Ufuoma Paul Eto & the State & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
GEORGE OLADEINDE SHOREMI J.C.A
This is an appeal against the ruling of the High Court of Delta State Oleh Judicial Division delivered on 8th March 2005 wherein the learned trial Judge over ruled the appellant’s no-case submission made at the end of the prosecution’s case.
The appellant with two other accused persons were arraigned on a two court charge contained in an information to wit-
STATEMENT OF OFFENCE: Count 1
Conspiracy to Murder, punishable under Section 324 of the Criminal Code Cap. 48, Vol. II Laws of the defunct Bendel State 1976 as applicable to Delta State.
PARTICULARS OF OFFENCE
Ufuoma Paul Eto (m), Samson Edoreh (m) and Akpoghene Edeno (m) on or about the 12th day of June, 2000 at Oleh, within Oleh Judicial Division conspired with one another to commit murder.
STATEMENT OF OFFENCE: Count II
Murder, punishable under Section 319(1) of the Criminal Code Cap. 48, Vol.II Laws of the defunct Bendel State 1976 as applicable to Delta State.
PARTICULARS OF OFFENCE
Ufuoma Paul Eto (m), Samson Edreh (m), and Akpoghene Edeno (m) on the 12th day of June, 2000 at Oleh within Oleh Judicial Division murdered one Julius Oforofuo (m),
The appellant pleaded not guilty. The prosecution called six witnesses at the end of prosecution’s case appellant’s counsel made a no case submission to which counsel to the prosecution replied. The learned trial Judge over ruled the submission and called on the appellant to defend himself. The learned trial Judge in overruling the no case submission held that the evidence adduced by the prosecution established a prime facie case against the appellant. The ruling of the learned trial Judge is contained at pages 33-37 of the record. Being dissatisfied with the ruling the appellant who was the 1st accused in the High Court appealed to this court. The appellant filed a Notice of Appeal and filed two Grounds of appeal which is at pages 39-40 of the records of appeal which I quote as follows:-
“1 The learned trial judge erred in law in over ruling the no case submission in this case when:
a) Essential elements of the offence of murder were not established.
b) Death of the deceased was not established,
c) Evidence of PW4 and PW5 as to the identity of the alleged deceased on whom post mortem was perform is contradictory.
d) A Medical evidence was contradictory.
- The learned trial Judge erred in law in over ruling a no case submission of the 1st accused person without considering the issues and submissions made by 1st accused person.
Briefs of Argument were duly filed. The appellant identified the following issues in his brief for our determination. –
(a) Was the learned trial Judge right to overrule the no case submission and call on the appellant for his defence on a charge of murder in this case?
(b) Was the learned trial Judge right in overruling the submission that appellant has no case to answer on a charge of murder without considering or considering adequately the issue raised of the appellant
Two issues were formulated by the Respondent in his brief to wit
(1) Was the learned trial Judge right to overrule a no case submission and call on the appellant for his defence on a charge of murder in this case?
(2) Whether the leaned trial Judge adequately considered the issues raised by the appellant in his submission that the prosecution did not make out a prime facie case against him?
In my view the two issues formulated by both parties are covered by the two grounds of appeal. Therefore a consideration of the issues formulated by the appellant which are similar to that of the Respondent will take care of the appeal. When the appeal came up for hearing on the 9th day of July 2007 the Appellant’s counsel adopted his brief dated 16/9/05 and filed on 26/9/05. He adopted same and relied on the brief of argument and he with leave of court cited an additional authority i.e the case of YOUNG UKAUWA UGURU V. THE STATE (2002) FWLR Pt 103 at 330 133. The Respondent’s counsel also adopted his brief of argument which was deemed filed on 19/2/07 by leave of court. One of the complaints of the appellant is that the learned trial Judge did not consider adequately the issue raised by the appellant.
For this reason I shall quote part of the ruling of the learned trial Judge which runs thus-
“In my most humble opinion, question, the relevant question at the close of the case for the prosecution is whether on the totality of the evidence so far adduced considered along with the no-case submission, is there before me a prime facie case against the accused persons calling for and/or requiring some explanations from the accused person? See ABOGEDE V. STATE (1996) 4 SCNJ 223 at 233.
Nnamani JSC of blessed memory in DURU V. NWOSU (1989) 1 NWLR (pt. 113) 24 at 43 cited in UBANATU V. C.O.P. (2000) FWLR (pt.1) 138 at 153 said of prime facie case:-
“it seems to me the simplest definition is that which says that ‘there is ground for proceedings’. In other words, that something has been produced to make it worthwhile to continue with the proceeding on the face of it”, suggests that that the evidence produced so far indicates that there is something worth looking at.”
Therefore in obedience to the above judicial precedents and guidelines which are binding on this court, I am of the opinion that the evidence so far called by the prosecution engenders a ground for proceeding. It indicates that there is something worth looking at by over ruling the no-case submission. The effect is that there is a prime facie case against each of the three accused persons. The 1st accused shall enter his defence on both counts.”
On Issue 1 the appellant argued that it is settled law that that a submissions of no case to answer may be properly made and upheld in the circumstance enumerated in the case of EKPO V. THE STATE 2001 FWLR (PT. 55) at 462; UBANTO V. COP (2000) 2 NWLR (PT. 643) 115; DEBOH V. THE STATE 1977 5 SC 197 at 210; AJIDAGBA V. IGP 1958 3 FSC 5 is authority for the preposition that if an essential ingredient of the offence charged is not proved, the court is duty bound to discharge the accused person.
Also if the evidence is so manifestly unreliable having been destroyed by cross- examination of the witnesses that no reasonable tribunal will convict on that evidence. The principle was again restated in the case of IBEZIAKO V. COP 1963 1 All NLR 61; A TANO V . A.G. BENDEL STATE 1988 2 NWLR PT 75 at 207. The appellant argued that the death of Julius Oforofuo and cause of death were not proved. The Appellant challenged the autopsy performed on of the deceased in that there were discrepancies as to the hospital in which the autopsy was performed and further more whether it was the body of a middle aged man or not that the post mortem was performed.
None of the witness gave evidence that the deceased died on the spot the appellant also argued that the evidence of the Doctor who performed the post mortem examination was shattered by the evidence of PW5 the investigating police officer. On this issue the learned counsel to the appellants argument that the learned trial Judge was therefore in grave error when he said “I am of opinion that the evidence so far called by the prosecution engenders a ground for proceeding” indicate that there is something worth looking at by overruling the no case submission. The effect is that there is a prima facie case against each of the three accused person.”
On Issue 2 – The appellant argued that the trial Judge appears to have relied on and based his judgment on what his Lordship saw as the meaning of prima facie case which he set out at page 37 of the Record. Thus quoting Nnamani JSC ……………
“It seems to me that the simplest definition is that which says “there is ground for proceeding” In other words that something had been produced to make it worthwhile to continue with proceedings on the face of it suggest that the evidence produced so far indicate. That there is something worth at.”
The appellant however agreed and admitted that the evidence of PW4 And PW5 are witnesses whose evidence could “possibly” have established death of Julius, the cause of his death and perhaps link the appellant with the death. He concluded that there is nothing worth looking at in evidence which by Law is discredited and rendered unreliable. The learned trial Judge wrongly over looked those facts when he held there was prima facie case.
He concluded by saying that the prosecution failed to established the essential element of the death of and cause of death of Julius Oforofuo.
(2) The evidence of PW4 and PW5 as to death and cause of death is manifestly contradictory.
(3) No prima facie case was established to warrant appellant being called upon to defend a charge of murder.
(4) The learned trial Judge wrongly failed to consider contradiction in the evidence of PW4 and PW5 and Appellant submission thereof.
(5) On the evidence so given no prima facie case of murder was discovered discharged
He urged that the appeal be allowed and the ruling of the trial Judge be set aside and in its place an order upholding appellant no case submission on the charge of murder. The Respondent in his brief of argument says the prosecution has successfully proved it case beyond reasonable doubt against the appellant as necessary ingredient of the offence charged were proved he cited the following cases.
ONAFOWOKAN V. THE STATE 19873 NWLR PT 61 page 538; MBANE CAN SHADE V. THE STATE 2004 All FWLR PT 223, 1958. The Respondent citing the case of QUEEN V. ONORO 1961 NSCC VOL. 2 page 26 urged the court to infer intention to kill form the nature of the wound inflicted particularly Evidence of the 4th PW.
He further argued that it is only when discrepancies or contradiction are material in the prosecutions case that they cast some doubt that an accused is entitled to the benefit of them. He cited the case of AHMED V. THE STATE (2001) 18 NWLR PT 746 page 627. He argued that the prosecution had proved successfully what caused the death of the deceased and this had been proved successful, by he evidence of PW4 the medical Doctor. He submitted that from all the evidence adduced by the prosecution the ingredients for the offence of murder has been successfully proved beyond doubt and urged this court to affirm the ruling of the lower court.
Let me say at this juncture that the Respondents argument had gone beyond what is expected in a submission of no case as he argued that the case had been proved beyond reasonable doubt and urging it on this court to convict and sentence the appellant. At this stage proof beyond reasonable doubt is not the standard of proof. See CHIANUGO V. THE STATE (2002) 2 NWLR (PT.750) 225 at 238, paras C-E, per Aderemi, JCA who stated the principle of law thus:
“It must however be noted that the evidence establishing a prima facie case is not to be such as would ground a conviction. Rather, it only means that the evidence led by the prosecution has so covered all the essential element of the alleged offence and it remains uncontradicted and not discredited through cross-examination a reasonable tribunal may justifiably convict on it, and therefore some explanation is required from the accused. Indeed, the trial Judge is not thereby called upon at that stage to express any opinion on the evidence before it. The trial Judge, should not in general be called upon to reach a decision as to conviction or acquittal until the whole evidence which either side wishes to render has been placed before him”
Having set out the argument of both parties to this appeal I now go to consider issue 1 as to whether the Judge was right to overrule the no case submission and call on the appellant for his defence on a charge of murder. In a murder charge for the prosecution to discharge its burden of proving the case beyond reasonable doubt it must prove-
(a) The death of the deceased.
(b) The act or omission of the accused which cause the death.
(c) That the act or omission of the accused stated in (b) above was intended and with knowledge that death or grievous harm was its probable consequence. See GIRA V. STATE 1996 4 NWLR pt 443, 375; NWAZE V. STATE 1996 2 NWLR Pt. 428 1; OGBA V. STATE 1992 2 NWLR (Pt 222) 164.
In this case there was death and there was evidence that the appellant stabbed the deceased and cross examination did not show that there is possibility that the deceased died from other causes. There is evidence of the Doctor as to the type of injury the deceased suffered.
The argument of the appellant that there is no certainty that a post mortem examination was carried out on the body of the deceased cannot hold having regard to the evidence of the father of the deceased as to the identification of the body of the son to the doctor who performed the post mortem examination. There is no doubt that there is evidence connecting the death of the deceased with the act of the accused.
It has been clearly stated in decided cases that a submission no case to answer may be properly made and upheld in the following circumstance –
(a) When there has been no evidence to prove an essential element in the alleged offence either directly, circumstantially or inferentially, or
(b) When evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal can safely convict on it ADEYEMI V. THE STATE 1991 6 NWLR Pt 195 1; OYEBOLA V. STATE 1995 8 NWLR Pt 414 at 412; ABOGEDE V. STATE 1996 5 NWLR Pt 448; 270.
In AJIDAGBA V. IGP 3 FSC 5 (A locus classicus) it was held that a decision to discharge an accused person on the ground that prima facie case had not been made against him must be a decision upon which a calm view of the whole evidence offered by the prosecution a rational understanding will suggest the conscientious hesitation of a mind that is not influenced by party preoccupied by prejudice on subdued by fear. 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.
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. A prima facie case means there is ground for proceedings. It also means a case in which there is some evidence in support of a charge or allegation made which will stand unless it is displaced. EKPO V. STATE (2001) 7 NWLR Pt 712, 292. In Osborn’s Concise Law Dictionary 8th Ed. by Rutterford and B one at page 259 the expression “Prima facie case” is defined as –
“A case in which there is evidence which will suffice to support the allegation made in it and which will stand unless there is evidence to rebut the allegation. When a case’ is being heard in court if the party on whom, the burden of proof rests must make out a prima facie case otherwise the other party will be able to submit that there is no case to answer and if he is successful the case will be dismissed”
A prima facie case is “A case which has preceded upon sufficient proof to that stage where it will support finding if evidence to contrary is disregarded” The phrase burden of proof is used in two senses which are sometimes confused-
(a) Burden of establishing a case which rest on the prosecution.
(b) Burden of introducing evidence though it rests on the prosecution in the first instance may subsequently shift to the defence where the prosecution had established a prima facie case or where the subject matter is peculiarly within the accused knowledge COP V. GBEDEMA 2nd March 1950 WACA Criminal Appeal Reports 64.
Having regard to the above definitions of expression “prima facie case” and various authorities on the subject matter can it he said that the learned trial Judge rightly overruled the no case submission made by the learned appellant’s counsel? One should not go outside the evidence adduced by the prosecution in coming to a conclusion: MOHAMMED V. STATE (2007) All FLR Pt. 368, 668.
At the close of the prosecution’s case a trial court should consider whether these is evidence which will suffice to support the allegation made in the charge and whether such evidence will stand unless the accused produces no evidence to rebut it if at the close of the case for the prosecution there is no proof of an essential element in the said charge and a submission of no case is made a trial court ought to uphold the submission. See UBANATU V. COP (2000) 2 NWLR Pt 643
Evidence of the 3rd PW Mary Oforofo claimed to know the three accused persons including the appellant. She has this to say I quote –
“I heard shout behind the compound by my daughter calling mummy daddy come they are killing Julius in the bathroom. I rushed in company of my husband. As I was rushing towards the bathroom I saw three boys rushing from the bathroom and ran away while the 1st accused (i.e appellant) ran through the frontage towards the direction of their house the 1st accused said you Julius you must die when I entered the bathroom I saw my son in a pool of blood.”
The 2nd PW categorically said in the evidence and I quote –
“Ufuoma Eto held a dagger 2nd & 3rd accused held dagger after the 2nd & 3rd accused ran away 1st accused was still stabbing the deceased.”
The 4th PW performed port mortem on the body of Julius Oforofo not ‘withstanding the submission of appellant counsel that the hospital where it was held is not certain. Julius Oforofo was adequately identified by his father, therefore his identity is certain.
At this stage the trial court is not expected to say whether he believed one evidence or the other the question for him to answer is whether the appellant needs to answer some questions. If he find so as he did in this case is right so to do.
From the above I answer Issue 1 as to whether the learned trial Judge was right to overrule the no – case submission and call on the appellant for his defence on a charge of murder in this case to the affirmative.
On Issue 2 I can not see any inconsistency or self contradiction in the evidence of the prosecution witnesses. If there is any as the appellant would want this court to believe it is not material. The Age of the deceased is not In Issue.
A prima facie case of murder is made against the appellant. I therefore see no reason why the Ruling of the learned trial Judge should be disturbed. The learned trial Judge was right in overruling the submission that the appellant has no case to answer on a murder charge.
The ruling of Umukoro J delivered on 8th day of March at High Court Oleh Delta State calling on the appellant to enter his defence is affirmed. The appeal therefore lacks merit and it is hereby dismissed.
Other Citations: (2007)LCN/2617(CA)
