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Olu Onagoruwa V. The State (1993) LLJR-CA

Olu Onagoruwa V. The State (1993)

LawGlobal-Hub Lead Judgment Report

NIKI TOBI, J.C.A.

The appellant is a Legal Practitioner. He has his practice at No. 96, Lagos Street, Ebute Metta, Lagos. P.W.8 is the complainant. She is Alhaja Taibat Adeniji. She lives at No. 50 Community Road, Akoka, Lagos. She is a business woman having a number of companies. Losada Nigeria Ltd. is one. The charge wrongly referred to her as Alhaji Taibat Adeniji. I would like to think that there is a difference between the two, and it is a ‘gender’ difference. While Alhaja refers to a female Muslim, Alhaji refers to a male muslim. The two cannot be used indiscriminately or interchangeably. P.W.8, being a woman is an Alhaja, not an Alhaji. It is unfortunate that the prosecution was that careless, in a serious matter such as this. They amended the charge once but they did not see the mistake. And so it went through their entire case.
Although the mistake is of no significance in this appeal as it is not raised by the appellant, it clearly underscores the point that counsel should not take lightly the preparation of Court processes and Court documents. Some are. Like the one in this case. They have a duty to ensure the accuracy of all Court processes, a’fortiori, a charge, which the law expects to be very exact and precise to the minutest detail. Somebody was careless somewhere. That is not good and that is the point I am making. Having made the point let the slip stay where it is.

The appellant and P.W.8 are cousins. As a matter of fact they are first cousins. They both say so. Apart from being blood relations, they had some cordial professional relationship. That relationship has broken down. In its place is this criminal matter now in between them. P.W.8 was a client to the appellant. The exact date of their professional relationship is not in evidence. That is not important. What is important is that the professional relationship between the two resulted in some misunderstanding, a misunderstanding in which P. W.8 invited the police to investigate.

Following police investigation, the office of the Director of Public Prosecutions. Lagos State, preferred a charge against the appellant. It was a charge of stealing the sum of N720,000.00. Let me state the charge for ease of reference:
“STATEMENT OF OFFENCE
Stealing, contrary to Section

390(a) of the Criminal Law. Cap. 31, Laws of Lagos State.
PARTICULARS OF OFFENCE
Dr. Olu Onagoruwa (m) between the years of 1982 and 1987 at No. 24/26 Lagos Street, Ebute Metta, in the Lagos Judicial Division stole the sum of Seven Hundred and Twenty Thousand Naira (N720,000.00) property of Alhaji (sic) Taibat Adeniji, being the proceeds of the disposition of her landed property situate at Gbagada in Lagos State and which disposition you undertook on her behalf.”

The appellant was arraigned before Silva, J. on 30th January. 1989. He pleaded not guilty. The prosecution called eight witnesses, including the complainant. The case of the prosecution can be summarized as follows: P.W.8 is the ‘Chairman’ of Losada Nigeria Limited. The company needed some money to pay off some retrenched workers and return fares of some expatriate staff. It borrowed N500.000 from Wema Bank (Nigeria) Limited. P.W.8 stood as guarantor for the loan. She pledged her land at Medina Estate to the Bank. P.W.8 entered into a mortgage agreement with the Bank.

Losada Nigeria Limited defaulted. Wema Bank decided to recover the loan by selling the Medina Estate land

of P.W.8. She pleaded with the General Manager of the Bank to allow her sell the land and repay the loan. This was acceptable to the Bank. The parties agreed to call in their solicitors at that stage to draw up an agreement. Professor M.I.Jegede acted for Wema Bank. while the appellant acted for P.W.8. An agreement was reached along the line proposed by P.W.8.

P.W.8 thereafter instructed the appellant to sell the land and pay the proceeds of the sale into a client’s account at Wema Bank so that the loan “would gradually be repaid”. Appellant sold forty-eight plots. Although the average price per plot was N15.000.00, the appellant sold some for that amount and others for N10.000.00 and N20.000.00.

Following a Daily Times publication that Wema Bank was to sell the land to recover the loan, P.W.8 called the appellant to know how much he had paid into the Bank. He said he had paid in the sum of N40,000.00. P.W.8 expressed some surprise. To her, the amount paid was rather small, particularly in the light of the fact that about twenty persons had purchased land in the estate. Although the appellant took an action against the bank to stop the sale, the

action failed. P.W.8 pleaded with the bank to give her more time to repay the loan. The Bank agreed and so she did so instalmentally.

According to the prosecution, demands were made from the appellant for the sum of N720,000.00 being the proceeds of the sale of the plots of land but he refused to return the money. Efforts by persons to settle the matter failed. And so the matter was reported to the police.

At the close of the case for the prosecution, learned counsel for the appellant made a no case submission. Learned counsel for the prosecution replied. The learned trial Judge held in his ruling that the appellant has a case to answer. He said:
“I will only consider whether there is any evidence however slight linking the accused with the criminal offence charged or whether upon the evidence before it a prima facie case has been made out requiring some explanation from the accused person … I am satisfied that there is enough evidence before the Court linking the accused person with the offence charged. I think it is necessary that he should be called upon for his explanation.”

Aggrieved by this ruling, the appellant has come before

Briefs were filed and duly exchanged. The appellant also filed a Reply Brief. The appellant formulated the following two issues for determination, which the respondent agrees with:
“3.1 Whether on the evidence on record, the learned trial Judge came to the right conclusion in over-ruling the submission of no case to answer made on behalf of the appellant and calling on the appellant to enter upon his defence.
3.2 Whether the delivery of ruling of the learned trial Judge over 3 months after final addresses of counsel does not vitiate the entire proceedings and render it a nullity having regard to the unsuspended provisions of Section 258(1) of the 1979 Constitution.”???On issue No.1, learned counsel for the appellant, Chief Gani Fawehinmi said that the no case submission was made pursuant to Section 286 of the Criminal Procedure Law Cap.32, Laws of Lagos State and that the learned trial Judge’s decision overruling the no case submission was predicated upon the provision of Section 287(1) of the same law. From the wordings of the provisions of the sections, it is clear that if at the close of the prosecution’s case, it appears to the trial

Court that a case is not made out against the accused person sufficiently to require him to make a defence, the trial Court in the circumstances has a duty to discharge him in relation to that charge. The trial Court can only call upon the accused person at that stage to make his defence if it appears to it at the end of the evidence led by the prosecution in support of the charge that a prima facie case is made out against the accused person, counsel contended.

It was the further contention of learned counsel that although the provisions of Sections 286 and 287 require the trial Court as a matter of must to discharge the accused person (where Section 287(1) is applicable), the defence can on its own still make an application under Section 286 for the discharge of the accused person at the close of the prosecution’s case. An application by the defence in circumstances of this kind is understood to say “I have put in all the evidence I have against the accused person”, counsel submitted, relying on Onagoruwa v. State (1992) 5 NWLR (Pt.244) 713 at 727.

There are no provisions in the Criminal Procedure Law of Lagos State or any other statute

applicable in Lagos State stating the conditions which must be present before the trial Court applying the provisions of Section 286 can rule at the close of the prosecution’s case that a case is made out against the accused person sufficiently to require him to make his defence, learned counsel claimed. He submitted however that a trial Court faced with a situation of deciding on a no case submission can resort to English practice governing a submission of no case to answer. Relying on the cases of Ibeziako v. Commissioner of Police (1963) 1 SC NLR 99 at 107; and Atano v. Attorney-General of Bendel State (1988) 2 NWLR (Pt.75) 201 at 219. Learned counsel stated the English practice as follows: A no case submission by the defence at the close of the prosecution’s case ought to be upheld when either:
“(a) There has been no evidence to prove an essential element in the offence with which the accused is charged; or
(b) 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.

He also relied on Adeyemi v. State (1991) 6 NWLR

(Pt. 195) 1 at 35. Urging the Court to give words of Section 286 their ordinary meaning, counsel made reference to Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377; Lawal v. G.B. Ollivant (Nig.) Ltd. (1972) 3 S.C.124 at 137; and Ifezue v. Mbadugha (1984) 1 SCNLR 427 at 447.

Having dealt with the purport of Sections 286 and 287(1) of the Criminal Procedure Law, learned counsel examined the ingredients of the substantive offence of stealing under Section 283 of the Criminal Code, Cap.31, Laws of Lagos. He relied on R. v. Taylor (1911) 1 K.B. 674 at 679: R. v. Easom (1971) 2 All E.R. 945 at 947; R. v. Orizu (1954) 14 W.A.C.A. 455 at 457; State v. Odumayo (1967) NMLR 92 at 95; Commissioner of Police v. Akpaw (1967) 1 All NLR 235 at 240; Makwe v. Commissioner of Police (1989) 1 CLRN 92 at 102; and Adewusi v. Queen (1963) 2 SCNLR 245; (1963) 1 All NLR 316 at 319.

Counsel submitted that going by the provisions of Section 383 of the Criminal Code Law, the evidence led by the prosecution in support of the charge preferred against the appellant must at the close of the prosecution’s case, disclose the following essential ingredients:-
(a) That there was in

existence the sum of N720,000.00 as proceeds of the disposition of Alhaja Taibat Adeniji’s landed property situate at Medina Estate in Gbagada.
(b) That the appellant took or converted either to his own use or to the use of any other person the sum of N720.000.00 of Alhaja Taibat Adeniji (P.W.8) which sum was the proceeds of the disposition of the Alhaja’s landed property at Gbagada.
(c) That such taking or conversion by the appellant was done fraudulently because: (i) Appellant did so with an intent permanently to deprive Alhaja Adeniji of the thing of it: or
(ii) The appellant used the Alhaja’s money at his own will.”

Counsel submitted that it was not established before the trial Court how the sum of N720,000.00 was realised by the appellant as proceeds of the sale of the landed property in Medina Estate at Gbagada.

He submitted further that the following questions must be answered factually by clear evidence by the prosecution in the ascertainment of the proceeds of the sale before a prima facie case can be said to have been established. (1) Where is the land situated? (2) What is the size of the land? (3) Is the land plotted and

if so, how many plots were there and what is the size of each plot? (4) What is the selling price of each of the plots? (5) To whom was each plot sold? How much did each purchaser pay for each plot bought? (8) What is the total amount realised by the appellant from the sale?

Learned counsel painstakingly and skillfully went through the evidence of the witnesses and submitted that on the whole, the prosecution was unable to establish a prima facie case of the amount allegedly charged to have been stolen by the appellant. Relying on Mumuni v. State ( 1975) 6 S.c. 79 at 123: Echemanzu v. Queen (1959) SCNLR 132 at 134 and Okogbue v. Commissioner of Police (1965) NMLR 232 at 236-237, learned counsel contended that the prosecution was under a duty to prove that the exact amount of N720,000.00 in the charge was stolen by the appellant.

Still on the ingredients of the offence of stealing, and the burden of proof, learned counsel cited Yongo V. Commissioner of Police (1992) 8 NWLR (Pt.257) 36 at 50: Clark V. The State (1986) 4 NWLR (Pt.35) 381 at 403: Keshinro v. Queen (1957) SCNLR 74 at 75; Nine Days v. Queen (1959) SCNLR 499 at 503: Onabamiro v. The

State (1968) 1 All NLR 101 at 112; Babalola v. The State (1989) 4 NWLR (Pt.115) 264 at 288, and submitted that the prosecution has not established a prima facie case to warrant a defence from the appellant.

Relying on the definition of a prima facie case in Ajidagba v. Inspector-General of Police (1958) SCNLR 60 at 62 and Adeyemi v. The State (supra), learned counsel submitted that a prima facie case against an accused within the context of Section 287 cannot be said to be made out once the prosecution’s evidence at the close of its case failed to establish all or any of the essential ingredients of the offence. for:
(a) If the essential ingredients of the offence are not present at the close of the prosecution’s case, what is the ground for proceedings.
(b) Although at that stage, the trial Court is not being called upon to convict, the essence of the trial Court ruling that a prima facie case has been established amounts to the following: “If you (accused) do not have any defence to all that is before the Court, the Court can safely convict you.”

Learned counsel submitted that the learned trial Judge was in error in not discharging the

appellant at the close of the prosecution’s case, for if he had correctly applied the law on no case submission to the facts of the case, he would have come to the conclusion that there was no need to call upon the appellant to make a defence as per the particulars of the offence charged as this would amount to calling on the accused to establish his innocence. Urging the Court to reverse the decision, learned counsel cited Okoro v. The State (1988) 5 NWLR (pt.94) 255 at 277.

On issue No.2. learned counsel narrated to the Court that evidence on the no case submission was concluded on the 29th of November, 1989. Final address of the counsel on the no case submission was concluded on the 9th of March, 1990. The trial Court delivered its ruling on 21st of June, 1990. The interval between the dates of final address of counsel and the ruling of the trial Court thereon was three months and twelve days.

Accordingly, learned counsel submitted that by Section 258(1) of the Constitution of the Federal Republic of Nigeria, the ruling is a nullity. He cited Ifezue v. Mbadugha (1984) 1Â SCNLR 427 at 450 on the construction of the word “shall” in

the subsection. Contending that the subsection applies to a ruling on no case submission, learned counsel relied on Onagoruwa v. State (1992) 5 NWLR (Pt.244) 713 at 729. Dealing with Section 258(1) of the Constitution, counsel submitted that the appellant suffered a miscarriage of justice arising from the delivery of the ruling outside the three months stipulated in the Constitution. He called the attention of the Court to Osuolale v. State (1991) 8 NWLR (Pt.212) 770 at 777; Mora v. Adewusi (1962) 2 SCNLR 78 at 79, and Sanusi v. Ameyogun (1992) 4 NWLR (Pt.237) 527 at 554.

Learned counsel for the respondent. Mr. David Oyeike, in dealing with the first issue submitted that a prima facie case simply means that at the close of the case of the prosecution there is some evidence which calls upon the defence to offer some explanations to the Court. It is a case which at the close of the prosecution’s evidence offers a ground for the Court to proceed with the case. He relied on Ajidagba v. Inspector-General of Police (1958) SCNLR 60; (1958) 3 F.S.C. 5 at 6; Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24 at41 and Daboh v. The State (1977) 5S.C.107 at 210.

On the

amount charged as stolen in the Court, learned counsel submitted that the prosecution need not prove the entire amount to succeed. It is sufficient for the prosecution to prove that the appellant stole part of the amount charged. He relied on R. v.Tyson II WACA 90 at 92; Eronini v. The Queen (14 W.A.CA. 366 at 368; Sagoe v. Queen (1963) 2 SCNLR 210; (1963) 1 All NLR 290; Machent v. Quin (1970) 2 All E.R 255 and Atano v. A.-G ..Bendel State (1988) 2 NWLR (Pt.75) 201. Accordingly, to succeed on appeal, the appellant must show that he did not sell the land at all or even if he sold any he had made full payment to the bank in pursuance of his instructions from P.W.8. Counsel called the attention of the Court to what he regarded as concessions by the appellant that the sum of N75,000.00 was realised by him from the sale.

While conceding that proof of fraudulent intention is a desideratum in a charge of stealing, counsel submitted that an intention permanently to deprive P.W.8 of her money, can be proved by circumstantial evidence, as it is proved. He relied on Commissioner of Police v. Obianaba (1966) 1 All NLR 208 at 209 and Ngon v. Smith (1964) 3

All E.R. 395.

On the second issue, learned counsel submitted that this Court was wrong in dealing with Section 258(1) of the Constitution in Onagoruwa v. The State (1992) 5 NWLR (Pt.244) 713 at 729, when that issue was not before it. He pointed out thatÂ the solitary issue that arose before this Court was whether or not a ruling on a no case submission is appealable. Since the issue formed ground 5 of the Grounds of Appeal in this appeal, it was not before this Court in Onagoruwa v. State (supra): therefore the pronouncement of this Court should be regarded as obiter dictum. Relying on Akilu v. Fawehinmi (No.2) (1989)2 NWLR (Pt. 102) 122 at 175; Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt.247) 266 at 287; Olaniyi v. Aroyehun (1991) 5 NWLR (Pt.194) 652 at 692; and Ladoke v. Olobayo (1992) 8NWLR (Pt.261) 605, learned counsel submitted that a Court cannot in an interlocutory proceeding grant the reliefs claimed in the substantive case.

On the legal ambit of Section 258(1) of the Constitution, learned counsel submitted that the subsection does not comprehend addresses on a no case submission for such addresses are not final addresses as stated in the

subsection. Examining the wordings of the subsection, particularly the words “final address” and “conclusion of evidence”, learned counsel submitted that at the stage of a no case submission, it cannot be said that addresses have been final on both sides. To counsel, if the accused person decides to go into the box and call evidence upon the over-ruling of the no case submission, then another address is still contemplated. He referred the Court to Sections 241 and 242 of the Criminal Procedure Law, Cap. 32, Laws of Lagos State, 1973. There is therefore no law which regards an address on a no case submission as final address, learned counsel argued.

???Dealing with the words “conclusion of evidence” in Section 258(1), learned counsel contended that it cannot be said that at the close of the case for the prosecution, evidence has been concluded in the case. The defence still has a chance upon its over-ruling thereof to call evidence in proof of his case. Counsel said that there is no authority on the issue. To counsel, all the cases in which Section 258(1) was invoked to impugn a judgment involve cases in which final, not interlocutory decisions were read

outside the three months time limit. Citing Ifezue v. Mbadugha (1984) 1 SCNLR 427; (1984) 5 S.C. 79; Odi v. Osafile (1985) 1 SC. 37; (1985) 1 NWLR (Pt. 1) 17; Awoyale v. Ogunbiyi No.1 (1985) 2 NWLR (Pt.10) 861; Sodipo v. Lemminkainen (1985) 2 NWLR (Pt.8) 547; Chukwuogor v. Obuora (1987) 3 NWLR (Pt.61) 454, to strengthen his position, counsel submitted that the appellant has no justification to extend the frontiers of that principle to the cases in which evidence was neither concluded nor was there final address. The evidence and addresses of no case submission are not conclusive but merely inchoate, counsel submitted. Urging the Court to stick to the ordinary and literal meaning of the words, counsel referred to Ayoke v. Bello (1992) 1 NWLR (Pt.218) 380; Asuquo v. The State (1967) 1 All NLR 123at 126; Udoh v. OHMB (1990)4 NWLR (Pt.142) 52 at 68; and Ogbonna v. Attorney-General, Imo State (1992) 1Â NWLR (Pt.220) 647 at 674.

Even if Section 258(1) of the Constitution applies to a no case submission, (without necessarily so conceding) learned counsel submitted that the irregularity has not occasioned a miscarriage of justice. He called the attention of the Court

to Decree No. 17 of 1985, and the case of Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377. It was the contention of counsel that the miscarriage of justice must appear on the face of the ruling, and that the appellant has not shown how the twelve days delay has occasioned a miscarriage of justice. He urged the Court to dismiss the appeal.

Chief Fawehinmi, in his reply brief, submitted that in order to succeed in a submission of no case to answer the appellant should satisfy the Court either that there has been no sufficient evidence to prove an essential element in the alleged offence or alternatively that 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 convict on it. He need not prove all the two grounds. Counsel referred to Alano v. Attorney-General, Bendel State (supra) and Ohuka v. The State (No.2) (1988) 4 NWLR (Pt.86) 36 at 43.

Counsel further submitted that the two grounds avail the appellant as there are material contradictions in the evidence of the prosecution witnesses which make it manifestly unreliable that no reasonable

tribunal could safely convict on it. He made copious references to the evidence of some of the prosecution witnesses and the cases of Ibrahim v. State (1991) 4 NWLR (Pt.186) 399 at 415; Adeyemi v. State (1991) 6 NWLR (Pt.195) 1 at 35; and Akpan v. State (1991) 3 NWLR (Pt.182) 646 at 657.

On the issue of proof of lesser amount than that charged, learned counsel submitted that the appellant paid over and or transferred a total sum of N85,130.00 in favour of P.W.8, which sum is higher than the sum of N75,000 claimed according to the receipts tendered by the prosecution as realised from sale of land at Medina Estate by the witness.

Replying on Section 258(1) of the Constitution vis-a-vis a ruling on no case submission, learned counsel pointed out that a ruling on no case to answer though may appear to be interlocutory in nature, will, where sustained have the effect of terminating the proceedings and discharging the accused on the merits. He referred to Section 381 of the Criminal Procedure Law and the cases of Inspector-General of Police v. Marke (1957) SCNLR 53 at 56-57 and Adeyemi v. State (supra).

Learned counsel further submitted that the

prosecution failed to establish that P.W.8 was the owner of the money claimed to have been stolen. To counsel, the evidence is that the money belongs to Losada Nigeria Limited, a legal entity different from the management of the company. He relied on the evidence of P.W4, Exhibit 16, Forrn No.9 of 2nd Schedule to Criminal Procedure Law, Cap. 32, Laws of Lagos State and the cases of Adewusi v. The Queen (1963) 2 SCNLR 245 at 248; Kurubo v. Zachi-Motison (Nig.) Ltd. (1992) 5 NWLR (Pt.239) 102; Agbonmagbe Bank v. GB. Olivant (1961) ALL NLR 116; Fawehinmi v. N.BA. (No.2) (1989) 2 NWLR (Pt.105) 558; Tuakli v. N.R.C. (1970) 2 ALLÂ NLR 147; and Yusuff v. J.A. Brothers (1991) 7 NWLR (pt.201) 39.

Relying on Attorney-General v. Chanrai (1965) 1 All NLR 323 at 328, learned counsel urged the Court to acquit the appellant.

???The terms, “no case submission” and “prima facie case” go together in the administration of criminal justice. They do not however go together like siamese twins. As a matter of law, there is no “blood” relationship between them. They are rather enemies, fighting each other in opposite and opposing corrections with a view to devouring each other. They are

enemies perpetually at war with each other. They never see eye to eye. They speak two different and distinct languages in opposition of each other.
As a matter of law and fact, two different persons in the criminal justice system are involved in calling the Court’s attention to them. While the accused person submits to the Court that he has no case to answer, the prosecution makes the contrary submission that a prima facie case is made out against the accused and that he should be called upon to make his defence.
At the no case submission stage, the accused person or his counsel says something to the following effect:

“My Lord, you have listened to the case of the prosecution. While I do not agree with the case so far presented, you may wish to accept the evidence for the purpose of what I want to say now, and if I may emphasise only for that purpose. What I want to say is this. Even if you accept the evidence as true and correct, the prosecution has not, in law, made any case against me to warrant my defence. In other words, there is no evidence before you to invoke the provision of Section 287(1) of the Criminal Procedure Law, Cap. 32, Laws

of Lagos State. I do not want you to waste your precious time and that of mine too, by calling for my defence. That will be a fruitless exercise. Please discharge me at this stage. Section 286 of the Criminal Procedure Law is your authority for so doing.”
On the other hand, the prosecutor says something to the following opposite effect:
“My Lord, you have heard the evidence led by the prosecution. The law forbids you at this stage to go into the credibility of the witnesses. That has to wait for the stage of final address. As a matter of law, you are not expected at this stage to give a detailed or long ruling unless it is a ruling that the accused has no case to answer; but certainly not when you rule that he has a case to answer. That may be prejudicial to the merits of the case. All that the law expects of you is to examine whether from the evidence that I have led before you, some case is made out against the accused that will form legal ground for proceeding further or that links the accused with the offence and that such evidence is apparent on the face of the case. There is such evidence. You are therefore entitled by law to invoke the

provision of Section 287(1) of the Criminal Procedure Law as Section 286 of that law does not apply. Finally, I wish to submit that my duty at this stage is not to establish the guilt of the accused beyond reasonable doubt. That has to wait till final address. We are not there yet.”
With the above hypotheses, I now proceed to deal with what constitutes a prima facie case in law or what in law is a prima facie case. The Latin expression prima facie in ordinary parlance means on the face of it; at first sight; on the first appearance; so far as can be judged from the first disclosure. It also means a fact presumed to be true unless disproved by some evidence to the contrary.
A prima facie case according to Black’s Law Dictionary is a case “which has proceeded upon sufficient proof to that stage where it will support findings if evidence to contrary is disregarded”. It is a case which on the face of it is sufficient to call upon the accused to make his defence, without which a Court of law is competent to proceed to conviction. It is a case where the prosecution has presented sufficient evidence to render reasonable a conclusion on the face of the

evidence that the accused is convictable, in the absence of a contrary evidence.
Prima facie evidence in probably, if not exactly synonymous with sufficient evidence. It is evidence which on the face of it, is sufficient to sustain the charge preferred against the accused. It is evidence which, in the eyes or in the judgment of our adjectival law is sufficient to establish the guilt of the offence he is charged with.
The expression, “prima facie case” was defined way back in 1931 in the Indian case of Star Sigh v. Jitendran a-thsen (1931) 1 L.R. 59 Calc. 275 in the following words:
“What is meant by prima facie (case). It only means that there is ground for proceeding. But a prima facie case is not the same 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 fade case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused.” Per Lord-Williams, J.
The Federal Supreme Court adopted the above definition in Ajidagba v. Inspector General of Police (1958) SCNLR 60 and the Supreme Court

also adopted it in Adeyemi v. State (1991) 6 NWLR (Pt. 195) 1 at 35.
The expression “ground for proceedings” in sign, in my view should be determined in the strict context of the charge and the evidence adduced by the prosecution. If there is no sufficient evidence linking the accused with the statutory elements or ingredients of the offence and I mean statutory elements and ingredients, a Court of trial must, as a matter of law, discharge him. It has no business searching or scouting for evidence that is nowhere and therefore cannot be found. That will not be consistent with our adversary system. It is inquisitorial in design and in execution.
In Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24 at 31, Nnamani, J.S.C., also followed Sigh:
“It seems to me the simplest definition is that which says that ‘there is ground for proceeding’. In other words, that something has been produced to make it worthwhile to continue the proceedings. On the face of it suggests that the evidence produced so far indicates that there is something worth looking at.”
???No case submission means what it says and it is that from the evidence adduced by the prosecution the

accused has no case to answer and should not therefore be called upon to defend himself. By a no case submission, the accused submits that the prosecution has not made a prima facie case against him and that he should not be made to face the ordeal of defending himself. This explains the enemity between “prima facie case” and “no case submission”. There is so much animosity between the two of them. As a matter of law, no love is lost between them. They are always at daggers drawn or in a state of perpetual hostility.

I have taken the trouble to define the expressions, not necessarily for the fun of exercise in diction but rather because of their central place in the determination of the live issues in this appeal. By doing so, I have set the scene for a proper analysis of the legal position of the matter in the light of the facts. In Ibeziako v. Commissioner of Police (1963) 1 SCNLR 99; (1963) 1 All NLR 61, the Supreme Court adopted the Practice Note enunciated by Parker. L.C.J., which is reported in (1962) I All E.R. 448. Ademola, C.J.N. reproduced it thus at pages 68 and 69:
“A submission that there is no case to answer may properly be made and

upheld:
(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 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.”
The practice note was also followed by the Supreme Court in Atano v. Attorney GeneralÂ Bendel State (1988) 2 NWLR (Pt.75) 201.
Should all the two conditions laid down by Parker, L.C.J. be satisfied before a Court of law can rule that an accused has no case to answer. I think

not. In my view, a trial Judge is competent to rule that an accused has no case to answer if one of the two conditions is satisfied. In other words, the conditions are disjunctive and not conjunctive, indicating an alternative situation. The position should have been clearer and neater if Parker, L.C.J. had separated the two conditions by the word ‘or’. It is possible that he did not mean so. That will, with respect, not make so much meaning as it may unnecessarily push an accused to prove his innocence, which is contrary to the entire web or concept of presumption of innocence on the pan of an accused.
Under the first condition, a trial Judge is entitled to discharge the accused if he is satisfied that the prosecution by its own evidence, that is to say, by the ipse dixit of the witnesses, did not prove or establish an essential element of the offence. A trial Judge may come to this conclusion even on evidence procured by the defence under cross-examination.
The second condition provide for an alternative by the use of the word “or”. Under the first arm, an accused can be discharged on a no case submission if the trial Judge comes to the

conclusion that he cannot give credibility or credence to the case of the prosecution, as a result of the cross examination of the witness by the defence. In other words, by the cross examination, the trial Judge does not believe the evidence of the prosecution. The case of the prosecution succumbs to the rigours of the cross examination so much so that the evidence is deprived of credibility.
Under the second arm, the trial Judge can discharge an accused suo motu if the evidence adduced by the prosecution does not, on the face of it or by mere perception, disclose a prima facie case against him.
In whatever alternative or option the trial Judge decides to invoke, the law expects him to examine the totality of the evidence of the prosecution as a single flowing story. He cannot examine bits or pockets of the evidence in ‘quarantine’ and come to a conclusion one way or the other. He has not such jurisdiction.

Another position of the law is that at the stage of ruling on a no case submission, the trial Judge should not consider the issue of credibility of the witnesses. He should not look at that side of the matter, It is a forbidden area; a no man

zone, at least for the purpose of the no case submission. That is the position of the law in England. So in Nigeria too. Thus in R. v. Coker (1952) 20 NLR 62, five accused were charged with the theft of 240 bags of tin ore, property of the Nigerian Railway from a railway wagon, contrary to Section 390(4)(c) of the Criminal Code. The crown adduced evidence from 29 witnesses. Mr. Davies, in the course of his submission tried to touch on the credibility of the witnesses but Hubbard, J. stopped him. He said at page 63:-
“He clearly wished to address me at length on the submission, but I ruled at once that there was a case to answer. I think it is proper that I should indicate my view on this matter. I am fortified in what I am about to say by the fact that the Supreme Court of Palestine, a Court of Appeal and not of first instance, laid down the same rule. 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 believed it, it could convict. The question whether or not the Court does believe the evidence does not arise, nor is the credibility of the witnesses in issue, at this

stage.”
See also R. v. Ogucha (1959) SCNLR I54; Ajidagba v. Inspector-General of Police (1958) SCNLR 60; Attorney-General of Anambra State v. Nwobodo (1992) 7 NWLR (Pt.256) 711.
By the above position of the law, the trial Judge is put in a position to pretend in the course of determining whether the accused has a case to answer. Paradoxically, the same law says that at the stage of a no case submission, the trial Judge should discharge the accused if the evidence before him is so unreliable that a reasonable tribunal cannot safely convict. Considering the factual position that credibility has something in common with reliability, truth, and veracity, I see in this situation some self contradiction in our adjectival law. Speaking for myself, I do not see anything wrong in taking the issue of credibility of the witnesses together and come to the conclusion in a swoop whether a case is made out or not. So far that is not the position of the law, and the hard and rigid principles of stare decisis will not allow me to depart from that ‘sane’ path and so I bow, hoping that someday the position will change. I will apply the present position of the law in

this appeal. I merely thought aloud.

And that takes me to the two statutory provisions. Section 286 is one. Section 287(1) is another, all of the Criminal Procedure Law, Cap. 32, Laws of Lagos State. Section 286 is in the following terms:
“If at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence the Court shall as to, that particular charge discharge him.”
On the other hand, Section 287(1) provides:
“At the close of the evidence in support of the charge if is appears to the Court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the Court shall call upon him for his defence.”
As it is, Section 287(1) provides for the opposite situation in Section 286. Section 286 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.
???The adverb,

‘sufficiently’ which is a common denomitor in both Section 286 and 287(1) is derived from its noun variant of ‘sufficience’ or ‘sufficiency’. The expression, in its aggregate content basically means enough, or adequate. The word ‘sufficiency’ may also carry the connotation of competence.
Applying the above to the two provisions give the following result. If at the end of the case for the prosecution, the evidence led by the witnesses is not enough, adequate or competent to require the accused to defend himself, the trial Judge will discharge him. If on the other hand the evidence in support of the case of the prosecution establishes a prima facie case in the sense that it is enough, adequate or competent to call upon the accused to open his defence, the trial Judge will do just that.

Before a trial Judge comes 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. In other words, the prosecution must, at that stage, prove an essential element in the alleged

offence. An essential element, in the context of the English Practice Note, in my humble view, means an element without which the offence cannot be sustained in law. It is an inevitable, indispensable and important element of the offence.

While the burden of proof in criminal cases is beyond reasonable doubt, the burden to enable the Court invoke the provision of Section 287(1) of the Criminal Procedure Law of Lagos State is not as high as that. The burden at the level of invoking the subsection is that of establishing a prima facie case.

In considering whether the case comes within the provisions of Section 286 or 287(1) of the Criminal Procedure Law, I must deal with the offence with which the appellant is charged in the light of the facts of the case. The charge once again reads:
STATEMENT OF OFFENCE Stealing, contrary to Section 390(9) of the Criminal Code Law, 31, Laws of Lagos State:
“Dr. Olu Onagoruwa (m) between the years of 1982 and 1987 at No. 24/26 Lagos Street, Ebute Metta, in the Lagos Judicial Division stole the sum of Seven Hundred and Twenty Thousand Naira (N720,000.00) property of Alhaji (sic) Taibat Adeniji, being the

proceeds of the disposition of her landed property situate at Gbagada in Lagos State and which disposition you undertook on her behalf.”

Section 390 creates the offences of stealing and the general punishment. Section 390(9) under which the appellant is charged specifically provides for an imprisonment for seven years if the value of the thing stolen is One Thousand Naira or above. Since the appellant is alleged to have stolen the sum of N720,000.00 it is certainly above and over N1,000.00 hence he is charged under Section 390(9) of the Code.
It is Section 383 of the Criminal Code Law, Cap. 31, Laws of Lagos State that defines the offence in the following terms:
“(1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.
(2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently ifÂ he does so with any of the following intents:
(a) an intent permanently to deprive the owner of the thing of it;
(b) an intent permanently to deprive any person who has any

special property in the thing of such property;
(c) an intent to use the thing as a pledge or security;
(d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;
(e) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;
(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.”
From the wordings of Section 383 of the Code, in order to succeed in the charge, at the no case submission stage, the prosecution must establish a prima facie case in respect of the following essential elements: (a) The owner of the thing stolen. (b) That the thing stolen is capable of being stolen. (c) That it was fraudulently taken or fraudulently converted.
???I should at this stage examine each or some of the above essential elements in turn in the light of the evidence led by the prosecution. Ownership is a most vital and indispensable, essential or ingredient of the offence of

stealing. It is the prop upon which all other essentials or ingredients stand. It is the baseline of the offence of stealing. Before an accused could be convicted of the offence of stealing property, there must be evidence that the property is owned by a person. The person could be a natural person or an artificial person. The person could be known or unknown but the property must be owned or capable of being owned. After all, no person can be charged with stealing air, nature’s most precious free gift to mankind, a gift which is available to the rich and the poor equally.
In the offence of stealing, the particulars of offence must show the name of the owner of the property. For instance, Form 9 of the 2nd Schedule to the Criminal Procedure Law, Cap. 32, Laws of Lagos State states thus:
“STATEMENT OF OFFENCE-FIRST COUNT
Stealing, contrary to Section 390 of the Criminal Code. Particulars of Offence
A.B., on the day of 19 in the province of ….stole a bag, the property of C.D.”

I have taken time to compare the above specimen charge with that faced by the appellant and I have no difficulty in coming to the conclusion that the charge is properly

framed, as it contains the alleged owner of the money stolen, who is Alhaja Taibat Adeniji (and not Alhaji as indicated in the charge).

Although the law recognises certain instances when an accused may be charged with what was stolen as property of persons unknown (if that is the real situation), where the element of special ownership and value of the property is not only important, but also in dispute, as in the instant case, the charge must contain the name of the owner of the property. See Adewusi v. The Queen (1963) 2 SCNLR 245; (1963) 1 All NLR 316; Hibbert v. Mckienan (1948) 1 All E.R. 860.

I now pause here to go into the evidence of ownership of the money allegedly stolen by the appellant. P.W.4, the Legal Adviser and Company Secretary of Wema Bank Limited said in his evidence in-chief at page 48 of the Record:
“Losada Nigeria Limited is a customer of the Ebute Metta branch of the Bank and they are heavily indebted to the bank. As security for Losada’s indebtedness we have a legal mortgage in that company’s property known as Medina Estate at Gbagada. After the Losada company had persistently defaulted in the repayment of their debt

to the bank, we made attempts to sell the land at Medina Estate. The customer approached the bank and pleaded that it would be better to allow the company, i.e. Losada Nigeria Limited, to sell the land and pay the proceeds into the company’s account. The Chairman of the company i.e. Losada Nigeria Limited, Alhaja Taibat Adeniji came to the bank in company of the accused person who was acting as the Company Lawyer. We then commissioned an external lawyer, M.I. Jegede and Company, to represent Wema Bank in this matter. A proposal was drawn up to the effect that Losada Nigeria Limited would sell the land and pay the proceeds into the Ebute Metta branch of Wema Bank. The drawn up proposal was signed by M.I. Jegede and Company our external lawyer, and the accused person acting on behalf of Losada Nigeria Limited. The original copy of the agreement was sent to us i.e. WEMA Bank. In the course of moving our office, we have not been able to find this original copy. We however have a copy in the customer’s file in our bank. I saw the original copy after it was signed by the parties. I can identify the copy of the agreement if I see it. This is it. The agreement is

certified by me.”

The certified copy was tendered and admitted in evidence as Exhibit 16. P.W4 continued at page 49:
“According to Exhibit 16, the accused person was to take charge of the sale of the land on behalf of Losada Nigeria Limited. As far as I am aware, no payment was made from the proceeds of the sale of the land into Losada Nigeria Limited account at Wema Bank, Ebute-Metta Branch.”

P.W.7, the son of P.W.8, (the complainant), in his evidence on the status of Losada Nigeria Limited in the mortgage loan transaction, said:
“I know Losada Nigeria Limited. Alhaja Taibat Adeniji who is my mother is the Chairman of Losada Nigeria Limited. I am a Director of the company. I have been a Director of Losada Nigeria Limited since 1975. In 1982, Losada Nigeria Limited was indebted to Wema Bank, Oyingbo branch. I know that the company was owing a substantial amount but I cannot now remember how much it was. Wema Bank wanted to sell the mortgaged property of Alhaja Taibat Adeniji who was the guarantor of Losada Nigeria Limited … I can identify the Deed of Mortgage between Alhaja Taibat Adeniji as guarantor to Losada Nigeria Limited, and Wema Bank

Limited if I seek (sic) it. This is the Deed of mortgage. I see (sic) to tender the Deed of Mortgage (Deed of Mortgage admitted as Exhibit 27) … Alhaja Taibat Adeniji and I then made alternative arrangements whereby we started paying money directly into Losada Nigeria Limited Account with Wema Bank … I have seen Exhibit 16. It is true that apart from Exhibit 16 there is no other agreement for the sale of the land at Medina Estate.”

P.W.8, the complainant, in her evidence on the status of Losada Nigeria Limited also said:
“I am the Chairman of Losada Nigeria Limited … Wema Bank, Oyingbo Branch are the bankers of Losada Nigeria Limited … Losada Nigeria Limited did not have money to pay off these workers. The company then resorted to borrowing the sum of N500,000 from Wema Bank, Oyingbo Branch … I personally stood as guarantor for the loan of N500,000 to Losada Nigeria Limited.”

The above evidence of P.W4, P.W.7 and P.W.8 establish the following facts: (1) Losada Nigeria Limited is a company. (2) Alhaja Taibat Adeniji is the Chairman of the company and Tolani Adebisi, a Director. (3) Losada Nigeria Limited is a customer of the Ebute-Metta

Branch of Wema Bank Limited. (4) The Company is indebted to the Wema Bank Limited. (5) Alhaja Taibat Adeniji stood as guarantor for the loan on behalf of Losada Nigeria Limited. (6) As a result of the indebtedness, Wema Bank has a legal mortgage in the property of the Losada Nigeria Limited. (7) Exhibit 16 was entered into between Losada Nigeria Limited and Wema Bank Limited in respect of the sale of the land at Medina Estate for the purposes of liquidating the indebtedness of the company to the bank. It is trite law that an incorporated company is a distinct and separate entity from its members and the law clearly recognises its corporate existence. See Agbonmagbe Bank v. G.B. Olivant (1961) All NLR 116; Tuakli v. N.B.C. (1970) 2 All NLR 147: Chief Fawehinmi v. N.B.A. (No.2) (1989) 2 NWLR (Pt.105) 558: Abakaliki L.G.C. v. Abakaliki R.M.O. (1990) 6 NWLR (pt.155) 182; Yusuff v. J.A. Brothers (1991) 7 NWLR (Pt.201) 39.
In the instant case therefore, the law draws a clear distinction between Losada Nigeria Limited and P.W.8, its chairman. There can be no mixing of the two as the law clearly forbids that.
Although a company has no mouth to talk and

function physically like a natural person, it has the legal capacity to own property and it owns property separate and distinct from those of its members. In the light of the totality of the evidence adduced by the prosecution, it is clear to me that the owner of the alleged money stolen is Losada Nigeria Limited and not AIhaja Taibat Adeniji.

That takes me to the examination of the amount allegedly stolen by the appellant. It is the sum of N720,000.00. A person can only be charged with stealing – what is in existence. Therefore, before a Court of law can convict an accused person for stealing, the prosecution must prove the existence of the thing allegedly stolen. In Mumuni v.The State (1975) 6 S.C. 79, where the prosecution was unable to prove the existence of the money allegedly stolen in count 10, the Supreme Court had no difficulty in discharging and acquitting the appellant. Delivering the judgment of the Court, Irikefe, J.S.C. (as he then was) said at page 125:
“Since it is plain that no one can steal or receive what does not exist, the learned trial Judge had a clear duty to have discharged this appellant.”

Where is the evidence of the

existence of the N72,000.00 allegedly stolen by the appellant? How did the witnesses come by the amount? Who said what? It is clear from the evidence of some of the witnesses that the amount of N72,000.00 was arrived at by a common arithmetical multiplication of 48 plots by what P.W.8 called an average price of N15,000. But was there any unequivocal evidence that the plots allegedly sold by the appellant were 48? Was there also any unequivocal evidence that each plot was sold for N 15,000?

Let me go through part of the available evidence. P.W.8, the complainant in her evidence in-chief said:
“The accused said he had sold 42 or 48 plots … I insisted that the accused should sell at an average price of N15,000 per plot. I know that some plots were sold for N10,000, some for N15,000 and some for N20,000. I gave oral instruction to the accused about this average price of N15,000 per plot … We arrived at N720,000 from the receipts and the number of plots said to have been sold by the accused person. The receipts are with those to whom the accused sold plots of land. They all brought their receipts and I made records of them to knowÂ how much money had

been collected by the accused and not accounted for.”

Under cross-examination, the witness said:
“I do not have the receipts issued by the accused to those who purchased plots of land. It was the accused who sold the plots of land and it was he who issued receipts to them for payments made to him … it is not true that the police found my allegation untrue. They found that the accused realised N720,000 from sale of my plots of land but did not pay it into the clients Account. He paid it into his own account.”

It is obvious from the above that the complainant was not sure of what was the exact number of plots sold. Although she tried to be specific on the number, 48, she attributed that to the document given to her by the appellant at a family meeting in which efforts were made to settle the matter.

What of the sale price of N 15,000? It is clear from the ipso dixit of the witness that not all the plots were sold at that price. The witness said that she insisted that each plot should be sold at an “average” price of N15,000. An average is an arithmetical mean value of any qualities; estimation of such a means; it is a loosely, ordinary or

prevailing value. In general parlance, it also means a common run. In her own words, the plots were sold at between N10,000 and N20,000. She did not tell the Court how many were sold at N10,000; each; how many were sold at N20,000 each. In the absence of such evidence, it is difficult for a Court of law to come to the conclusion that the amount of N720.000 was realised from the sale of the plots.

What was the evidence of P.W.7, the son of P.W.8, the complainant.
“We asked the bank to allow us sell the land by ourselves … At that time we had in mind to sell the land at N15.000 (fifteen thousand naira) per plot. The accused person was given authority to deal with the whole property. I cannot now remember how many plots were there altogether. I do not know how many plots were sold by the accused person. He did not give us any statement of account … It is true that nowhere in Exhibit 16 is the price of one plot of land fixed at N 15,000 … I did not mention the sum of N720,000 in my statement to the police. The accused himself admitted selling 48 plots of land.”

Frankly, I do not see how useful the above evidence is to the prosecution.

Beyond the evidence of the witness that the appellant admitted that he sold the 48 plots, there is no other complimentary evidence on the issue. Rather, there is the evidence of P.W.8 that the appellant told her that he sold 42 or 48 plots. What is the correct figure?

P.W.1, a Police Sergeant, who investigated the case said in his evidence in-chief:
“I carried my investigations to the buyers of parcels of land at Gbagada. During my investigations I collected receipts from some of the buyers who bought land from the accused persons. I found out that the accused person sold 56 plots of land and I was able to collect about 19 receipts from some of the buyers …”

???Under cross-examination, the witness said:
“More than 48 plots of land were sold by the accused person. The complainant made a statement to me. It was during my questions to her that she told me 56 plots were sold by the accused person. She said she had information about only 48 plots at the time she wrote the petition … I did not contact all the buyers of the 56 plots … statements were taken from most of the buyers. It is from their statements that we were able to summarise

the amount collected from the sales and for which the accused is charged … My investigations reveal that not all the plots were sold for N 15,000 per lot. Some were sold for N20,000 while others were sold for less than N15,000.”

While P.W.1 said in evidence that 56 plots were sold by the appellant, P.W.8 said that the plots sold were 48. And when one goes further into the evidence of P.W.1 to the effect that he got the figure 56 from P.W.8, a Court of law will be in some difficulty to rely on the evidence as to the exact number of plots sold. That apart, like P.W.8, P.W.1 did not give evidence as to how many plots were sold for less than N15,000, for N15,000 or for N20,000.

???P.W.2, an Inspector of Police, who also investigated the matter, said in his evidence in-chief:
“I wanted to know the buyers. When we got back to her residence, she gave me a list of buyers. The list contained the number of plots and the buyers’ names. I asked her who compiled the list and the complainant told me that the list was compiled by her lawyer who is the accused person. The list given to me by the complainant was a photocopy. I made efforts to get the original

copy of the list which was said to be in the possession of the accused person but I was unable to get it. From my investigations, about 56 plots of land were involved and there were about 27 buyers.”

P.W.2 confirmed the story of 56 plots told by P.W.1. He even went further to introduce the dimension that the plots were sold to 27 buyers. Beyond that he did not go to the area of the alleged amount of N720,000.00 realised from the sale of the plots.

In the instant case, before the prosecution can prove that the sum of N720,000.00 was realised from the sale of the plots, there must be unequivocal evidence of the number of plots sold and how much each of them was sold. I do not see such evidence.

Where an accused is charged with stealing a specific amount, the prosecution has the burden to prove that the amount alleged was stolen. And for the purpose of establishing a prima facie case, there must be some evidence linking the accused with the specific amount alleged in the charge. Where there is no such evidence, a Court of law is bound to discharge the accused.
In Echemanzu v. The Queen (1959) SCNLR 132, the Federal Supreme Court said

thus:
“The appellant was charged for stealing 195. It is for the prosecution to prove that he stole that amount. Their case throughout was that the appellant stole 195, and not a lesser amount. The Judge seems to have said that because the appellant could not account for an item of 55.1s.6d out of the notional surplus of 168.2s.7d he had stolen the 195. That was clearly a wrong assumption and could not possibly be made on the evidence.”
Where specific sums are allegedly stolen on specific dates, the prosecution must prove that the various sums for which the accused was charged actually got into his hands before he could be properly convicted. See Gbolarumi v. Commissioner of Police (1971) NMLR 69. Where in a stealing charge, the evidence led by the prosecution as to the nature, number and identity of the articles stolen is contradictory, such contradiction ought to result in the rejection of such evidence. See Eze v. State (1992) 7 NWLR (Pt.251) 75. While I concede the point that in all the above cases, decision was reached at the final stage of the proceedings, they apply mutantis mutandis to a no case

submission.

Learned counsel for the respondent cited a number of cases to buttress his argument that an accused could be convicted of stealing a lesser amount without amending the charge. I should pause here to examine the cases. In Eronini v. The Queen (1953) 14 WACA 366, Verity, C.J. observed at page 368:
“In point of fact, the second amendment in this case was immaterial (as indeed was the first) for proof neither of the precise date nor of the precise sum alleged to have been stolen would have been essential to the conviction and we are at a loss to understand why the amendment were sought.”

The real issue which arose for determination in Eronini was the effect of non compliance with Section 164(1) of the Criminal Procedure Act, Cap. 43. As a matter of fact, the case was decided on the adjectival law of amendment of charge and not on a conviction of an accused person for stealing a lesser amount. And what is more, the West African Court of Appeal did not go further to say why the amendment was not necessary in the circumstances of the case. In sum, since the issue in this appeal was not before the West African Court of Appeal for

determination, I take the decision as an obiter dictum.

In Sagoe v. The Queen (1963) 2 SCNLR 210; (1963) 1 All NLR 290 the defendant, a solicitor, collected money on someone’s behalf and spent part of it 3,000 out of 10,000. He was charged for stealing the sum of ??3,000 and was convicted. The Supreme Court held that (1) if a person spends for his own purposes money received by him on behalf of another, he is guilty of stealing. (2) when a person is charged with stealing and the evidence proves that he was guilty of stealing part of the amount of money alleged in the particulars of the charge or count, he may be convicted without amendment of the amount alleged. The Supreme Court relied on R. v. Tyson 11 W.A.C.A.90.

Like in Eronini, the issue was taken obiter. Since the appellant was charged and convicted for the theft of 3,000 and not for a lesser amount, as canvassed by learned counsel for the respondent, Sagoe, in my humble view, is not opposite. Perhaps the point I am making will become clearer when I cite the following passage from the judgment of the Court at page 296:
“We conclude (although without the benefit

or argument on either side) that when a person is charged with stealing (to use the appropriate term in the Criminal Code) and the evidence proves that he was guilty of stealing a part of the amount of money alleged in the particulars of the charge or count, he may be convicted without amendment of the amount alleged. Consequently, without dissenting from Lambo, J, whose finding was that the appellant stole the entire ??3000, we think there is no need to discuss the soundness of his finding as on the most favourable views advanced for the appellant, he was guilty of stealing ??1,500 of that amount, and the conviction can stand.”

Apart from the use of the permissive “may”, the issue did not arise in Sagoe. It is therefore obiter.

Let me also take the case of R. v. Tyson which the Supreme Court followed in Sagoe. Tyson was charged with stealing 12 permits to purchase ammunition Nos. B79834, B79837, B79843, B79873, B79887, B79891, B79893, B79906, B79908, 879921, B79924 and B79931, property of His Majesty the King. The West African Court of Appeal held that it is not necessary that the prosecution should prove all the articles mentioned in the

indictment to have been stolen. It is sufficient if the prisoner is proved to have stolen any of them. The decision cannot be faulted. The Court dealt with a divisible count and so the trial Judge was correct in convicting Tyson of theft of three of the permits.

The West African Court of Appeal made the point clearly at page 92 of its judgment:
“The appellant here is charged with stealing 12 permits. As regards 9 of these permits the Judge is in some doubt and thinks that it is just possible that the lawful owners of the permits had given them to the appellant, but with regard to the other 3 the trial Judge is satisfied that he did in fact steal them and quite correctly in our view returned a special verdict to the effect that the appellant was guilty of stealing 3 only of the 12 permits mentioned in the information.”

As opposed to Tyson, in this case, the charge is indivisible. It represents a single allegation of the theft of a specific amount of money which the law regards as an inseparable and indivisible amount, particularly in the context in which the charge is couched.

In Machent v. The Queen (1970) 2 All E.R. 255, a case also

cited by learned counsel for the respondent, the Queen’s Bench Division dealt with the specific provision of Section 9 of the Theft Act, 1968, a provision which made it possible for the accused to be convicted of some of the articles stolen. In Atano v. Attorney-General of Bendel State (1988) 2 NWLR (Pt.75) 20 1, the Supreme Court, following the English decision of Machent v. The Queen (supra) held that it is unnecessary for the prosecution to prove that all the articles mentioned in the information have been stolen for the charge to be sustained. The charge will be sustained if it is proved that some of the articles have been stolen. As I indicated earlier, Machent was decided on the clear provision of Section 9 of the English Theft Act of 1968, a section which provides for the guilt of a person having entered any building or part of the building and steals “anything in the building or part of It”. In the absence of a similar provision in the Criminal Code one is tempted to come to the conclusion that the decision of Atano was reached per incuriam. I should however not fall into the temptation. And what is more, Atano does not seem to fall in line with the

earlier decisions of the Court on the issue.

I am in very grave difficulty to go along with the submissions of learned counsel for the respondent that proof of a lesser amount is enough to sustain conviction in this case. While that may well be so in a case where the charge or count is divisible. I do not agree that it applies in this case where the charge is indivisible. I do not think that is the proper function of the criminal law in the instant case.
If all the responsibility of the prosecution is simply to prove part of the money stolen in a single unbroken charge, as basis for conviction of an accused, I must say that the prosecution will have the best of two worlds if there are two worlds at all. In my humble view, the concept of criminal jurisprudence and criminality, in the context of apportionment of guilt, is stricter than the way learned counsel has put it. An offence committed is an exact human conduct and a’fortori, stealing a particular amount. Therefore, if an accused is charged with stealing a particular amount or named amount, the prosecution must stand or fall by proving the particular amount or by failing to prove same,

respectively. The legal position is as exact as that. A contrary position will not only be oppressive to the accused but will certainly run against the provision of Section 33(5) of the Constitution of the Federal Republic of Nigeria 1979 where the accused is presumed innocent until he is proved guilty. How can an accused be proved guilty if evidence is not led on the exact amount of money stolen in an indivisible charge such as the one the appellant faced? That will be tantamount to reversing justice and we, in this Court, cannot be a party to such reversion.

Let me take the alleged proof of the sum of N75,000.00 and the evidence of payments made by the appellant. There is evidence that the sum of N40,000 was paid into account No. 6596 by the appellant. P.W.3 in his evidence in-chief said:
“In the first letter it was directed that the sum of N40,000 was to be paid every month from Account No.9116 to Account No.6596 … On one occasion a sum of N40,000 (forty thousand naira) was transferred from Account No. 9116 to Account No.6596 in conformity with the instruction given in the two letters Exhibits 13 and 14 … On 3rd May, 1983, the sum of N40,000

(forty thousand naira) was transferred from Account No.9116 to Account No.6596.”

It is clear from the Record that while Account No. 6596 is Losada Nigeria Limited Account, Account No. 9116 is A.O. Onagoruwa’s Account. P.W.2 under cross-examination said:
“The complainant told me that apart from N40,000 (forty thousand naira) no other money was paid by the accused person into her account in Wema Bank.”

P.W.7, under cross-examination also confirmed the payment of N40,000:
“Only N40,000(forty thousand naira) was paid by the accused person into the client’s account.”

That is not all. The complainant herself (P.W.8), Under cross-examination admitted that the appellant paid the sum of N40,000:
“I checked at Wema Bank and found that the accused paid in only N40,000 out of the proceeds of the sales made by him.”

There was also evidence of payments made to P.W.7, the son of P.W.8, the complainant. Under cross-examination, P.W.8 said:
“Tolani Adebisi is my son. He is a director of all my companies … It is true that Tolani collected money several times from the accused person. Whenever Tolani tells me he wants money I would

telephone the accused and instruct him to release money to him.”

In his evidence in-Chief, P.W.7, confirming the payments made to him by the appellant at different times, said:
“I can identify the cheques made out in my favour out of the plant hiring business account and which I cashed. (Witness identifies Exhibits 4, 4A, 4B, 4C, 4H, 4J and 4K).”

Although P.W.7 claimed to have received the different payments from the appellant from the plant hiring business account, his own mother, P.W.8 said under cross-examination that she appointed two persons for that purpose:
”It is true that I have some persons who have my authority to hire out our plants and machinery and to collect money for such hires. I have two persons for this purpose. They are the machine operator and a clerk.”

But P.W.8 had earlier said in examination in-chief:
“With respect to my other business, I handed over the plant hire business to the accused person to hire out our machinery and to keep the proceeds for my use and for other small expenses by me and my children. The following machines were put in care of the accused person … There was no written agreement

between the accused person and I in regard to those machines put in the accused person’s care for hire.”
Again, under cross-examination, the witness said:
“The accused person put one Alaba Onagoruwa who is his elder brother in charge of the plant hiring business. The accused was not hiring the machines out by himself.”

And so there are quite a number of versions on the issues of plant hire and payments. P.W.8 under cross-examination at page 80 of the Record said that P.W.7 collected money several times from the appellant on her instruction. She did not say that the money so collected was from the plant hiring account. It was P.W.7 who said so. While P.W.8 said under examination in-Chief that she handed over the plant hiring business to the appellant, she told a different story under cross examination and it is that she entrusted the business to the machine operator and a clerk. That is not all.
Again, under cross examination she said that the appellant was not directly responsible for the hiring of the plants, but his elder brother was. What is the correct version?

While the law forbids me at this stage to consider the credibility of

the witnesses, the law allows me to consider whether reliability to be placed on their evidence is not in doubt from the answers given to the cross examination by the defence. From the Record, and in particular in the light of the above evidence, I am of the view that the evidence has been so discredited as a result of cross examination and is also manifestly unreliable that no reasonable tribunal can safely convict the appellant.

At the level of no case submission, a trial Judge is bound to resolve manifest unreliability of evidence of prosecution witnesses in favour of the accused. This is consistent with the presumption of innocence of the accused as provided for in Section 33(5) of the 1979 Constitution. Page 32 of the Record, as it relates to the cheques paid to P.W.7 read:
“(i) Cheque No. OY-H 152774 dated 10th March 1983 – Exhibit 4 for N2,500;
(ii). Cheque No. OY-H 152766 dated 2nd March, 1983 Exhibit 4A for N4,100.00
(iii) Cheque No. OY-H 152756, Exhibit 4B dated 25/1/83 for N2,500.00;
(iv) Cheque No. OY-H 152780 dated 21/3/83 for N1,500.00 -Exhibit4C;
(v) Cheque No. OY-E 158153 dated 28/12/83 – Exhibit 4D; ..

(ix) Cheque No. OY-E 15515 dated 28/12/83 for N2,500 Exhibit 4H;
(x) Cheque No. OY-H 217769 dated 14th October, 1983 for N160 Exhibit4J;
xi) Cheque No.OY-E 199284 dated 26th July, 1983 for N1,370-Exhibit 4K.”

P.W.7 admitted in evidence to have been paid the above cheques. As it is, the Record does not indicate how much was paid on cheque No. OY – E 158153 dated 28th December, 1983. The law is elementary that a Court of Appeal cannot read into a Record what is not there as it cannot read out of a Record what is there. A Court of Appeal is bound by the Record before it and give judgment accordingly. I shall therefore calculate the amount paid to P.W.7 outside cheque No. OY-E 158153. My calculation brings the amount to N14,630.

P.W.8 also admitted under cross examination that Mrs. Egbeyemi collected the sum of N6,000 from the appellant on her instruction:
“It is true that one Mrs. Egbeyemi collected N6,000 from the accused person on my authority for transmission to my daughter in England.”
That is not the end. The admitted payments continue. She also admitted under cross examination that the appellant paid her N2,000 each on four

occasions:
“I was not collecting N2,000 monthly from the accused person. I collected N2,000 only on four occasions from the proceeds of plant hiring done by the accused person. There was an arrangement between the accused and I that the accused would release money to me for my upkeep and my children’s upkeep from the proceeds of the hire of machines.”

There is one final payment made by the appellant and it is in respect of arrears of rent. P.W.S said under examination in-chief:
“I also authorised the accused person to payoff the rents owed by Losada Nigeria Limited on a house rented by that company at Okupe Estate when the company could not pay. The house was occupied by an expatriate, one Mr. Losada, who had since left for his country. The amount owed by Losada at the time was N 14,000 (fourteen thousand naira).”
Although she said in evidence that she asked the appellant to payoff the N14,000 from the proceeds of the plant hiring business, my earlier conclusion on that business as it related to payment does not assist the prosecution.

From my analysis of the different transactions, the following table emerges:-

RECEIPIENT AMOUNT PAID
Account No. 6596 in Wema Bank N40,000
P.W.7 (Tolani Adebisi) N14,630
Mrs. Egbeyemi N6,000
P.W.8 (Taibat Adeniji the complainant) N8,000
Landlord of Okupe Estate N14,000
Total N82,630
This amount could be more, in the light of the omission of what was paid in cheque No. OY-H 158153 of 28th December, 1983.

In the evidence before the learned trial Judge, the appellant received the sum of N75,000 and made payments at different times, as in the above table, amounting to N82,630. Since the amount paid out is more than the amount realised from the sale of the plots, I am bound to ask this question: Why the charge of stealing?

Criminal responsibility and guilt are exact human conducts which the law apportions to an accused person through evidence and evidence alone. They are not subject of moral speculation or suspicion. They are not based on assumptions but on proved facts and nothing more, and nothing less. No criminal law of a civilised legal system ever predicates or premises its crime detection and guilt apportment machinery on mere moral speculation and suspicion. And ours is a civilised

legal system with all its inbuilt mechanism of investigation and apportionment of guilt. An accused person is either criminally responsible for an act or he is not. So also is guilt which results directly from the criminal act. There are no two ways about it.
In this case, we have not reached the stage of guilt, but we are at the stage of establishing a prima facie case. It is not the province of the law to establish a prima facie case on mere suspicion. The word ‘suspicion’, which ordinarily means an act of suspecting, state of being suspected or the imagining of something without evidence or on slender evidence, cannot be basis for criminal responsibility, even at the stage of establishing a prima facie case. There is so much in our case law on the issue. See Abieke v. State
(1975) 9-11 S.C. 97; Babalola and Ors v. The State (1989) 4 NWLR (Pt.115) 264; Anekwe v. State (1976) 9-10 S.C. 255; Nwankwo v. State (1990) 2 NWLR (Pt.134) 627.
The Nigerian polity, more than anyone known to me, is one of suspicions and suspects. It is one society where the slightest aberrant conduct of an individual however mala fide, is construed with all

suspicion and so much malice read into it. Suspicion is the hobby of the average Nigerian. He does not only vegetate on it, he enjoys it particularly if the end result of that suspicion is to damage or destroy the character of another person. Happily, the criminal law clearly outlaws suspicion in the guilt determining process. If it were not to be so, most accused persons could have been convicted of offences they are charged with. Since that is not the position of the law, this Court cannot apply it against the appellant.

Learned counsel for the respondent made so much weather out of a clear cloud on the alleged failure on the part of the appellant to pay all the proceeds of the sale to the client’s account in Wema Bank. There is evidence that apart from the sum of N40,000, no amount was paid into the client’s Account. There is also evidence that payments were made to different persons (including P.W.8) at her own instance.

While breach of the earlier agreement with the Wema Bank cannot be ruled out, it is not my understanding of the law that such a breach ripens into criminality on the part of the appellant. There is no law known to me where a

breach of an agreement between two parties, which has no element of criminality, can result in a criminal charge and subsequent conviction. At best, it can be a breach of a contractual relationship which the criminal law lacks legal capacity or competence to enforce and punish.

I am not even quite sure whether the appellant breached any agreement with Wema Bank. There was none between them and so the issue of breach could not arisen. While one could have found the existence of a moral understanding between P.W.8 and the appellant on payments to the Wema Bank, the subsequent oral instructions on the part of P.W .8. to the appellant – instructions which resulted in the payment of N82,630.00 to different persons – would certainly have made nonsense of such understanding. For the purposes of criminal responsibility, the best evidence, (though not the only evidence) should have been the evidence of the purchasers of the different plots. Excepting the evidence of P.W.6, there was no other evidence of any of the purchasers. And what did P.W.6 say? He said that he paid a total sum of N30,000 to the appellant, (in his own words) made up as follows:
“It

is true that the total amount paid by me so far for the 4 plots of land is N30,000 (thirty thousand naira). It is true that the sum of N 10,000 was for the accused persons professional fees.”

The above evidence does not help the case of the prosecution in the light of the admission by the appellant that the sum of N75,000 was realised from the sale of the plots.

The ‘chorus’ that went through the entire case of the prosecution was that the appellant sold the plots of land to different persons. But these were not called excepting P.W.6. I ask the question: Why were they not called? I also ask the question: Were they not available and if so where are they? I do not want to move to Section 149(d) of the Evidence Act. There is no need for that. The prosecution did not prepare its case properly and so it has collapsed. I do not intend to go into the other ingredients of the offence of stealing. I do not see any such need and so I will go to the next stage of the appeal.

That takes me to the second issue and it is the delivery of the ruling after three months. Section 258(1) of the Constitution of the Federal Republic of Nigeria 1979 provides as

follows:
“Every Court established under this Constitution shall deliver its decision in writing not later than three months after the conclusion of evidence and final addresses, and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of the delivery thereof.”
The first point I should consider is whether a ruling on a no case submission comes within the above provision. Learned counsel for the appellant submitted that a ruling on a no case of submission is a decision within the subsection. He cited the case Onagoruwa v. State (1992) 5 NWLR (Pt.244) 713 at 729, a decision of this Court, in support of his submission. Learned counsel for the respondent submitted that Section 258(1) does not apply to a ruling on a no case submission. To counsel, the pronouncement of this Court on Onagoruwa was merely an obiter dictum which does not bind the Court.

I will deal with the matter from two angles. First, I will examine whether the subsection covers a ruling on a no case submission and second whether the decision of this Court on Onagoruwa was merely an obiter dictum which does not bind this Court.

Both this Court and the Supreme Court have dealt with the first aspect. In Mohammed v. OIawunmi (1990) 2 NWLR (Pt.133) 458, the Supreme Court, held obiter that the definition of decision under Section 277(1) of the 1979 Constitution does not anticipate a situation where every decision in the process of a criminal trial is appealed against. It is only when there is determination resulting in a conviction (or not) that an appellant can appeal against the conviction and or sentence.
The Court of Appeal, in its Lagos Division (that is to say in this Division) held in Nwosu and Anor v. The State (1990) 7 NWLR (Pt.162) 322 that a ruling on a no case submission, though a determination is not one that is appealable as it is not a determination that includes judgment, decree, order, conviction, sentence or recommendation. Awogu, J.C.A. in the leading judgment of the Court said at page 334:
“There can be no doubt that a no-case ruling is a ‘determination’; that it is however, not a determination that includes judgment, decree, order, conviction, sentence or recommendation. The reason for this is that under Section 287, such a submission, if over-ruled,

gives the accused three choices, one of which is to participate no further in the proceeding. In such a case, the trial Judge then proceeds to take addresses once again and must review the facts once again in order to arrive at a final determination on whether to acquit or to convict. This being so, an appeal against the over-ruling of a no-case submission would, if successful, mean that the Court of Appeal would determine the innocence of the accused before the trial Judge has had the chance to do so.”
In coming to his decision, Awogu, J.C.A. relied on the obiter dictum of the Supreme Court in Olawunmi.
Ademola, J.C.A. in his concurring ruling, said at page 335:
“A decision on a ‘no case’ submission is yet an inchoate decision and cannot be regarded as final. After it, the proceedings may still go on as to reach the final decision. Until that stage is reached, it would be premature for a Court of Appeal to entertain an appeal on it.”
“Babalakin, J.C.A. (as he then was) also said at pages 335 and 336 in his concurring ruling:
“In my view although a ‘no case’ submission is a decision, yet it is a decision without a determination of

issues involved. This is because further alternatives are open to a party whose ‘no case submission is over ruled. Until he or she exercised any of those options and the Court arrived at a determination on that score it would appear premature for an appellate Court to entertain an appeal on a bare ‘no case’ submission as such a step by the appellate Court would amount to taking a decision on a matter without all relevant facts connected therewith before it.”

I have taken the time and the trouble to quote the inpsissima verba of the learned Justices at some length not only because of the important nature of the subject but also to record the different positions held by the Courts in the matter.

Nwosu was decided on 4th October, 1990 in Lagos. Fourteen days earlier, and precisely on 20th September, 1990, the lbadan Division of this Court gave a decision, though obiter, which was contrary to Nwosu. That was in the case of Owonikoko v. The State (1990) 7 NWLR (Pt. 162) 381, where Akanbi, JCA. (as he then was) observed at pages 388 and 389:
“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 or 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 premise on which a ruling on a no case submission may be challenged or attacked.”
Although the above is equally relevant and important on the elucidation of the principle of law of when a trial Judge can uphold a no case submission, I have cited it only as it relates to the position of the law that a no case submission is appealable.
In the more recent case of Onagoruwa v. State (1992) 5 NWLR (Pt.244) 713, (this particular case on a different aspect) the Lagos Division of the Court of Appeal (which is this Division), (Coram, Ubaezonu, Sulu-Gambari and Kalgo, J J.C.A.), took time to examine the different

decisions in some admirable detail and held that a ruling on a no case submission is a decision within the meaning of Section 277(1) of the 1979 Constitution and therefore appealable within Section 220( 1) of the same Constitution. Ubaezonu, J.C.A. in the leading ruling, said at page 729:
“I may ask – suppose a High Court fails to deliver its ‘ruling’ on a no case submission within a period of 3 months as prescribed by Subsection 5 of S.258 of the Constitution (as amended)? Certainly a failure by any Court established under the Constitution to read its ruling within the prescribed period of 3 months contraveness S.258 of the Constitution and therefore exposes the Court to the sanction prescribed by the Constitution.”
It is the above pronouncement that learned counsel for the respondent said was obiter and urged us to so regard it. An obiter dictum is what the Judge says by the way, that is, it is a statement the Judge makes in the course of the decision or judgment.
It is in most cases a mere casual and passing expression of the Judge. It is mostly a statement of an illustrative nature or based on hypothetical facts. It could be an observation

made by the Judge on issues which do not fall for determination, considering the live issues before the Court, either of first instance or of appeal. Obiter dictum at times lends some romance and relaxation to the law and Judges resort to it in relevant instances.
Let the Judges be allowed to express their minds in such instances. Such pronouncement at times embellish the law and that is good. Let them not be castigated in such instances. Without going into any details, learned counsel for the respondent was not quite fair to us in the way he attacked us in the respondent’s brief. I believe that he can afford to be more polite in his language. I have always known him to be a good counsel. Let remain so. As opposed to general impression, it is not every obiter dictum that exposes the Judge as talkative or exploring areas which are not before him. While too much obiter dictum, like too much of everything, is bad, a Judge should not always receive the axe of the profession or counsel when he makes a pronouncement, obiter. And this is more so, when it is good law that an obiter dictum of a superior Court, particularly the Supreme Court, can with time, ripen

into a ratio dedidendi. There is yet another aspect of the matter as it relates to the critiques of Judges on what they always regard as obiter dictum. Most critiques do not appreciate the difference between obiter dictum and judicial dictum. While obiter dictum is the irrelevant statement made by the Judge in the case, judicial dictum is that relevant statement made by the Judge to some collateral matter but not forming part of the ratio. While I concede the point that the distinction is not a popular and easy one to make, it nevertheless exists. It is my view that judicial dictum would carry more weight than obiter dictum as it is midway between obiter dictum and ratio decidendi.

Did what my learned brother say amount to obiter dictum? The issue before the Court was whether a ruling on a no case submission is appealable. Since the pronouncement related to ground 5 in this alternative appeal, the issue was not available at the stage of the ruling. To that extent, and using the everyday expression, what he said was obiter. But I will feel more comfortable to call it judicial dictum. From the way the matter was argued before the Court, I should have had

equal temptation to go the way my learned brother did. In whatever way one looks at the matter, I succumb to the submission of learned counsel for the respondent that this Court cannot be bound by that aspect of the ruling of the Court. I shall therefore come to my independent judgment.

And that now leads me to the analysis of the legal position. Section 277(1) of the 1979 Constitution defines a decision as follows:
“decision means in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.”
Is a ruling on a no case submission a decision within the meaning of Section 277(1) of the Constitution? It is. A ruling is a determination of a Court of law. A ruling is also an order of a Court of law. A ruling therefore qualifies as a decision within the meaning of Section 277(1) of the Constitution. Is a ruling on a no case submission also a decision within the meaning of Section 258(1) of the Constitution? It is. For purposes of construing the word ‘decision’ in Section 258(1), a Court of law must fall back on the interpretation clause in Section 277(1) of the Constitution. It is

trite law that where a statute has defined a particular word, a Court of law is bound to use the particular definition. It has no business to go outside the definition in search for other meanings. I am therefore of the view that the definition of the word in Section 277(1) vindicates the same word in Section 258(1). In Chief Fawehinmi v. The State (1990) 1 NWLR (Pt. 127) 474.
Babalakin, J.C.A. (as he then was) while construing Section 258 of the Constitution, said:
“I am of the firm view that decision herein includes rulings of the Court on a particular issue.”

???The contention of learned counsel for the respondent is that since at the stage of no case submission, evidence cannot be said to have been concluded and no final addresses by counsel, a ruling thereon cannot be said to be a decision. I had earlier reproduced the full submission of counsel on the issue, submission which is based on previous decisions. I must say that the submission of learned counsel is not only logical but is both attractive and consistent with the bare language used in Section 258(1) of the Constitution. The word ‘final’ means last, decisive, conclusive. It also

connotes the end of a thing. The word ‘conclusion’ means the act of concluding; the end, close or last part. The expression ‘last’ is a common denominator in both expressions and here I mean the expressions ‘final’ and ‘conclusion’. Therefore on the bare face of the expressions, the subsection can be construed to mean that a Court of law shall deliver its decision in writing not later than three months after it has heard that last evidence of the witnesses and the last addresses of counsel or the parties.

The subsection so barely construed may not cover a ruling on a no case submission, but was that the real intention of the Constitution makers? To be more specific, was that the real intention of the Sub-Committee on Judicial System headed by Alhaji Nuhu Bamalli and the 1978/79 Constituent Assembly which produced the Draft Constitution that resulted in the promulgation of the 1979 Constitution?

Mere technical rules of interpretation of statutes are to some extent inadmissible in the interpretation of the Constitution to defeat the principles of government entrenched therein. And where the question is whether the Constitution has used an expression in

the wider or in the narrower sense, a Court of law, should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution. The approach of the Courts to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magin valent quam pereat. It is not the duty of the Courts to defeat the obvious ends of the Constitution in the guise of interpretation. See Rabiu v. State (1981) 2 NCLR 293 at 326.
It has been accepted by all the Courts of the land, including this Court, that a broad and liberal spirit should prevail in interpreting the provisions of our Constitution, although in the process, we must constantly bear in mind the objects which such provisions were intended to serve. It is also important that the provisions of the Constitution ought to be interpreted as a whole, that is, related sections ought to be interpreted together. In construing the

Constitution, Courts of law should not give due regard to mere technical rules of interpretation, if these will frustrate the real intention of the framers of the Constitution. See Bronik Motors v. Wema Bank (1983) 1 SCNLR 296.
It is legitimate to look back at the history of the process which brought the Constitution or a particular provision or section into being. A Court of law is not to be oblivious of the history behind the law or section interpreted.

With the above random rules of interpretation of the Constitution, I return to the earlier questions. I posed on the making of the 1979 Constitution. One of the terms of Reference of the Alhaji Nuhu Bamalli’s Sub-Committee was:
“1. To examine the existing judicial systems in Nigeria and recommend …
(d) expeditious and inexpensive accessibility of all Courts of law to all persons …

In performing its functions, the Sub-Committee reviewed the existing ‘structure of judicial administration in the Federal Republic of Nigeria before proceeding to make the recommendations.” One of which resulted in the provision of Section 258(1). What is the history of Section 258(1)? The provision of

Section 258(1) or its equivalent was not in the 1960 or 1963 Constitution. It came into the history of Constitution making for the first time in the 1979 Constitution. Before the 1979 Constitution, appellate Judge of this country merely frowned upon inordinate delay in the delivery of judgments and remitted cases for re-trial in appropriate circumstances. In the absence of a definite provision in the 1963 Constitution, appellate Judges used the vague criterion of “reasonable time” within which to deliver a judgment. SeeAkpor and Ors v. Iguoriguo and Ors (1978) 2 S.C. 115; Awobiyi and Sons v. Igbalaiye Brothers (1965) 1 All NLR 163.

The Sub-Committee in compliance with one of its Terms of Reference, saw the need to provide for a specific period within which a decision must be delivered. Let me pose a question. If at the time Alhaji Nuhu Bamalli and the five other members of the Committee were considering the provision, a busybody around asked the question whether a ruling on a no case submission comes within the provision, what should have been the answer?

I say so for a number of reasons. A no case submission and a ruling on it, is part of

the judicial process. It is part of the administration of criminal justice. Since one of the Terms of Reference of the Sub-Committee was to recommend “expeditious accessibility to all Courts of law, it could not have left out rulings on a no case submission. Learned counsel for the respondent merely dealt with the situation where a no case submission is refused or rejected by a trial Judge. He did not consider the reverse situation where it is upheld. Of course, he is not alone in advancing this line of argument. Part of the case law supports him.

But why should the argument be one sided? Does the argument anticipate a situation where a no case submission must invariably be overruled? That will be wrong. There are always two sides to the matter, like the two sides of a coin. A no case submission could either be overruled or upheld. Where then lies the argument of learned counsel for the respondent, if a no case submission is upheld and a trial Judge invokes the provision of Section 286 of the Criminal Procedure Law of Lagos State? At that stage, the accused is discharged and on the authority of Ibeziako v. Commissioner of Police (1963) 1 SCNLR 99; (1963)

I All NLR 61 and the group of cases, such a discharge is equivalent to an acquittal of the accused. The matter comes to an end and to the good of the accused person.

I return once again to the Terms of Reference of the Sub-Committee. I want to call attention to the expression “all persons”. One of the functions of the sub committee was to recommend expeditious and inexpensive accessibility to all Courts of law to all persons. The expression, all persons, in my view, includes an accused person making a no case submission, and therefore the appellant. If I am correct, and I do not see any reason why I am not, then an interpretation that excludes, an accused person who makes a no case submission, from the ambit of Section 258(1) of the Constitution, clearly denies an accused person his right of being heard by an appellate Court expeditiously and in some way inexpensively. There could be the possibility of paying more for the appeal after the final determination of the matter. Considering the competing market forces, this is not an impossibility.

What is the effect of excluding a ruling on a no case submission from the ambit of Section 258(1) of the

Constitution? The effect is that a trial Judge can decide to deliver his ruling anytime it pleases him to do so. And that could be 6 months, 12 months, 24 months or more? Can this be the real intention of the makers of the Constitution? It cannot be. That will be relapsing into the pre 1979 position, which will certainly make nonsense of the intention of the makers of the Constitution. In sum, it is my view that it is the intendment of Section 258(1) to include a ruling on a no case submission.

That takes me to the submission of Chief Fawehinmi on the delivery of the ruling after the statutory three months periods. Before I go into the law, let me take the factual situation. On 29th November, 1989, the prosecution called its last witness. On 9th March, 1990, counsel concluded address on the no case submission. Ruling was reserved till 25th April, 1990. The matter was again adjourned to 24th May, 1990, as the trial Judge was on vacation. On 24th May, 1990 the matter was again adjourned to 6th June, 1990 as the Court did not sit that day. Came 6th June and the ruling was ready but the appellant was absent. The following dialogue is recorded in the

proceedings:
“Mr. Oyetibo: I apologise for the absence of the accused person. He was arrested by the state security service on Monday 4th June, 1990 and he has not yet been released. We had thought he would be released yesterday. The accused is willing to be here but the stated circumstance has prevented him. I am aware that a ruling on the no case submission is to be delivered this morning. In the present predicament I doubt if the ruling ought to be delivered.
Mr. Authur- Warrey: I am not aware of the detention of the accused person, aside from what information one gleans from newspapers …. on the other hand, I would not ask for bench warrant against the accused person and I would not oppose an adjournment.
Court: Since the accused person is absent, ruling will be and is hereby further reserved till 21st June, 1990. Reproduction warrant is ordered to issue on SSS for the accused’s production before this Court on the next adjourned date.” .

The above were the circumstances which led to the delivery of the ruling on 21st June, 1990. In view of the fact that addresses on the no case submission were concluded on 9th March, 1990,

the ruling was delivered some twelve days after the statutory period.

Considering the rigidity of Section 258(1) of the 1979 Constitution and probably as expounded by the Supreme Court in the case of Ifezue v. Mbadugha (1984) 1 SCNLR 427, particularly in the dissenting opinion of Bello, J.S.C. (as he was then), Decree No. 17 of 1985 made amendments to Section 258, one of which became Section 258(4). It reads: ‘The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of this section unless the Court exercising jurisdiction by way of appeal from or reviewing of that decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof.”
By the amendment. the very rigid and tight provision of Section 258(1) has been softened or ameliorated. The word “shall” in the subsection no more carried its mandatory or premptory meaning. A particular circumstance may warrant a Court of law construing the word permissively, thus vindicating the dissenting opinion of Bello, J.S.C. (as he then was) in Ifezue, where he said at page

103:
“As I have pointed out earlier on the ordinary meaning of the word ‘shall’ is mandatory and consequently the subsection may be construed prima facie mandatory under the circumstances, the word ‘shall” may also be construed as directory, Hence the subsection may also be construed as directory.”
I will still return to Bello, J.S.C. (as he then was) on Ifezue but let me still continue with the construction of the most welcome amendment.
By the subsection, this Court will not set aside or treat as nullity a decision of a Court below if it is satisfied that failure to deliver the decision has not caused a miscarriage of justice to the party complaining of the noncompliance.

Miscarriage of justice means failure on the part of the Court to do justice. It is justice misplaced, misappreciated or misappropriated. It is an ill conduct on the part of the Court, which amounts to injustice.
By our adversary system of adjudication, the burden is on the party alleging miscarriage of justice to prove in what circumstances he suffered injustice. And in the context of this appeal, that burden is on the appellant. Has he discharged the burden? Chief

Fawehinmi, in his effort to convince us that there was a miscarriage of justice, cited four cases to us. He helpfully referred us to see whether a case of miscarriage of justice has been made by the appellant.
In Mora v. Nwalusi (1962)1 All NLR 681 at 687; (1962)2 SCNLR 73, the privy council adopted the definition of “miscarriage of justice by Lord Thankerton in Dev; v. Roy (1946) A.C. 508:
“Miscarriage of justice means such a departure from the rules which permeate all procedure as to make that which happened not in the proper sense of the word judicial procedure at all. ….

Can what happened in the trial Court be said or described as not, in the proper sense, “a judicial procedure at all”? Was the procedure not justified in the circumstances of the case? And if it was justified in law, can such a procedure be correctly described as not in the proper sense a judicial procedure? Section 100 of the Criminal Procedure Law of Lagos State provides for instances when Court can dispense with the personal attendance of an accused. The instances are clearly enumerated in Section 100(1), They do not cover the situation in the instant case. The

section is not sacrosanct or open ended. By Section 100(2), a Court of law may in his discretion, at any subsequent stage of the proceedings, direct the personal attendance of the accused, and if necessary, enforce such attendance by means of the issue of a warrant to apprehend the accused and bring him before the Court. In the instant case, the learned trial Judge did just that, when he was informed by counsel that the appellant was arrested by the state security service. Let me reproduce the relevant portion of the 6th June, 1990 order of the learned trial Judge, even at the expense of prolixity:
“Reproduction warrant is ordered to issue on the SSS for the accused’s production before this Court on the next adjourned date.”

In the circumstances, I am of the view that the principle adopted in the above case does not apply.

In Adekunle v. Adegboye (1992) 2 NWLR (Pt.223)305, Ogundere, J.C.A. quoted the decision of the privy council in Mora v. Nwalusi (supra) thus:
“Miscarriage of justice means such a departure from the rules which permeate all procedure as to make that which happened not in the proper sense of the word judicial procedure at

all… the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be correct the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding is such a question of law.”

There are two limbs. I have dealt with the first limb and so I will not repeat myself. I will take the second limb, which is in two parts, what is the erroneous proposition of law by the learned trial judge in the instant case? An erroneous proposition of law as the expression implies, contains an error of law. I do not see any. Learned counsel for the appellant did not call our attention to any, beyond the ruling. I will deal with the aspect relating to the ruling when I take the case of Osuolale v. The State (1991)8 NWLR (Pt.212)770. The second part deals with neglect of some principle of law or procedure. Again, I had dealt with this aspect earlier.

In Sanusi v. Ameyogun (1992)4 NWLR (Pt.237)527, Olatawura, J.S.C. adopted the definition of “miscarriage of

justice” in Black’s Law Dictionary, (5th ed.) as follows: ‘
“Decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial right of party.”
I ask, what is prejudicial or inconsistent with the substantial right of the appellant, arising directly from the delivery of the ruling twelve days beyond the statutory period. I do not see any.
I should finally take Osuolale v. The State (supra) also cited by learned counsel for the appellant to make myself clearer on this aspect. In this case, Awogu, J.C.A. said at pages 777 and 778:
“There is a miscarriage of justice not only when a Court comes to the conclusion that a conviction was wrong but also when it is of opinion that the error or omission in the Court below may reasonably be considered to have brought about the conviction.”

And here we are. This is where Chief Fawehinmi urged us to look at the ruling itself to see the miscarriage of justice. I have in obedience to learned counsel looked once again at the ruling and I am of the firm view that it was wrong. I also agree with learned counsel that there was therefore a miscarriage of justice, in so far

as the appellant was asked to open his defence when in law, prima facie case was not made against him.

But that is quite different from the issue of miscarriage of justice arising directly from non-compliance with Section 258(1). We should not mix both. The direct issue is whether the appellant suffered a miscarriage of justice as a result of the delivery of the ruling twelve days after the statutory periods. In the context of Osuolale, the error or omission of the learned trial Judge in this matter was calling upon the appellant to open his defence? Was the delivery of the ruling twelve days after the statutory period responsible for the findings of the learned trial Judge? This to me is the crux of the matter and the core of the decision in Osuolale. Could the trial Judge have not asked the appellant to open his defence if the ruling was delivered within the statutory period in Section 258(1)?

With respect, I do not agree with the submission of learned counsel, which, in his characteristic forthrightness, he proferred very powerfully and brilliantly. He is not right. I agree entirely with Mr. Onyeike, learned legal officer, Ministry of Justice,

Lagos State that the delay in delivering the ruling did not occasion any miscarriage of justice. In my humble view, a miscarriage of justice under Section 258(1) must be tangible and clear on the face of the proceedings and not intangible and apparent. The complainant must suffer some injury and the injury must be clearly traceable to the failure on the part of the trial Judge to deliver the decision within the statutory period. A speculative or conjectural suffering of miscarriage of justice not borne out from the evidence before the trial Judge cannot be legal basis for setting aside or nullifying a decision under Section 258(1) of the Constitution.
The amendment of Section 258(4) is designed to take care of unforeseen and contingent situations. It is to assist a Judge who for certain reasons, either arising from health, domestic or official, is unable to deliver a decision within the statutory period. The subsection, in its liberal wordings needs a liberal interpretation. Unless in obvious cases of miscarriage of justice, an appellate Court should not invoke the provisions of Section 258(1). I say this because the subsection is retrogressive both in

nature and in content as it substantially adds to the existing trend of protraction of justice in our judicial system. But for the saving and palliative provision of Section 258(4), a strict application of Section 258(1) should have dragged the administration of justice some reasonable kilometres backward, and that should have been bad both for the Courts and the litigants.
The pronouncement of Bello, J.S.C. (as he then was) on Section 258(1) in Ifezue before the inception of Section 258(4) throws so much light on the rationale for the amendment. I will quote him in extenso because of its direct relevance. He said at pages 105 and 106:
“As regards the first limb of the subsection, I do not think its being construed mandatory would be a deterrent to its breach by Judges. I do not think a conscientious and responsible Judge will disregard the oath of his office to which he swore and without cause, deliberately commit a breach of the subsection. Situations, however, occur after he has reserved judgment in a case and such as illness or unexpected event beyond his control or mere error in the calculation of the 3 months period which will cause

the Judge to commit the breach. If the subsection is mandatory, then the case may be tried de novo even if the Judge would be out of time by one day. The consequences to the parties and their witnesses, extra costs of litigation, in the case of criminal cases, the additional anxiety caused to the accused and the public expenditure to be incurred are very grave … on the other hand, to construe the subsection directory will be panacea for all malaise and ills of its mandatory meaning. These are the reasons that induce one to put directory meaning to the subsection. Accordingly, I hold that the judgment of the Court of Appeal delivered in breach of the first limb of Section 258(1) of the Constitution is valid.”
A Court of Appeal in construing Section 258 of the 1979 Constitution as amended, should take into serious consideration the above views of Bello, J.S.C. (as he then was). Though the views are not binding on this Court, (being expressed in a dissenting opinion they seem to be the basis of the amendment in Section 258(4) of the Constitution.

In the instant case, counsel for the appellant sought for an adjournment on the ground that his

client was not present in Court. The learned trial Judge granted the application. And he was right in granting it. It is now the same appellant who turns around to use the adjournment that was granted at his own instance, in his favour. Can he? While I am very much aware of the general position of the law that a party cannot contract out a constitutional right, or waive same, that is not the position here.

I think I have dealt sufficiently with the two issues in the appeal. I want to say by way of recapitulation that it is an elementary but most vital requirement of our adjectival law that before the prosecution takes the decision to prosecute, which is a forerunner or precursor to the charge decision, it must have at its disposal all the evidence to support the charge. In a good number of cases, the Police in this country rush to Court on what they generally refer to as a holding charge, ever before they conduct investigations, although there is nothing known in law as a “holding charge”. Happily, that was not the situation in this matter, where the investigation does not succeed in assembling the relevant evidence to prosecute the accused to secure

conviction, the best discretion is to abandon the matter and throw in the towel. That to me is a commendable decision of courage and it is the best decision. On no account should the prosecution go out of its way in search for evidence to prosecute when it is not there. When it degenerates to such a situation of ‘hunting down’, the prosecution is no more regarded as the prosecutor but as a persecutor. And that is not consistent with the philosophy of our adversary system of adjudication.

The criminal law of this country and indeed of any country, is predicated on the commission of an offence. It is not predicated on some assumption or speculation that an offence has been committed. While such assumption or speculation of commission of an offence may be useful in some other areas of human activity, it is not good enough for a Court of law in adjudicating on guilt. In determining guilt, the interest of the Court, and the only interest for that matter, is whether the prosecution has proved the legal ingredients of the offence. And in the context of this case, whether a prima facie case has been made out against the accused to warrant his defence.

A Legal

Practitioner qua advocate is a professional who happily belongs to a profession of very long standing and reputation. And as a professional, the law bestows on him certain privileges and immunities in the performance of his duties. The privileges and immunities are not bestowed on him for his personal edification or aggrandisement but in the overall “interest of the administration of justice in which the accused is the main figure and therefore the main “beneficiary.’ Therefore, before a Legal Practitioner is made to face a criminal charge, the police and the office of the Director of Public Prosecutions, as the case may be, should make sure that he has moved beyond the ordinary course of the performance of his professional duties and committed an offence known to law.
Where the conduct of a Legal Practitioner borders essentially on professional ethics with no criminal flavour. I think the police and the office of the Director of Public Prosecutions should allow the appropriate professional body handle the matter in the best traditional methods. I am not in anyway saying that such is the situation here. I cannot say so because there is no evidence before

100

me to say so.
The point I am struggling to make is that it is not every aberrant conduct of the legal Practitioner that should attract criminal prosecution in a Court of law. There should be some deliberate effort in the prosecution decision to carefully remove the chaff from the grain and see whether there is enough in the grain to deserve and sustain criminal prosecution. I do not want to be understood as saying that the criminal law of the land should succumb to the professional ethics of our profession. Far from it. That cannot be the position. All I am saying is that in order to give the Nigerian Legal Practitioner a freer hand to perform his duties, he should not be constantly reminded or intimidated that the slightest slip, however mala fide, must be policed by the criminal law of the land and must at the end of the day attract criminal sanction. No Legal Practitioner will feel free in the performance of his professional duties in such circumstances. Let that day not come in the history of the administration of justice in this country.

With the above statement of a ministerial or extra judicial nature. I now return to give my verdict. The

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order of the learned trial Judge is contained in the last four sentences of his ruling. He said, and I quote him:
“I am satisfied that there is enough evidence before the Court linking the accused person with the charged. I think it is necessary that he should be called upon for his explanation. It is therefore my ruling that the evidence adduced by the prosecution has established a prima facie case for the accused person to answer. I rule accordingly.”

With the greatest respect to the learned trial Judge, I think differently. The prosecution has not been able to establish a prima facie case against the appellant for him to be called to open his defence. I have said so in many words. That being the legal position, I have no alternative than to invoke the provision of Section 286 of the Criminal Procedure Law, Cap.32 Law of Laws of Lagos State. And that means that the appellant must be discharged and he is hereby discharged of the charge of stealing the sum of N720,000, property of Alhaja Taibat Adeniji, ‘Chairman’ of Losada Nigeria Limited. And such a discharge is equivalent to an acquittal and a dismissal of the complaint on the merits. See

102

Adeyemi v. The State (1991)6 NWLR (Pt.195) 1.

Accordingly, the appellant is hereby acquitted and the charge preferred against him dismissed on the merits.

Other Citations: (1993)LCN/0151(CA)

Olu Onagoruwa V. The State (1993) LLJR-CA

Olu Onagoruwa V. The State (1993)

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