either by cross-examination of prosecution witnesses or by evidence of witnesses called on his behalf or by a combination of both.

In the instant case, there is not before us the evidence of the witnesses who testified and it is not in the circumstances possible to appreciate and assess the testimony of any of the witnesses or gauge the efficacy of the cross-examination of any of them. In short, not enough materials have been placed before us for any meaningful conclusion to be reached as to whether or not there is any rational basis for saying that the applicant has a good and arguable case. It must be admitted that on an application for leave to appeal, there is no duty on the applicant to establish that his appeal will undoubtedly succeed. All he has to do is to satisfy the court that the grounds are prima facie good and arguable and not frivolous. But the court will not allow itself to be misled by the way the grounds are couched or framed. It has to critically examine the grounds and consider them against the background of the judgment/ruling complained of. See Ibodo v. Enarofia (1980) 5-7 S.C. 42; Ojemen & Ors. v. Momodu II & Ors. (1983) 3 S.C.188; [1983] 1 SCNLR 188.

Undoubtedly, the four grounds proposed to be canvassed have been adroitly formulated but they all went beyond the narrow issue of whether or not the trial Judge applied the correct principles in over-ruling a no case submission which at this stage is all that should be the relevant consideration. It follows from all I have been saying therefore that I am not satisfied that on the materials now before me, leave ought be granted to the applicant.

There is no doubt applicant’s counsel, armed with the case of Chief Oteri felt he was on a very good wicket and so confidently brought this application for leave to appeal. He was clearly acting well within his constitutional right. No one can question him about that. However, what was not really appreciated was that it was the appellate Judge in the Oteri’s case who granted leave to appeal. He had the entire proceedings before him and as such he was in full possession of the facts necessary for the exercise of his discretion one way or the other. And that makes all the world of difference between this case and that case.

But be that as it may, the fact remains that this application has at the end of the day had the unsalutory effect of protracting the trial of the case.

There is no doubt applicant’s counsel has a number of choices in this matter, but where, as in this case, he largely pegged his case on the defence afforded by Section 23 of the Criminal Code, much time and energy in my humble view would probably have been saved for the final moment when as is likely to be the case a substantive appeal is brought up. And I hasten to repeat that the decision in any case is counsel’s not mine. I am only impelled to make this comment because of the observations of Aniagolu, J.S.C., in the case of Bakare v. A. C.B. Ltd. (1986) 3 N.W.L.R. (Pt.26) p.47 at 58/9 which I find to be quite interesting and relevant in the circumstances.

“Although, I have already stated at the beginning of this judgment that the issue involved in this appeal is profound and therefore the bringing of the appeal is justified, yet it is desirable that I take this opportunity to call attention to the habit of some litigants, in Lagos especially of rushing to the Court of Appeal and thence to this court to test and challenge the ruling of the High Court on the smallest issues which arise in the course of the trial cases. Many a time this entails the suspension of the trial by the Judge and an adjournment of the case sine die. Sometimes, many years go by before the conclusion of the appeal proceedings – a fact contributing to the much discussed delay of cases in our courts.

One, of course, would not say that in appropriate cases such appeals should not be undertaken, but this must be limited to serious matters (such as the instant appeal involving a claim of over four million naira) in which the issue in contention has a serious bearing on the course of the trial or on the outcome of the proceedings. It should not be embarked upon on trifling legal issues which can be taken up generally with the substantive appeal at the conclusion of hearing. The nearness of the Supreme Court to the High Court in Lagos cannot be one of the reasons why litigants find it convenient to go to the Supreme Court on such trifling issues.

It is to be hoped that parties would not contribute to the delay in the hearing of cases in our courts by unnecessary application for adjournment of cases for them to test on appeal trivial issues which could easily wait for the conclusion of trial and taken up with the main appeal to the Supreme Court. Not to heed this is to add to the congestion of cases in our courts and to bring about the “chaotic state of affairs” mentioned by Edmund Davies, L. J., in Seldon v. Davidson (supra). The High Court and the Court of Appeal should lean against granting adjournments, or granting leave for interlocutory appeals, in such trivial matters.

The times, energy and expense involved in such appeals cannot be justified merely by the lawyer’s academic satisfaction that a legal principle, no matter how trivial, has been established or that a trifling legal issues has been resolved.

Lawyers may enjoy the splitting of hairs on obtuse legal points but that extravagant exercise has the result of weighing heavily on the pockets of litigants and unnecessarily exhausting the energies of the Appeal Courts.”

That said, the conclusion I reach is that I am unable for the reasons earlier stated to grant this application. It is accordingly refused and dismissed by me.

Other Citations: (1989) LCN/0075(CA)