Alhaji Kazeem Owonikoko V. The State (1989)

LawGlobal-Hub Lead Judgment Report

AKANBI, J.C.A. 

Applicant in this case is standing trial in the High Court for (a) wilful and unlawful damage of property contrary to section 451 of the Criminal Code and (b) forceful entry contrary to section 81 of the same Code. The prosecution led evidence in support of the two counts. At the close of the prosecution’s case learned counsel appearing for the applicant (defendant) made a no case submission. He urged that there were discrepancies in the evidence of the prosecution particularly with regard to the location of the damaged property but more importantly he contended that the applicant had through the prosecution witnesses established a bona fide claim of right to the damaged property and was therefore entitled to take advantage of the provision of Section 23 of the Criminal Code which reads thus:-“A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.”

In this respect he relied heavily on the cases of Chief Samuel Oteri and 4 Ors against Thomas Afonughe and 1 Or. FCA/B/2/78 delivered on the 28th February, 1979 (unreported) and the State v. Dominic Annah and others (1976) 6 E.C.S.L.R. 21. Accordingly, he submitted that having regard to the facts established, the no-case submission, should be upheld.

The learned trial Judge in a considered ruling however ruled that the prosecution has made a prima facie case against the applicant. He called on him to enter upon his defence.

Dissatisfied with the ruling against the no-case submission, learned counsel for the applicant, Mr. R. A. Ogunwole sought leave of this Court to Appeal. An earlier application to the High Court for leave to appeal had been refused by that court. The grounds of the application to this Court are that (a) the grounds of appeal sought to be canvassed involved questions of mixed law and fact and (b) that leave had earlier been refused by the High Court and that it is necessary to obtain same from this court. The argument of Mr. R. A. Ogunwole in this Court as in the High Court largely turned on section 23 of the Criminal Code. He opined that in destroying the property it was clear that the applicant did so honestly believing that he had a bona fide claim of right to the property and that the case of Chief Oteri and 4 others v. Thomas Afonughe (supra) a decision of the Benin Division of this Court eminently justified his contention that the applicant has no case to answer and that the trial Judge was clearly wrong in holding to the contrary. He said that what is required of an applicant seeking leave to appeal is for him to show that the grounds of appeal are arguable. He does not have to establish that his appeal will succeed. In support of the proposition, he cited the cases of (1) Ojora v. Odunsi (1964) N.M.L.R. p.12 at 16, Obikoya v. Wema Bank Ltd. (1989) 1 N.W.L.R. (Pt.96) 157 at 160, Holman Bros. (Nig.) Ltd. v. Kigo (Nig.) Ltd. (1980) 8/11 S.C. 43 at 62.

Mr. Boade for the respondent submitted that leave ought not be granted in this case. It was his contention that if the applicant was so sure that his no case submission ought to have been upheld then it was open to him to rest his case on the evidence tendered by the prosecution. The applicant, he said, was at liberty not to give evidence or call evidence if he was wrongly over-ruled; and that in any case, he could still take the point in a substantive appeal. He relied on the case of R v. Ajani and Ors. 3 W.A.C.A. 3.

I start a consideration of this application by saying that the grant of leave to appeal is not automatic. It is within the discretion of this Court to grant or refuse leave. See Ojora v. Odunsi (1964) 1 All N.L.R. 55 at 61. The discretion must however be judiciously and judicially exercised and on the basis of the materials before the court. See University of Lagos & Ors. v. Olaniyan & Ors. (1985) 1 S.C. 295, (1985) 1 N.W.L.R. (Pt. 1) 156; Demuren v. Asuni (1967) 1 All N.L.R. 94.

As a matter of general principle however leave to appeal will be granted where the grounds of appeal raise issues of general importance or a novel point of law or where the grounds show a prima facie or arguable appeal. See Buckle v. Holmer (1926) All E.R. (Reprint) 90 at 91; Kigo (Nig.) Ltd. v. Holman Bros. (Nig.) Ltd. (1981) 1 S. C. 62 at 63. However, where the grounds of appeal are frivolous, vexatious, or useless or hypothetical, no leave to appeal will be granted. Dike v. Nzeka (1986) 4 N.W.L.R. (Pt.34) 144 & Eperokun v. University of Lagos (1986) 4 N.W.L.R. (Pt.34) 162. I may also add that the case of Ojora v. Odunsi (supra) is authority for the proposition that it is within the discretion of a Court to grant leave on one or some points of importance and refuse leave generally on facts.

In my consideration of this application I shall allow myself to be guided by the principles laid down in the above cases. But I must at this early stage observe that the circumstances under which a no case submission may be upheld have been set out in a number of cases to which references were made by the trial Judge. As a matter of general or basic principle a no case submission will be upheld only:-

(a) When there is no evidence to prove an essential ingredient of the alleged offence.

(b) When the evidence of the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. See R. v. Coker (1953) 20 N.L.R. 62, in Re Gafari Ajidagba v. I.G. of Police (1958) 3 F.S.C. 5 [1958] SCNLR 60; R v. Ojuwa Ogucha (1959) 4 F.S.C. 64; [1959] SCNLR 154; Lazarus Atano v. A.G. Bendel State (1988) 2 N.W.L.R. (Pt.75) 201; Ibeziako v. C.O.P. (1963) N.N.L.R. 88 at 94; [1963] 1 SCNLR 99.

The proposed appeal in this case aims at questioning the ruling against the no case submission made by the trial Judge that is to say whether that ruling was properly made or not. It is clearly not concerned with whether or not the applicant on the evidence led, is guilty of the offences charged. That stage had not been reached in the trial court. The trial is yet to be concluded. The crucial issue to be determined, if leave is granted, is whether on an assessment and/or evaluation of the evidence so far given against the applicant, ought the trial Judge over-rule the no case submission made on his behalf and call upon him to enter upon his defence? Or put differently, having regard to the evidence on record, was a prima facie case made against the applicant at all?

Clearly, if on the evidence on record, it is apparent that through effective cross-examination the case of the prosecution has been manifestly discredited or shattered as to make it unreasonable for the adjudicating tribunal to call on the accused to enter upon his defence, a no case submission will be upheld; and equally so, if on the totality of the evidence so far led, it is apparent that an essential ingredient of the offence charged has not been proved. In those circumstances, the accused would be entitled to an order of acquittal and discharge.

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 on 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 premises on which a ruling on a no case submission may be challenged or attacked.