Dele Fagoriola V. Federal Republic Of Nigeria (2013)
LAWGLOBAL HUB Lead Judgment Report
MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, J.S.C.
The appellant, Dele Fagoriola, was arraigned before the High Court of Justice sitting at Akure, Ondo State, on the complaint of the Independent corrupt practices and other Related offences commission (I.C.P.C) on a nine (9) count charge under Section 19 of the Corrupt practices and other Related offences Act 2002, hereinafter called ICPC Act.
The appellant was accused of conferring corrupt advantage upon himself and his wife by collecting and/or approving various sums of money totalling nine hundred and seven thousand four hundred and nine naira (N907, 450) from the coffers of the local Government for the purposes of attending conferences, seminars and workshops but which the appellant did not attend and to which his wife was not entitled as she was not a staff of the Local Government. At the material time, the appellant was the chairman of the Akure North Local Government. At the trial the prosecution called eight (8) witnesses and tendered many documents while some documents, Exhibits Z12 – 18 were tendered by the appellant through the prosecution witness No. 8, during cross examination recognizing the position of the chairperson in the Local Government and its entitlement to certain benefits. At the conclusion of the prosecution’s case, the appellant, through his counsel, made “a no case submission” pursuant to section 296 of the Criminal Procedure Law, Cap 31 of the Laws of Ondo State 1978 on the ground that the prosecution failed to establish the essential ingredients of the offence as contained in section 19 of the I.C.P.C Act, Cap 31 L. F. N. 2004. The trial court in a considered ruling refused “the no case submission”. In its conclusion, the trial court found follows at pages 115 – 118 of the record:-
“it is pertinent at this stage to ask myself a number of questions which I believe will resolve the issue of whether to uphold the no case submission or not. The questions are:-
i. what were the true facts of this matter
ii. Did the accused confer corrupt advantage upon himself and his wife or not
iii. if yes how did he do so
iv. if the answer is in the negative where is the evidence for this court to act upon”
There are other questions submitted in the major question posed above.
There is evidence before this court that the accused person and his wife did not attend some conferences and workshops. There is evidence before this court that some of the conferences and workshops did not hold. I hold without saying more that the accused person must explain and throw light upon the areas which are not clear to the court. The accused must explain in defence of his position. I hold that the accused has a case to answer and for this I now call upon him to enter upon his defence”.
The appellant was aggrieved with the decision of the trial court and as a result appealed to the Court of Appeal, Benin Division, hereinafter called the lower court. On 11th May, 2010 the lower court dismissed the appellant’s appeal. In its conclusion it held as follows:-
“At the stage of no case submission at the close of the prosecution’s case, what is required of a trial court is not to evaluate or attach weight to the evidence led by the prosecution at that stage or to write lengthy judgment. A ruling on a no case submission should be as brief as possible and not in any way go into evaluation of the evidence led. Therefore the issue is not whether the prosecution has proved the charge against the accused beyond reasonable doubt. In the instant case I cannot see how the trial Judge descended (sic) into the arena and expressed any opinion that may fetter his discretion”.
In fact concluded (sic) thus and I quote. At pages 218 – 219 per Shoremi JCA.
“I intend to maintain a clear mind to receive the defence of the accused person and adjudicate on the totality of the evidence in this matter”.
“It follows that what has to be considered at the stage of a no case submission is not whether the evidence against the accused is sufficient to justify conviction but whether the prosecution has made a prima facie case requiring at least some explanation from the accused person. See Ekwenuon v. FRN (2008) 7 SCNJ (July) 236 at 242. It is therefore clear that the trial Judge at that time had not convicted the appellant but merely did the right thing by calling on him to make a defence. It is still open to the appellant either to make a defence or rest his case on the prosecution. I hold that the trial judge did not concern itself with the credibility of witnesses or the weight of their evidence. He therefore did not make any observation or expressed any opinion on the evidence before him therefore deferring his discretion”.
The appellant was again dissatisfied with the decision/judgment of the lower court and appealed to this Hon. Court. Both parties filed their respective briefs of argument. The appellant formulated two issues for determination in his brief as follows:-
- Whether the respondent has made out a prima facie case against the appellant making it necessary for the Court of Appeal to call on the appellant to open his defence.
- Whether the Court of Appeal was right in holding that the trial court did not make any observation or express any opinion on the evidence before it which fetters its discretion.
The respondent in its brief of argument also formulated two issues for determination in the following terms:-
- Whether or not the prosecution has proved all the essential ingredients (elements) of the offences with which the appellant was charged to warrant him to open his defence.
- Whether or not the trial court’s ruling dismissing the no case submission made by the appellant contained observation or opinion that is prejudicial to the appellant’s case.
At the hearing on 11/4/13 the appellant’s learned counsel adopted his brief of argument and urged this court to allow the appeal.
On his issue No. 1, it was submitted that at the stage of no case submission, what has to be considered is certainly not whether the evidence against the accused is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring at least some explanation from the accused person, cites: – Ekwunuofo V. FRC (2008) 8 NWLR (pt. 1111) 630 at 639, Ajiboye V. State (1995) 8 NWLR (pt.44) 408 at 418. He further contended that a prosecution is said to have made out a prima facie case when the totality of the evidence adduced by the prosecution is such that if un-contradicted and believed will be sufficient to prove the case against the accused person, he referred to Ajidagba v. I. G. P (1958) NSCC 20 at 21; Ubanatu v. Cop (2000) 2 NWLR (pt. 643) 115 at 129. He therefore contended that one of the essential elements/ingredients of the offence charged was not proved. He referred to Section 19 of the I.C.P.C. Act and he contended that the elements of the offence charged are:-
i. The accused person must be a public officer and
ii. That the accused person used his office or position to gratify or confer any corrupt or unfair advantage upon himself or any relation.
The second ingredient was alleged not to have been proved by the prosecution. He referred to the evidence of Pw4 which he said that the accused person was not only the approving authority for payment, and they were three (3) unless the three of them approved no payment would be made. He therefore submitted that the lower court was wrong to have upheld the ruling of the trial court.
On issue No. II, he contended that the trial court evaluated the evidence adduced in its ruling, which fettered its jurisdiction that the posing of some vital and fundamental questions by the trial court readily reveals that the court had conclusively made up its mind to place the burden of proof on the appellant when prosecution has failed to prove the elements of the offence.
Learned counsel to the respondent adopted his brief of argument at the hearing and urged this court to dismiss the appeal. On his issue No. 1, it is the submission of the learned counsel that having regard to the evidence adduced by the prosecution and exhibits tendered in the course of the trial, the no case submission was misconceived and properly refused. That all that is required at this stage of trial is a prima facie case against the appellant. The evidence establishing a prima facie case is not to be such as would ground a conviction, relying on Ubanatu V. COP (2001) 2 ACLR 315 at 335.
Learned counsel agreed with the ingredients of the offence charged under Section 19 of the corrupt practices and other related offences Act as stated by the appellant and submitted that contrary to the submission of the appellant the second ingredient of the offence has been proved by the evidence given by the prosecution witnesses.
He referred to the evidence given by the prosecution witnesses. He referred to the evidence of PW1 and PW8 which show that the appellant collected various sums of money from the coffers of the Local Government under the guise of attending seminars and workshops which he never attended or for some seminars/workshops that never took place. The evidence of collection of the money was given by PW4 while PW3 gave evidence of approval given by the appellant in Exhibits E. F. G. H. I. K. L and M.
On issue No. 2, it was the contention of the learned counsel to the respondent that the mere fact that the trial court commented by way of observation or opinion in a no case submission is not enough to fetter its discretion.
What the court did was to ascertain whether or not there is any evidence at all, no matter how slightly, linking the accused with the offence charged. This does not involve evaluation of evidence or the ascription of probative value to evidence. He therefore contended that the observation or opinion in the ruling of the trial court has no effect of vitiating or fettering the discretion of the court. What the court did in this case was steering a middle course relying
On:-
i. Ekanem v. King (1950) 13 WACA 108.
ii. Atano v. A-G Bendel State (1998) 2 NWLR (pt.75) 201, and
iii. Bello v. Emedo (2001) 12 NWLR (pt.726) 131.
My lords, I have set out the submissions of the learned counsel on behalf of their respective parties/clients in this case. The pertinent question at this juncture is when a “no case submission” is made, in a criminal trial, at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of the accused person postulates one or two things or both of them at once:
(a) Such a submission postulates that there has been, throughout the trial, no legally admissible evidence of whom the submission has been made linking him in any way with the commission of the offence with which he had been charged, which would necessitate his being called upon for his defence.
(b) That whatever evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable court can be called upon to act on it as establishing criminal guilt in the accused person concerned.
Therefore when a submission of no case is made, the trial court is not hereby called upon, at that stage of proceeding, to express any opinion on the evidence before it. The court is only called upon to take note and to rule accordingly that there is, before the court, no legally admissible evidence linking the accused person with the commission of the offence with which he is charge or that there is evidence before it linking the accused person with the offence charged. See Aituma v. State (2007) 5 NWLR (pt.1028) 466, Igabete v. State (2004) 15 NWLR (pt.896) 314, Ajibiyo v. The State (1998) ACLR 555.
Similarly, a no case submission may be upheld where
(a). there is no evidence to prove an essential element of the alleged offence.
(b). the evidence has been so discredited as a result of cross-examination, and
(c). the evidence is manifestly unreliable that no reasonable tribunal or court can safely convict on it.
The next question is when is a prima facie case made by the prosecution. A prima facie case is said to exist when there is evidence sufficient enough to support the allegation made against the accused person. It means that a presumption of guilt is made out against the accused, and as soon as a prima facie case is made out against the accused, he should rebut same on fact in his defence. See Igho v. State (1978) 3 SC p. 87.
This court in Ubanatu v. Cop (2000) 3 NWLR (pt.643) 115 at 129. My learned brother Ogwuegbu, JSC, (as he then was) defined prima facie as follows:-
“But 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” pp.125 – 131.
In the case of Duru v. Nwosu (1989) 1 NWLR (pt.113) 24 at 43 Nnamani JSC (as he then was of blessed memory) stated thus:-
“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 proceeding. On the face of it, suggests that the evidence produced so far indicates that there is something worth looking at”.
My lords, applying the above stated principles; can one say that there is no evidence before the trial court as “worth looking at” or to make it worthwhile to continue the proceedings I have no doubt in my mind that a perusal of the evidence of the prosecution witnesses show that various sums of money was collected by the appellant for seminars/workshops for himself and his wife, which the witnesses said were never attended or that some did not even take place. These pieces of evidence deserved explanation from the appellant in the course of his defence. I have no doubt in my mind that if these pieces of evidence were not challenged they would be sufficient to ground the appellant’s conviction. I therefore hold that the lower court was correct in affirming the ruling of the trial court.
The appellant alleged that the trial court made observation that has fettered its discretion in this case.
I have closely gone through the ruling of the trial court I do not see anywhere the trial court made any observation or appraisal of the evidence before it that may fetter its discretion. The mere fact that the trial court stated that there is evidence before it to support the allegation that the appellant and his wife collected money for seminars/Workshops, is merely to support the fact that there is prima facie evidence that would require the appellant to offer some explanation in his defence.
(Italics mine for clarity)
In the final analysis, I hold that this appeal lacks merit and it is hereby dismissed. A case that started in 2006 has been dragged and delayed for eight years by the appellant, the period within which he could have it determined one way or the other by the trial court. I have therefore no option other than to send and remit this case to the trial court for continuation and for the appellant to enter his defence, if he intends to do so.
SC.230/2010