Oko Atutu & Ors V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the Ruling of the High Court of Cross River State sitting at Ogoja in the four (4) counts charge No. HJ/2C/2011 against the Appellants by which the no case submission made for the Appellants was overruled and they were called upon to enter their defence in the case.

From the information in the charge, the facts of the case against the Appellants are that they, on the 10/5/2010, at Oloko-Agwape village in Yala Local Government Area, conspired to and unlawfully assembled, caused malicious damage and stole a motorcycle, 12 goats, two (2) bicycles and bush meat, property of Oganode Awoko Ipuole. Five (5) witnesses testified for the prosecution at the trial and, at the end of their evidence, a no case submission was made on behalf of the Appellants, ruling on which resulted in the present appeal as stated above.

The Appellants’ notice of appeal filed on the 12/3/2012, contains seven (7) grounds of appeal from which six (6) issues are said to arise for determination in the appeal at paragraph 3.1 on page 4 of the Appellant’s brief filed on the 31/5/2012. They are as follows:-

1) Whether there was legally admissible evidence before the lower court based upon which the lower court held that prosecution has made out a prima facie case for the accused persons to answer?

2) Whether the lower court was correct in picking and choosing between the violently conflicting evidence of the prosecution witnesses to enable him overrule the no case submission?

3) Whether the prosecution was able to prove beyond reasonable doubt all the essential elements of each of the offences the appellants were charged with?

4) Whether the lower court was not in error in not discharging and acquitting all the appellants in all the counts on the ground that the prosecution’s evidence was so discredited by cross examination that no reasonable tribunal could convict upon it?

5) Whether the failure of the prosecution to call vital witnesses was not fatal to her case which should have resulted in the appellants’ discharge and acquittal?

6) Whether the lower court did not fall into error in failing to discharge and acquit the appellants on grounds of poor investigation of the matter by the police?

In the Respondent’s brief filed on 15/4/2013 but deemed on 17/9/2013, a lone issue is said to arise for decision in the appeal, thus:-

“whether from the evidence on record the Prosecution/Respondent made out a prima facie case against the Accused/Appellants to warrant their defence.”

Clearly, all the issues submitted by the learned counsel for the Appellants above are subsumed and concisely contained in the sole issue formulated by the Respondent’s issue. Since the primary complaint and attack on the decision of the High Court by the Appellants is that it was wrong in law to have overruled their no case submission, the crucial issue that calls for decision is whether that decision is right or wrong in law.

In Criminal Procedure and Practice, the law is now elementary that an accused person will only be called upon by the court to enter a defence to any charge/s for which he stands trial, if at the close of the evidence by the prosecution in proof of the charge/s, it appears to it that a case which warrants explanations from him, has been made out or shown by the evidence and which in the absence of such explanations, will be sufficient in law for conviction for the charge/s.