Sunday Chijioke Agbo & Ors V. State (2013)
LAWGLOBAL HUB Lead Judgment Report
JOHN AFOLABI FABIYI, J.S.C
This is an appeal against the judgment of the Court of Appeal; Enugu Division (the court below) delivered on the 24th February, 2010. Therein, the court below dismissed the appeal of the appellants against the decision of the High Court of Ebonyi State, “holden at Abakaliki (the trial court) delivered on 11th April, 2008 wherein the no case submission made on behalf of the appellants, was overruled.
The appellants were charged before the trial court for the murder of Ifeanyi Nnaji. The prosecution called five witnesses and closed its case. A no case submission was made on their behalf by their counsel. Same was overruled by the trial court. The appellants lodged an appeal at the court below which was dismissed on 24th February, 2010.
The appellants felt unhappy with the stance posed by the court below and have further appealed to this court.
It is apt to assemble briefly the case of the prosecution. The evidence adduced by the witnesses points to the direction that on 23rd August, 2001, the deceased, Ifeanyi Nnaji and three others while in a Toyota car driven by one Chibueze Idah, had skirmish with Mobile police officers on special duties at the border between Enugu State and Ebonyi State. In the ensuing melee, the driver of the car, Chibueze Idah was shot dead while the three others, including Ifeanyi Nnaji sustained injuries on their legs.
The three wounded persons were taken to the Police Headquarters, Abakaliki. Thereat, Ifeanyi Nnaji who had injuries on his leg had discussions with those around including the P.w.1 Gabriel Idah and expressed that he was well. Subsequently at the police Headquarters, Abakaliki, Ifeanyi Nnaji and the two other wounded persons were put inside a pick-up van and taken away by the appellants who were then attached to the Surveillance Squad, Police Headquarters, Abakaliki. The next day the dead body of Ifeanyi Nnaji was found at the Federal Medical Centre Mortuary, Abakaliki and was later certified to have died from gunshot at his skull which led to brain tissue damage. At the close of the case for the prosecution, the appellants, instead of entering their defence, elected to make a no case submission. Learned counsel for the defence maintained that they were not relying on the said no case submission. In the considered ruling handed out on 11th April, 2008, the learned trial judge Ogbu, J. overruled the no case submission and called on the appellants to open their defence.
The appellants felt unhappy and appealed to the court below which dismissed the appeal. This is a further appeal to this court.
On 31st January, 2013 when the appeal was heard, learned counsel on each side of the divide adopted and relied on the brief of argument duly filed on behalf of his client. Learned counsel for the appellants urged that the appeal be allowed while the learned counsel for the respondent urged that the appeal be dismissed.
The two issues crafted on behalf of the appellants for a proper determination of the appeal read as follows:-
“3.1.1 Whether, on the evidence on record, the learned Justices of the Court of Appeal were right to have applied and/or relied on the principle of doctrine of ‘last seen’ to hold that there was prima facie case against the appellants (Distilled from Grounds 1 and 3).
3.1.2 Whether the learned Justices of the Court below were right in dismissing the appeal of the appellants and holding that there is prima facie case against the appellants for the murder of Ifeanyi Nnaji when the prosecution failed to prove the essential elements of the offence of murder, or when the evidence of the prosecution witnesses is so manifestly unreliable such that no reasonable tribunal could safely convict on it. (Distilled from Ground 2).”
To balance the equation, so to speak, two issues were also decoded on behalf of the respondent for a proper consideration and determination of the appeal. They read as follows:-
“3.1 Whether the Court of Appeal was right in dismissing the ‘No case submission’ in respect of the charge against the appellants.
3.2 Whether the prosecution proved the essential elements of the offence of murder against the appellants and / or whether the evidence of the prosecution witnesses is infested with contradictions.”
Arguing issue 3.1.1, learned counsel for the appellants submitted that the court below was wrong when it applied the ‘Last seen’ doctrine. He cited the cases of Nwaeze v. The State (1996) 2 NWLR (Pt. 428) 1 and Peter Igho v. The State (1978) SC 87. Learned counsel submitted that the doctrine of ‘Last seen’ would not apply in all cases, situation and circumstances. He felt that the doctrine would not apply where there is no evidence or credible evidence to show that the accused was indeed, the last person seen with the deceased alive, or where the cause of death of the deceased was made clear in the evidence before the court.
Learned counsel submitted that there is no evidence or credible evidence on record to show that the appellants were indeed the last persons seen alive with the deceased-Ifeanyi Nnaji. He asserted that the cause of death of the deceased was made clear before the court. He maintained that the evidence of P.W.3, the deceased’s father who said he saw his son, Ifeanyi Nnaji in a vehicle and was calling him ‘pa-pa-pa’ while being carried away along with others by the appellants should not be believed. He maintained that P.W.3’s statement to the Police in Exhibit ‘E’ contradicted his testimony on oath. Learned counsel maintained that it was wrong for the court below to hold that there is a prima facie case against the appellants.
Learned counsel further observed that Sgt. Livinus Ezeka maintained in Exhibit ‘G’, record in the stalled trial before Ogbuinya, J. that ‘the three wounded occupants of the Toyota car, with bullet wounds, including Ifeanyi Nnaji were brought to the Police Headquarters, Abakaliki dead.’ He asserted that Sgt. Livinus Ezeka clearly stated the cause of deceased’s death and as such, the doctrine of last seen is irrelevant and inapplicable to the facts of the case.
With respect to issue 3.2.1, learned counsel submitted that the elements of the offence charged were not established. He cited the cases of Tegwonor v. The State (2008) 1 NWLR (Pt. 1069) 630 at 65; and The State v. John Ogbubunjo & Anr. (2001) 2 NWLR (Pt. 698) 576.
Learned counsel maintained that there is no evidence that the body, the subject matter of Exhibits C and D tendered by P.W.2 is indeed the body of Ifeanyi Nnaji as no one identified the body to P.W.2 as that of the deceased; the body having already been labelled before he performed the autopsy. He cited the case of Enewoh v. The State (1994) 4 NWLR (Pt. 145) 469 at 478.
Learned counsel further observed that the cause of death of the deceased was not clearly identified. He cited Lori v. The State (1980) 8-11 SC 81 at 95-96 and, Ben v. The State (2006) 16 NWLR (Pt. 1006) 582 at 594.
Learned counsel submitted that for a charge of murder to be sustained, the prosecution must prove that it was the accused that caused the death of the deceased. He cited Lori v. The State (supra); Udosen v. The State (2007) 4 NWLR (Pt. 1023) 125 at 146-147. He submitted that there is no evidence on record that it was the appellants who caused the death of Ifeanyi Nnaji. Learned counsel asserted that the Mobile Police caused the death of the deceased. He felt that the evidence of the prosecution was full of contradictions which were not reconciled in any manner. Learned counsel for the appellants asserted that overruling of the no case submission was tantamount to asking the appellants to prove their innocence. He cited Mumuni & Ors. v. The State (1975) All NLR 295 at 318. He urged that the appeal be allowed.
Arguing issue 3.1, learned counsel for the respondent submitted that an accused can, at the close of the case for the prosecution make a ‘no case’ submission by virtue of section 286 of the Criminal Procedure Act (CPA). He alluded to the meaning of ‘no case submission’ with reference to the case of Rex v. Coker & Ors. 20 NLR 62 and Ibeziako v. C.O.P (1963) 1 All NLR 61 at 69.
Learned counsel observed that when a court is giving consideration to a submission of no case, it is not necessary at that stage of the trial for the court to determine if the evidence is sufficient to justify a conviction. The trial court only has to be satisfied that there is a prima facie case requiring at least some explanation from the accused person. He cited Ubanatu v. C.O.P (1999) 10 NWLR (pt. 611) 512.
Learned counsel further submitted that when a party in a no case submission indicates intention not to rely on same, what should be considered by the court is not whether the evidence produced by the prosecution against the accused is sufficient to justify conviction, but whether the prosecution has made out a prima facie case against the accused person as regards his conduct or otherwise. If the submission is based on discredited evidence, such evidence must be apparent on the face of the record. If such is not, the submission is bound to fail. He cited the case of Tongo v. C.O.P (2007) 12 NWLR (Pt. 1049) 525 at 544.
Learned counsel submitted that it is premature for the court to believe or disbelieve the witness or witnesses, at the stage of ‘no case submission’ since the defence is yet to present its own witnesses.
Learned counsel cited the case of Duru v. Nwosu (1989) 1 NWLR (Pt. 113) 24 at 43 wherein prima facie case is defined to mean – ‘there is ground for proceeding.’ He observed that the two lower courts concurrently found that the prosecution made out a prima facie case against the appellants requiring at least some explanations from them as they are not relying on their no case submission. Learned counsel submitted that there is circumstantial and inferential evidence against the appellants who were last seen with the deceased. Learned counsel cited Igabele v. The State (2004) 15 NWLR (pt. 596) 314 and Archibong v. The State (2006) 14 NWLR (pt. 1000) 349.
In arguing issue 3.2, learned counsel for the respondent submitted that the evidence of p.W.2, the medical officer and Exhibits C & D, the medical report are sufficient and conclusive proof of the death of Ifeanyi Nnaji. He observed that P.W.3, the father of the deceased identified his son to P.W.2. He maintained that the appellants who were last seen with the deceased should explain what happened to him.
Learned counsel submitted that if there are discrepancies in the evidence of witnesses, they are not material ones that can benefit the appellants. He cited Theophilus v. The State (2000) 3 NWLR (Pt. 643) 13; Igbi v. The State (2000) 3 NWLR (Pt. 648) 169 at 172.
Learned counsel maintained that Exhibit E which was not signed by P.W.3 could not be used to contradict his viva voce evidence. He opined that identity of the deceased was not in doubt. He felt that the case of the prosecution before the trial court is not infested with any apparent or real contradictions. He urged that the appeal be dismissed and the appellants should be called upon to enter their defence.
The applicable law in respect of this matter is section 286 of the Criminal Procedure Act (C.P.A.) Cap 41, Laws of the Federation of Nigeria, 2004 which reads as follows:-
“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.”
It is very common for defence counsel to take umbrage under the above provision of the law to lay claim to what is often referred to as ‘a no case submission’ on behalf of accused persons. It is however, certain that a no case submission should only be made and upheld if any of the two situations stated hereunder prevails at the end of the prosecution’s case, viz:
- There was no legally admissible evidence to prove an essential element of the alleged offence.
- The evidence adduced has been so discredited as a result of cross-examination or the evidence is so manifestly unreliable that no reasonable tribunal can safely convict on it.
However, if a reasonable tribunal can convict on the available evidence, then there is a case to answer. It has been held that however slight evidence linking an accused person with the commission of the offence charged might be, the case ought to proceed for the accused to explain his own side of the matter. See: Ibeziako v. C.O.P (1963) 1 All NLR 61; Lord Parker, Lord Chief Justice of England’s Practice Direction in (1962) 1 WRN 227; Daboh & Anr. v. The State (1977) 5 SC 197 at 209; Adeyemi v. The State (1991) 7 SC (pt. 11) 1; (1991) NWLR (pt. 193) 1.
It is now basic that in considering a submission of no case to answer it is not necessary at that stage to determine whether the evidence is sufficient to justify a conviction. The court only has to be satisfied that there is a prima facie case which requires at least some explanation from the accused person.
As inferred by Abott, F.J. in Ajidagba v. IGP (1958) SC NLR 60, prima facie case is not the same as proof which comes later when the court may find whether the accused is guilty or not. Evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused. On his own part, Nnamani, JSC (of blessed memory) in Duru v. Nwosu (1989) 1 NWLR (Pt. 113) 24 at 43 maintained that prima facie case means that ‘there is ground for proceeding.’ In other words, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it (prima facie) ‘suggests that the evidence produced so far indicates that there is something worth looking at.’
It is also apt to state it here that in Black’s Law Dictionary 6th Edition at page 1189-1190, the expression – ‘prima facie case’ has been defined to mean – ‘such as will prevail until contradicted and overcome by the other evidence. A case which has proceeded upon sufficient proof to that stage where it will support finding if evidence to the contrary is disregarded.’ prima facie evidence is ‘evidence good and sufficient on its face.’
The purport of a no case submission is that the court is not called upon at that stage to express any opinion on the evidence before it. The court is only called upon to take note and rule accordingly that there is before the court no legally admissible evidence linking the accused person with the commission of the offence charged. But if there is legally admissible evidence, however slight, the matter should proceed as there is something to look at. See: Igabele v. The State (supra); Aituma v. The State (2007) 5
NWLR (Pt. 1028) 466.At the stage of no case submission, credibility of prosecution witnesses should not be considered. It is not a stage where a court can believe or disbelieve prosecution witnesses as the defence is yet to present its own witnesses. The court is enjoined to avoid the temptation of being lured to pronounce on the merits or otherwise of the available evidence. A ruling on ‘a no case submission’ should not be of inordinate length. See Ajiboye v. The State (1995) 9 SCNJ 442. I dare to say that ‘a no case submission’ should be determined within the narrow compass of the legally admissible evidence produced by the prosecution; and such should be based on its face value.
Based on the available evidence called by the prosecution, without at this stage, expressing an opinion on it, can it be said that there was no evidence connecting the appellants with the alleged crime The court below answered this poser at page 272 of the record of appeal where Tsamiya, JCA, who delivered the lead judgment, found as follows:-
“For the foregoing however, I am of the view that there is sufficient evidence to justify a finding of there being a prima facie case. The totality of the evidence of PW3 and PW2, Ifeanyi Nnaji while alive was put inside a Pick-up Van and driven away by the appellants. The next day, Ifeanyi Nnaji was found dead in the Mortuary of the Federal Medical Centre, Abakaliki and certified cause of death to be intra crenel (sic) haemorrhage and brain tissue damage secondary to gun shot. Medical reports Exhibit C and D tendered.”
The court below affirmed the stance of the trial court that the prosecution established a prima facie case against the appellants. The prosecution established that the appellants were last seen with the deceased while alive. They should explain what happened to the deceased. That is the stance of this court in Igabele v. The State (supra) and Archibong v. The State (supra).
The two lower courts, in my considered view, rightly called upon the appellants to volunteer explanation in form of defence to the prima facie case made against them. The concurrent finding by the two lower courts on the real determinant issue in this appeal, rests on a solid foundation. The finding of fact is based on a proper appraisal of the evidence adduced before the trial court and same is not perverse. This court will not interfere. See: Echi v. Nnamani & Ors. (2000) 5 SC 62 at 70. There is circumstantial and inferential evidence against the appellants. Same cannot and should not be brushed aside.
In conclusion, the appeal lacks merit and it is hereby dismissed. The judgment of the court below is hereby affirmed. The appellants should proceed to open their defences before the learned trial judge without any further undue delay.
SC.164/2010
