Olawale Ajiboye & Anor V. The State (1995)
LAWGLOBAL HUB Lead Judgment Report
KUTIGI, J .S.C.
The appellants were in the Lagos High Court charged as follows:-
STATEMENT OF OFFENCE -1ST COUNT
Murder contrary to section 319(1) of the Criminal Code Cap. 31 Laws of Lagos State 1973.
PARTICULARS OF OFFENCE
Olawale Ajiboye (m) on or about the 7th day of June, 1991 at No.5A Maria Street, Anthony Village in the Ikeja Judicial Division murdered one Ebimikifa Toby.
STATEMENT OF OFFENCE – 2ND COUNT
Stealing contrary to Section 390(9) of the Criminal Code cap. 31 Laws of Lagos State 1973.
PARTICULARS OF OFFENCE
Olawale Ajiboye (m) and Temple City Properties Ltd on the 3rd day of June, 1991 at Ikeja in the Ikeja Judicial Division stole the sum of N3.7 million (Three Million, Seven Hundred Thousand Naira) property of McRoyal Holdings Ltd.
STATEMENT OF OFFENCE – 3RD COUNT
Stealing, contrary to section 390(9) of the Criminal Code cap. 31 Laws of Lagos State 1973.
PARTICULARS OF OFFENCE
Olawale Ajiboye (m) and Temple City Properties Ltd. on the 3rd day of June 1991 at Ikeja in Ikeja Judicial Division stole the sum of N2 million (Two million Naira) property of McRoyal Holdings Limited)
The 1st appellant pleaded not guilty to all the three charges while the 2nd appellant pleaded not guilty to the 2nd and 3rd charges.
At the trial the prosecution called a total of eighteen witnesses and closed its case. It was at the close of the case for the prosecution that Professor Kasunmu, learned Senior Counsel for the appellants, made a “no case” submission pursuant to section 286 of the Criminal Procedure Law of Lagos State. In a reserved ruling delivered on 8th December, 1992 the learned trial Judge, Silva J., after due consideration of the submissions of counsel discharged the 1st appellant of the charge of murder in count one above. He, however, found that a prima facie case had been made out against the two appellants in respect of counts 2 & 3 related to stealing, and consequently he ordered them to enter their defence if they so wished.
Aggrieved by the decision of the learned trial Judge the appellants appealed to the Court of Appeal. The court in its judgment of 5th September 1994 unanimously dismissed the appeal and affirmed the ruling and orders of the trial High Court.
Still not satisfied with the judgment of the Court of Appeal the appellants have now appealed to this court.
The parties filed and exchanged briefs of argument which were adopted at the hearing. Professor Kasunmu on page 7 of his brief has submitted the following issues for determination in the appeal-
“(a) Is the testimony of the investigating Police Officer as regards what he saw or discovered during the course of his investigation admissible on that basis alone, without regard to the provisions of our evidence law governing admissibility
(b) Is the principle of Vicarious Liability applicable in the realm of our Criminal Law
(c) Whether the learned Justices of the Court of Appeal could make pronouncement on the guilt of the appellants in a “No Case” submission ruling
(d) Whether it is a requirement of section 383(2)(f) of the Criminal Code that before a prima facie case of stealing a sum of money is established, a demand for return of the money must have been made coupled with a failure to return same”
The above issues appear daunting especially when it is remembered that the single issue submitted for determination in the Court of Appeal was –
“Whether the lower court was right in dismissing the no case submission in respect of the two (2) counts of stealing”.
I therefore hasten to think that the real issue before this Court is-
“Whether the Court of Appeal was right in affirming the decision of the High Court dismissing the no case submission in respect of the two (2) counts of stealing.”
But before I delve into the issues I wish to set out a few guiding principles first. It must be recognised that at the stage of a no case submission, the trial of the case is not yet concluded. At that stage therefore, the court should not concern itself with the credibility of witnesses or the weight to their evidence even if they are accomplices. The court should also at this stage be brief in its ruling as too much might be said which at the end of the case might fetter the court’s discretion. The court should again at this stage make no observation on the facts. (See for example R v. Ekanem (1950) 13 WACA 108, Chief Odofin Bello v. The State (1967) NMLR 1, R. v. Coker & Ors 20 NLR 62).
It is in the light of these stated principles that I intend to examine and if necessary consider the issues raised above. It is clear to me that with the exception of issue (c), all the remaining three issues (a), (b) & (d), border on the credibility of a witness or witnesses and or the assessment of their evidence and or the weight to be attached to such evidence. Let me expatiate. As for issue (a), the relevant prosecution witness (No. 17) had given direct oral evidence about what he saw and did in the course of his investigation of the case. I repeat that it was direct oral evidence. The appellants now contend that Bank Statements of Account ought to have been tendered as well. That contention at this stage I feel would probably go to weight only, an area reserved for the trial court. Issue (b) did not even arise in this case. Nobody has been pronounced vicariously liable with another in this case. Clearly the appellants are being tried jointly which is nothing new. And in joint criminal trials, usually evidence against each accused is considered separately, and separate verdicts pronounced separately as well. As for issue (d) it suffices to say that the appellants herein are charged under section 390(9) of the Criminal Code for stealing while section 383(2)(f) of the Criminal Code which is a “deeming” provision states that –
“383(2) a person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents –
(f) In the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.”
The section creates no offence. The evidence here, if believed, was that the money had been used or spent not in accordance with the purpose for which it was given or intended and that it was yet to be returned to its owner. I cannot say more than that at this stage. We have to await the final verdict of the trial Judge who may decide to use or not to use the provision for or against the appellants. Consequently I must rule that issues (a), (b) and (d) are not proper issues for determination in this appeal now. They are premature. It will be proper therefore for me to decline to answer them. This Court ought not to be stampeded into making decisions or pronouncements on live issues before the lower courts have the opportunity to pronounce on the same issues.
I will now proceed to consider the single general issue framed by me. The appellants’ remaining issue (c) will be answered along with that issue.
Now, in the case of R v. Coker & Ors (supra) Hubbard, J. said,
“The meaning of a submission that there is no case for an accused person to answer is that there is no evidence on which, even if the court believes it, it could convict. The question whether or not the court does believe the evidence does not arise, nor is the credibility for the witness in issue at this stage.”
It is also settled by a chain of authorities that a submission of “no case” to answer may be properly made and upheld in the following circumstances as correctly stated by the lower courts:-
- When there has been no evidence to prove an essential element in the alleged offence;
- 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 All NLR 61 (1963) NNLR 88; (1963) 1 SCNLR 99; Ajidagba & Ors v. I.G.P. (1958) 3 FSC 5; (1958) SCNLR 60; Okoro v. The State (1988) 5 NWLR (Pt. 94) 255; Adeyemi v. The State (1991) 6 NWLR (Pt. 195) 1.
What then is a “prima facie” case In the case of Ajidagba & Ors v. I.G.P. (supra) Abbot F.J. said on page 6 of the report thus –
“We have been at some pains to find the definition of the term “prima facie case”. The term, so far as we can find has not been defined either in the English or in the Nigerian courts. In an Indian case, however, Sher Singh v. Jitendranathsen (1931) L.R. 59 CAL 275 we find the following dicta:-
“What is meant by a prima facie (case) It only means that there is a ground for proceeding…
But a prima facie case is not the same thing as proof which comes later when the court has to find whether the accused is guilty or not guilty “(per Grose J.) and “the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused (Per Lort- Williams, J.)”
There is no doubt that the above stated principles must be strictly adhered to in order to arrive at a just decision.
Dealing with the two-count stealing charges, the learned trial Judge said in his ruling on page 23 of the record thus –
“I have given the prosecution’s evidence on the 2nd and 3rd counts very anxious and careful consideration.
The facts unequivocally establish a prima facie case of stealing the sums of money charged in each of the 2nd and 3rd counts of the charge against both accused persons. The first accused by his own personal acts and by his conduct of the business of the 2nd accused person has obtained money from P.W.1 and P.W.2 for the purchase of two properties which have not up to now been conveyed McRoyal Holdings Limited and the money has not been returned. To my mind, this state of the evidence has established a prima facie case of stealing money belonging to McRoyal Holdings Limited. The two accused persons ought to offer an explanation in their defence if they have any in view of their plea of not guilty.”
The Court of Appeal also on page 258 (per Kalgo J.C.A) observed thus-
“The ruling of the learned trial Judge on the “no case” submission now appealed against, is very commendable. It is short, succinct and to the point, as it is supposed to be (see Bello v. State (1967) 1 All NLR 233 at 227) “and although some evidence was stated in it, the learned trial Judge only discussed law and made no observations implying that any particular facts were proved or established. This is correct approach in this matter (see Atano v. A.G. Bendel State (supra).”
Having read the record of proceedings carefully, I have myself come to the conclusion that the learned trial Judge properly directed himself and came to a correct decision on the “no case” submission before him. The Court of Appeal was also right in affirming the ruling of the learned trial Judge.
I think this is a convenient place to deal with issue (c) of the appellant. While Kalgo J.C.A was commending the learned trial Judge for being brief, succinct and to the point, he was already himself a victim of the same principle. While the learned trial Judge wrote a ruling of 5 pages the Court of Appeal’s lead judgment of Kalgo J.CA. (which was concurred by Sulu-Gambari and Uwaifo, JJ.CA., spanned some 22 pages of foolscap size.
The judgment was, in my view, unnecessarily long and it was in the process that conclusions about the guilt of the appellants who are still being tried were erroneously made. I have no difficulty whatsoever in saying that it was wrong for the learned Justice of the Court of Appeal to have concluded as he did on pages 254 and 256 respectively that the offences of conversion and stealing have been committed.
On page 254 of the record, he said –
“By spending the complainant’s money for payments other than those intended by the complainant, the appellants have acted in a manner inconsistent with his right. This therefore amounts to conversion and it is immaterial as in this case, the thing converted is, at the time of conversion in the possession of the person who converts it.”
Further down on page 256 he also said –
“………….although the original taking was done without any fraudulent intent, and the appellants were authorized to dispose of the money in a certain way which they did not, the appellants converted the money to their own use and to the use of others without the consent of the complainants, and although the conversion was open and not in secret, the offence of stealing is still committed since the necessary intention under section 383(2) (f) is proved ….
By these premature ejaculations about the guilt of the appellants the learned Justices of the Court of Appeal have unconsciously disqualified themselves from further participation in the case and for ever too. Amen. In the case of Bello v. The State (supra) Ademola (C.J.N.) delivering the judgment of the court said on page 3 of the report thus –
“Whilst it is not the aim of this Court to discourage a Judge from discussing matters of interest in his judgment, we would like to warn against ruling of inordinate length in a submission of no case to answer as too much might be said as was done in this case, which at the end of the case might fetter the Judge’s discretion………………………
It is wiser to be brief and make no observations on the facts: See R. v. Ekanem (1950) 13WACA 108 at 109.”
So it is too with this case.
Fortunately in the appeal before us the Court of Appeal was not the court of trial. If it were, the proper order would have been to transfer the case before another panel of justices for trial de novo because the panel herein had apparently made up its mind in advance about the guilt of the appellants. But even then as I said above it would still be improper and wrong for any of the justices to sit on any future panel after the trial would have been concluded and any of the parties finds it necessary to appeal again to the Court of Appeal in respect of this same matter. Issue (c) therefore succeeds.
In conclusion I must say I agree with the Court of Appeal when it said (per Kalgo, J.C.A.) on page 259 of the record thus –
“I therefore agree with the learned trial Judge in his ruling overruling the No Case submission, that the totality of the evidence of the prosecution adduced before him on the stealing charge against the appellants, has established a prima facie case of stealing the money of the complainant and that, the appellants should be called upon to defend (see Ajidagba v. I.G.P. (1958) 3 FSC 5 at 6 (1958) SCNLR 60).”
As I said I have myself read and studied the record in this case. I say again that I agree with the conclusions of lower courts that on the authorities the prosecution has made out a case of stealing in respect of counts 2 and 3 against the appellants for them to defend, if necessary.
Although issue (3) succeeds it is not sufficient to alter the fate of the No Case submission as originally decreed by the lower courts. Consequently this appeal fails and it is hereby dismissed. The decisions and orders of the lower courts are confirmed. For the avoidance of doubt the case is sent back to the High Court for continuation of trial.
SC.204/1994
