Augustine Achi V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A.(Delivering the leading Judgment)

The appellant was one of the accused persons in case No.HJ/7C/2004 before the High court of Cross River state sitting at Ogoja on a three count charge of:

1. Conspiracy contrary to Section 518 (6);
2. Damaging trees contrary to Section 451;
3. Removal of boundary marks contrary to section 457; all of Criminal code all of Cap.31 Volume II Laws of cross River State of Nigeria.

The particulars of offence were that the appellant with other accused persons conspired among themselves on or about 15th July, 2001 at Ipoute Aliforkpa, Yala in Ogoja Judicial Division to effect unlawful purpose, to wit malicious damage of trees and removal of boundary marks planted and or erected by Dr. Paul Elanya Adi willfully and unlawfully damaging 300 Teak trees and 70 casuarina trees as we, as willfully and unlawfully removing beacon stones erected on the land by Dr. Paul Elanya Adi as boundary marks.

The accused persons (appellant inclusive) pleaded not guilty to the allegations and the case went to trial at which the prosecution cared 5 witnesses after which the learned defence counsel made a submission of no case to answer on behalf of the accused persons. The learned trial judge delivered a ruling and rejected the submission of no case to answer as a result of which the appellant filed this appeal.

The appellant had initially filed one ground of appeal but with the leave of court he filed five additional grounds. From these grounds of appeal, the learned counsel, Matthew Ojua Esq. raised the following issues for determination:

1. Whether the learned trial judge was right in overruling the no case submission and holding that there is a ground to proceed.
2. Whether the learned trial judge was right in applying the contents of the extra judicial statement of a co-accused in the determination of the fate of the appellant.
3. Whether the learned trial judge was right in holding that the defence of bonafide claim of right was not available to the appellant because he said he knew that the removal of beacons was wrong and forbidden by law.
4. Whether the learned trial judge was right in of the holding that rising of the defence of bona-fide claim of right amounted to admission of the commission of an offence, thereby making it otiose for the prosecution to proof its case beyond reasonable doubt.
5. Whether the learned trial judge was right in failing to be brief in his ruling on a no-case submission and making pronouncements that are conclusive of the guilt of the appellant.

The learned counsel submitted on issue No.1 that for a court to hold that there is a case to proceed against the accused person, the prosecution must have made out a prima facie case against the accused. He argued that a no-case submission postulates that there has been no legally admissible evidence at all to link the accused person with the commission of the offence alleged to warrant his being called upon for a defence, or that evidence against the accused has been so discredited that no reasonable court can convict thereupon. He submitted that the case against the appellant was based on suspicion and that suspicion on matter how high, cannot ground conviction, citing Orji v. State (2008) 10 NWLR (Pt. 1094) 31; Idowu v. State (1998) 9-10 SC 1; Onah v. State (1985) 12 NWLR (pt. 12) 236; Emine v. State (1991) 7 NWLR (pt. 204) 480; Ubo Chi v. State (1998) 8 NWLR (pt. 314) 697; Ahmed v. State (2001) 18 NWLR (Pt. 746) 622; F.R.N. v. Ekwenugo (2002) 3 NWLR (pt. 1021) 209.

On issue No. 2; the learned counsel submitted that admission made by an accused person in his statement to police is admissible against the maker only and not against his co-accused except where it is adopted. He cited R. v. Ajani (1936) 5 WACA 3; Oyakhire v. State (2007) ALL FWLR (Pt. 30) 604; Badmus v. C.O.P (1948) 2 WACA 432 and submitted that the learned trial judge was wrong when he applied the extra judicial statement of a co-accused to determine the defence raised by the appellant.

One issue 3, the learned counsel argued that the trial court was wrong in rejecting the defence of bonafide claim of right raised by the appellant and hording that the defence was not available to him a decision that was based on a wrong interpretation of section 23 of Criminal Code. On the correct interpretation of that provision, he cited Ibeziako v. The State (1989) CLRN 123; Nwakire v. COP (1992) 5 NWLR (pt.241) 289.

Still arguing on the bonafide claim of right in issue No. 4, the appellant’s counsel said the bonafide claim of right was raised as an alternative defence without conceding the fact that the appellant committed the acts complained of.

On issue No. 5, the learned counsel submitted that in a ruling on a no-case submission, the judge ought not to express opinion on the evidence before it or draw inferences or make comments that may be prejudicial to the case of the defence. He cited State v. Okoye (2007) 16 NWLR (pt. 1061) 607. He argued that the learned trial judge had evaluated the evidence in the case, arrived at conclusions and foreclosed the appellants, possible defences. He urged this court to hold that the ruling of the learned trial judge was not in line with the standard in a no-case submission. On the whole counsel urged that this appeal be allowed.

The respondent raised a Preliminary objection to the hearing of this appeal which the learned counsel to the respondent argued on pages 2-5 of the respondent’s Brief of Argument. He however raised two issues for determination in the event of failure of the preliminary objection.

The argument of the learned counsel on the objection is that the ruling on a no-case submission was not an appealable decision under Section 318 (1) of the constitution of the Federal Republic of Nigeria, 1999, and as such, this court has no jurisdiction to entertain it. He referred to the cases of Nwosu V. The State (1990) 7 NWLR (pt. 162); Ajisefini V. DPP (1998) 8 NWLR (pt. 562) 447; Onagoruwa V. The State (1992) 5 NWLR (Pt. 244) 713; Mohammed Olawumi V. The State (1990) 2 NWLR (pt. 133) 458. He made a review of these cases and urged this court to hold that this appeal is incompetent and should be refused in limine.

In the alternative the learned counsel formulated two issues for determination in the appeal;

1. Whether the learned trial judge was right in overruling the no-case submission and calling on the Appellant to enter his defence.
2. Whether the decision of the learned trial court was fettered by the length of the ruling in the no-case submission.

On issue No. 1, the learned counsel argued that there was abundant ground for the appellant to be called upon for explanation on the case. He submitted that a submission that there is no-case to answer may be upheld where: