Caleb Ojo & Anor V. Federal Republic of Nigeria (2005)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER ODILI, J.C.A.
This is an appeal against the decision of the High Court of the Federal Capital Territory, Abuja, contained in the Ruling of Mudashiru Oniyangi J, delivered on 30/10/2002, dismissing the no case submission made by the Appellants/Accused.
Being dissatisfied with the said decision, the Appellants appealed to this Court.
FACTS:
The Accused/Appellants faced a two Count Charge before the Lower Court viz.
COUNT 1:
That you Caleb Ojo (m) and Samuel Ojo (m) on or about the 9th day of July, 2002 at the Abuja Judicial Division, conspired with each other and corruptly gave the sum of N20,000.00 (Twenty Thousand Naira only) to an official of the Independent Corrupt practices and Other Related Offences Commission for the said official to issue in the course of his official duty a countermanding letter exonerating the 1st accused for allegation of corrupt practice leveled against him in his capacity as Chairman of Oriade Local Government of Osun State, in a petition being investigated by the Commission and you thereby committed an offence contrary to Section 26(1) (c) AND PUNISHABLE UNDER section 9(1) of the Corrupt Practices and Other Related Offences Act, 2000.
COUNT 2:
That you Caleb Ojo (m) and Samuel Ojo (m) on or about the 9th day of July, 2002, at Rita Lori Hotel, Garki, Abuja, in the Abuja Judicial Division, did corruptly give as gratification the sum of N20,000.00 (Twenty Thousand Naira) to an official of the Independent Corrupt Practices and Other Related Offences Commission to issue to 1st Accused, a letter exonerating him from allegation of corrupt practices leveled against him while serving as the Chairman Oriade Local government of Osun State in a petition under investigation by the commission and you thereby committed an offence contrary to and punishable under Section 9(1) of the Corrupt Practices and Other Related Offences Commission Act 2000.
The prosecution adduced evidence calling five witnesses at the close of prosecution’s case, the learned Counsel for the Accused/Appellants addressed the Court extensively on a no case submission. The learned Counsel for the Respondent made a reply, while learned Counsel for the Appellants made a reply on points of law. That learned trial Judge after consideration of the submissions of both counsel ruled that prima facie from the evidence of the prosecution there was need for some explanation from the accused. Accordingly, he dismissed the submission of no case, upheld the objection to the no case submission and asked the accused to proceed with their defence to the Charge.
It is against that decision that the Appellants have appealed to this Court.
RELIEF SOUGHT FROM THE COURT OF APPEAL:
To set aside the ruling of the learned trial Judge by considering all the submissions and authorities not considered by the trial Judge and to uphold the no case submission of the appellants and discharge them accordingly.
In compliance with our Rules of court, parties filed and exchanged briefs of argument.
ISSUES FOR DETERMINATION:
The learned Counsel for the Appellants formulated 4 issues for determination which are:-
- Did the evidence adduced by the prosecution as proof of the two count charge leveled against the Appellants/ Accused establish the purpose for which the two offences were alleged to have been committed by the Appellants/ Accused that purpose being an essential element of the two alleged offences which the prosecution was by law, required to establish?
- Had the evidence adduced by the prosecution in support or proof of the said two count charge been discredited or was it manifestly unreliable such that the learned trial Judge should have upheld the appellants’ no case submission in line with the decision of the Supreme court in Ubanatu v. COP (2002) 2 NWLR (pt.643) 115 at 141 B-D?
- In determining the appellants, no case submission, was the learned Trial Judge estopped from expressing an opinion on the evidence adduced by the prosecution as held by the learned trial Judge in his ruling delivered on the no case submission?
- Is there any justification or support in law for the finding of the learned trial Judge that the evidence adduced by the prosecution required some explanations from the Appellants/Accused, whereas the learned trial Judge failed to even examine or identify the particular evidence adduced by the prosecution which required the said explanations?
The learned counsel for the Respondent formulated two main issues for determination namely:-
(1) Whether the learned Trial Judge’s failure to express an opinion on the evidence adduced by the Prosecution witnesses in his ruling on no case submission was prejudicial to the appellants and therefore a denial of their right to fair hearing.
(2) Whether the learned Trial Judge was right in dismissing the submission of no case to answer made by the Appellants having regard to the evidence before the Court.
On Issue No.1 of learned Counsel for the Appellant, F. O. Fagbohungbe Esq submitted that the learned Trial Judge abdicated his judicial duty by failing to consider and pronounce upon the Appellants’ submission that a material ingredient or element of the two offences charged, i.e, the purpose of both offences, had not been established by the prosecution. That is so far as the Appellants’ counsel had made the aforesaid submission and the Respondent’s counsel too had extensively joined issues with the appellants on the said submission, the learned trial Judge had a duty to consider and pronounce upon the issues addressed in the said submissions by either accepting, rejecting or distinguishing same and giving reasons for the learned trial Judge’s conclusion. He cited the decision of the Court of Appeal in Likiti v. COP (2002) 11 NWLR (pt.777) 145 at 157 A -D.
Learned Counsel for appellants further contended that the learned trial Judge having failed to consider and pronounce upon the issues which were properly raised in the Appellants no case submission, the Court of Appeal has the duty and power to examine and pronounce upon all the aforesaid issues by virtue of Order 3 Rule 23(1) of the Court of Appeal Rules (2002) (as amended).
Learned Counsel for the Appellants stated on that essentially, before a no case submission can be upheld, the accused must satisfy the Court on the following factors:-
i. that the prosecution has not adduced any evidence to prove an essential element of the offence alleged; and/or
ii. that the evidence adduced by the prosecution has been discredited, or is so manifestly unreliable that no fair or reasonable tribunal could safely convict on it.
Learned Counsel for the Appellants said that on the above identified ingredients of a no case submission, at the lower court, both the defence and prosecution Counsel referred the learned trial Judge to the decision of the Supreme Court in Ubanatu v. COP (2000) 2 NWLR (pt.643) 115 at 141 B-D.
Learned Counsel said that a no case submission would be upheld, even if it is just one and not both ingredients that is satisfactorily established by the accused as missing.
On Count 2 of the Charge, Learned Counsel for Appellants said that count contains a charge that the appellants corruptly gave gratification to an officer of the Independent Corrupt Practices and Other Related Offences Commission, which offence was created by Section 9(1) of the Corrupt Practices and Other Related Offences Act, 2000. He reproduced the provisions of the relevant section of that law.
Learned Counsel went on to submit that in determining a no case submission, as well as in determining whether or not the evidence adduced by the prosecution established a prima facie case against the Appellants, all and not just some of the material ingredients of the offence in question in this action must be established without exception. Therefore, a no case submission must be upheld should the accused establish to the satisfaction of the Court that the prosecution failed to establish just one material ingredient or essential element of the offence charged. Failure to establish one essential or material ingredient of an alleged offence is tantamount to failure to establish the alleged offence.
Learned Counsel stated on that one of the essential or material ingredients of the offence provided for in Section 9(1) of the Act is that the accused must be shown to have committed the offence stated in Section 9(1) in return for an act, omission, favour or disfavour to be shown or done to the accused by the public officer. That is that the prosecution must establish the Purpose or reason for which the accused person gave or promised to give corrupt gratification to the public officer. Learned Counsel said in the present case, the specific purpose for which the Appellants were alleged to have given gratification to a public officer is that the Appellants wanted a public officer, PW3, Folarin Popoola “to issue a letter EXONERATING the 1st Accused from allegations of corrupt practices leveled against him while serving as Chairman of Oriade Local Government of Osun State” being a petition which was still under investigation by the ICPC.
Learned Counsel for the Appellants said since the purpose for which the Appellants were specifically alleged to have bribed a public officer was in order to produce the issuance of a letter of exoneration, then it was necessary for the prosecution to produce the letter which was the purpose for which the Appellants allegedly committed the offence and accordingly the prosecution tendered the purported letter dated 9/7/02, through PW3 as Exhibit P12 being the letter for which the Appellants gave the alleged gratification to PW3.
Learned Counsel for the Appellants decided to refer to Blacks Law Dictionary 7th Edition page 597, Oxford Dictionary of Correct English and Websters Dictionary of the English language (International Edition) for the definition of exoneration and concluded that the word was defined by the three dictionaries to mean” the removal of a Charge or burden”, “to free or declare free from blame” or “to free from blame”, respectively. He quoted the said purported letter and concluded that the contents did not qualify as exoneration as envisaged or provided in the relevant law. That at best it was a letter of clarification and therefore, it cannot be said that the material envisaged that the offence had been proved or made out.
Learned Counsel said it was even a worthless document since it was unsigned.
He referred to the Supreme Court case of Attorney General Anambra State v. Agharanya (1999) 6 NWLR (pt. 607) 362 at 371 E.
Also cited by the learned Counsel for Appellants in support of their contention that the no case submission should succeed are:-
NWOKEDI & ANOR. V. COP (1977) NSCC (Vol. 11) 127;
ADEOSUN V. STATE (1975) NSCC (Vol. 9) 355;
DIKKO V. STATE (1980) NCR 31;
OLADEJO V. STATE (1994) 6 NWLR (pt.348) 101 at 126.
In response, the learned Counsel for the Respondent, C. I. Onuogu (Mrs.) stated that it is necessary for the Court to examine the position of the law and determine what should be the contents of a proper ruling on a no case submission. She referred to the Supreme Court Case of Ajiboye v. State (1998) 1 ACLR 355 at 357. That from the decision of the Supreme Court, it is premature for a trial Judge to make a remark in his ruling on a no case submission on whether or not he believes, the witnesses and whether or not they are credible witnesses. That the reasoning is predicated on the fact that at the stage of no case submission the trial Judge has only heard the evidence of prosecution witnesses and not the totality of the evidence. Any comment that is made by the Judge at that stage even if it is made in good faith is likely to be misconstrued as tainted with bias and therefore a denial affair hearing. She cited the case of Ubanatu v. COP (supra) at 329.
Learned Counsel further stated that a trial Judge is only permitted to discuss the law in a ruling on a no case submission and not to express any opinion on the facts before him and that was precisely what the learned trial Judge did. She stated on that the ruling of the trial Judge showed proof of the fact that both parties were given fair hearing. On what is fair hearing she referred to the case of Okoduwa v. State (1998) 1 ACLR 319 at 324.
On this Issue No. 1, the decision of the learned trial Judge is being attacked by the appellants counsel on the mode of his consideration and ruling. That is that he ought to have been detailed in the consideration, the reasons for his decision, even though appellants felt that their no case submission ought to have been upheld. This Respondent’s counsel had countered and said that should not be the appropriate approach and the trial Judge’s decision was correct.
I am easily persuaded by Mrs. Onuogu, learned Counsel for Respondent. Indeed, the learned trial Judge showed he knew what was expected of him faced with the submission of no case, which he was going to overrule and did in fact overrule, He ruled:-
“In view of the foregoing and after giving careful consideration of the submission of both counsel vis-a-vis the evidence: The conclusion (sic) that prima facie, the evidence of the prosecution in the circumstance requires some explanation from the accused.
Accordingly, the submission of no case by the accused is consequently dismissed. The objection thereto by the prosecution is sustained”.
The Appellant’s counsel had been dissatisfied with the ruling and had said what he considered the trial Judge should have looked for, considered and shown same including the validity of an unsigned document. That in my opinion is asking more than the learned trial Judge had capacity for and he was wise in not delving into those areas. I am resting on the Supreme Court case of Ubanatu v. COP (2000) 2 NWLR (pt.643) 115 per Kalgo, JSC, at 136 D, where he said: “On the submission of no case to answer” it is wiser for a Judge to be brief in his ruling and make no remarks or observations on the facts. This is because in a ruling of an inordinate length to much might be said which at the end of the case fetter the discretion of the Judge (Bello v. State (1967) NMLR, R v. Coker 20 NLR 62, Ajani v. Queen (1936) 3 WACA 3 referred to).
In Atano v. A.G. Bendel State (1988) 2 NWLR (pt.75) 201, the Supreme Court stated what a court should do when it rejects a no case submission. That Court held:-
“(i) The observation of the court on the evidence at that stage should be confined to the ruling in the sense only that a reasonable tribunal might convict on it and there should be no observations at all on the facts of the case implying that they have been proved or established at that stage.
(ii) The ruling should not contain any feature or element suggesting that the court or tribunal has fettered any discretion it can only judicially exercise after the whole evidence which either side wishes to tender has been placed before it,” Oputa JSC at 231 said “Trial Judges ought to appreciate that unless counsel is resting on his submission of no case, the court has regarded only half the case the prosecution’s case. It is thus wiser to be brief in the ruling and avoid any observations on the facts. Strictly speaking as a submission of no case should be limited to the law there will be no harm discussing the law in the ruling. But one soon discovers that no meaningful discussion of the law can be made in vacuo without any reference to the facts. If law and facts are thus to be discussed then it is much wiser to be extremely short. In fact, one single sentence is enough.
“I overrule the submission and will give my reasons in my judgment”.
Underlining is mine as to the pro forma which Oputa JSC, put forth as the proper thing to do at the no case submission stage.
The learned jurist had at page 230 of the same Atano v. A.G. Bendel State supra said:
“A lengthy ruling, overruling a no case submission will not by its length alone infringe on the fundamental human right of an accused person as enshrined in Section 33(1) of the 1979 Constitution. Such a ruling will however affect the fundamental right of an accused where findings are made and conclusions reached on the evidence called by the prosecution before an accused makes his defence. Consequently, the Court of Appeal was right in refusing to hold that the Appellants were not given a fair hearing”.
The Supreme Court reiterating the same style in a Situation such as a no case submission in Ubanatu v. Cop (2002) 2 NWLR pt. 115 at 126 B – C stated:
“A prima facie case means a ground for proceeding. In other words, that something has been produced to make it worthwhile to continue with the proceedings. However, it is the same as proof which comes later when the court has to find whether the accused is guilty or not guilty discloses a prima facie case when it is such that if uncontradicted and if unbelieved it will be sufficient to prove the case against the accused” per Ogwuegbu JSC.
Having considered the foregoing and what the learned trial Judge did it is clear that the learned Judge of the lower court was in order in not giving details of his reasons for so holding beyond saying a prima facie case has been made out. Therefore I answer issue No. 1 with a positive, Yes.
In respect to Count 1 which has to do with Conspiracy, learned Counsel for the Appellants, said that by the very nature of that offence of conspiracy; it cannot be committed unless at least two people are proved to have conspired with each other to commit an offence. Therefore a prima facie case of conspiracy to be made out the prosecution must establish that the two Appellants in this case acted by agreement or in concert with each other.
He referred to Ikemson v. State (1989) 3 NWLR (pt. 110) 455 at 477 B-C.
Learned Counsel for the Appellants went on to say that it is trite that the onus of proof in this case is on the prosecution. That the prosecution failed woefully to adduce any evidence of law, when and where the Appellants formed the criminal intent or conspiracy as charged. That the prosecution did not adduce any evidence of any specific act(s) of either of the Appellants be it together or separately which could support a charge of conspiracy. That there were circumstances and/or contradictions in the evidence of the prosecution witnesses 1, 3, and 5 and so the court ought not to have rejected the no case submission.
In reply learned Counsel for the Respondent said none of the prosecution witnesses was contradicted during cross-examination. That the evidence of the witnesses complements each other. He referred to the Supreme Court cases of Ayo Gabriel v. The State (1989) 5 NWLR pt. 457 at 468. Ibeh v. State (2001) 2 ACLR 376 at 380, on what would constitute inconsistencies in evidence or contradictions.
Just as I stated earlier in my consideration of Issue N0.1 of the Appellant that the trial Judge ought not to have said more than he did, I have equally cautioned myself of the danger of saying more than absolutely necessary at this point. Once the trial Judge who heard the prosecution witnesses and considered the submissions of counsel on either side, said there was need for the appellants to explain in defence. I see nothing to detract from that situation and I should not give details either.
On Issue N0.2 learned Counsel for the Appellants contended that one of the two conditions under which a no case submission would be upheld is where the evidence adduced by the prosecution in support of the charge has been discredited or was manifestly unreliable such that no reasonable or fair tribunal would convict based on such evidence.
Learned Counsel for the Appellants said the learned trial Judge failed to consider and pronounce on the issue of the discredited or manifestly unreliable evidence. He then went to great length to itemize those areas in the testimonies of the respective prosecution witnesses that ought to have been seen by the trial Judge as unreliable and discredited.
Furthermore, learned Counsel for the Appellants called the courts attention to another category of discredited or manifestly unreliable evidence adduced by the prosecution to which the Appellants drew the learned trial Judge’s attention, but which he failed to pronounce upon that is the evidence of accomplice/tainted witness. He said he was quite mindful of the provision of Section 55 of the Corrupt Practices and Other Related Offences Act, which exempts the application of any written law or rule of law regarding the evidence of accomplices. Learned Counsel said that the exemption provided by Section 55 is subject to a condition precedent which the prosecution did not satisfy at the lower court. That from the totality of evidence adduced by the prosecution witnesses, PW3 (Folarin Popoola) and PW4 (Ibrahim Pam) are clearly accomplices of the Appellants in the execution of the bribery incident. He cited the case of Amadi v. State (1993) 8 NWLR (pt. 314) 644 at 661, a Supreme Court decision.
Also, cited by learned Counsel are the cases of Okeke v. State (1995) 4 NWLR (pt. 392) 672; Onuoha v. State (1995) 3 NWLR (Pt.385) 591; Williams v. State (1975) NSCC (Vol. 9) 398 at 402 – 403.
In response, learned Counsel for the Respondent said Section 55 of the Corrupt Practices and Other Related Offences Act 2000, gives adequate protection to the prosecution witnesses. That none of the prosecution witnesses can be treated as an accomplice or a tainted witness in the light of the special provision in Section 55 of the Corrupt Practices and Other Related Offences Act 2000.
Furthermore, learned Counsel for the Respondent said the actions of the Appellants show that they were acting in concert and that they had a common purpose and they had agreed to commit an offence under the Corrupt Practices and Other Related Offences Act 2000. He cited the case of Njovens v. State (1998) 1 ACLR 224 at 231.
Having seen the fierce battle by counsel on either side to buttress their point of view as to whether or not, the evidence of the prosecution witnesses have been discredited or the evidence so manifestly unreliable that no reasonable Tribunal can safely convict upon it, there emerges a loud voice that shouts out the need for further clarification or explanation from the other side thus supporting the view of learned trial Judge that a prima facie case has been made out and there was need or necessity for the accused/appellants to make a defence. The Supreme Court had held in Williams v. The State (1975) NSCC 398:
“It is trite that a no case submission would be upheld where prosecution witnesses contradicted each other in their testimony, the court would not choose the accuracy of one witness as against the other except where the prosecution has adduced cogent reasons”.
The same court in Ikemson v. State (1989) 3 NWLR (pt. 110) 455 at 475 G – H, 457 C, 479 G – H said, that it is a well settled principle of law that only contradictions in respect of a material fact would make a court doubt the evidence where the alleged contradictions in evidence are not material to the fact in issue, no explanation is required for them. The need for explanation arises only where there are material contradictions and what is material will depend on the facts of a particular case. (Nasumu v. State (1979) 6 SC 153 at 158 – 159 applied.
On the issue of tainted witnesses canvassed by learned Counsel for the appellants, I would refer to the case of Mbenu v. State (1988) 3 NWLR (pt. 84) 615. The Supreme Court per Nnamani JSC said:
“A tainted witness is a witness who though not an accomplice is a witness who may have a purpose of his or her own to serve. The evidence of a tainted witness should be treated with considerable caution and be examined with a tooth comb. Trial court should be wary in convicting on the evidence of tainted witnesses without some corroboration (State v. Okolo (1974) 2 Sc 73 at 82; Shola v. State (1978) 9-10 SC 81 followed). The requirement that a Trial Judge should arm himself before convicting on the evidence of tainted witnesses as one would in the case of accomplices is one directed by prudence not by law.”
In my humble view, this matter of tainted witnesses or accomplices at this stages is premature since in dismissing a no case submission, he could not have said anything on it without prejudicing the entire trial. This is because there is no way he could enter into that area of law at this no case submission stage while dismissing the submission without showing the way his mind is working and thereby unwittingly conclude the trial before he has given the accused whom he intended to hear from the opportunity of defending himself and stating his own side of the story.
The Issue No. 3 has been adequately taken care of in my consideration of Issues 1 and 2, I do not hesitate in saying that indeed the trial Judge in determining the Appellant’s no case submission and overruling, it was estopped by law and practice from expressing an opinion on the evidence adduced by the prosecution.
Also, Issue No. 4 falls within the ambit of what has been earlier stated and that the learned trial Judge was not in a position to say more than he did in his ruling and there is no justification to upset his finding. Again wise counsel stops this court from saying no more than the learned trial Judge did. That is that there is need for some explanation from the accused/appellants there being a prima facie case made out by the prosecution.
In the light of the foregoing and the reasons therein, I see no reason to disagree with the decision of the learned trial judge and therefore, I dismiss this appeal and affirm the ruling of the lower court. There is no order as to costs.
Other Citations: (2005)LCN/1677(CA)
