OKO V THE STATE

OKO V THE STATE


IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, 5TH MAY, 2017


Appeal No: SC.68/2014

CITATION:

Before Their Lordships:

MARY UKAEGO PETER-ODILI, JSC

OLUKAYODE ARIWOOLA, JSC

KUMAI BAYANG AKA’AHS, JSC

AMINA ADAMU AUGIE, JSC

SIDI DAUDA BAGE, JSC


BETWEEN

EDE OKO
(APPELLANT)

AND

THE STATE
(RESPONDENT)


PRONOUNCEMENT


A. APPEAL
1. Interference with Concurrent Findings of Facts – Instances where the Supreme Court will interfere with concurrent findings of fact(s) by Lower Courts

The law settled that the Supreme Court, this noble Court, will not interfere with concurrent findings of facts made by the trial Court and the Court of Appeal unless such findings are perverse; or are not supported by the evidence; or are reached as a result of a wrong approach to the evidence; or as a result of a wrong of application of any principle of substantive law or procedure. See Arabambi v. Advance Beverages Ind. Ltd (2005) 19 NWLR (Pt. 959) 1 per ONNOGHEN, J.S.C (as he then was) at (P 46, C-E). Per BAGE, JSC. read in context

B. CONSTITUTIONAL LAW
2. Right to Fair Hearing – How the right to fair hearing cannot be said to have been breached where an Appellant fails to raise objection to an irregularity
Whether a party who had an opportunity of being heard but did not utilize it can bring an action for breach of fair hearing

Learned counsel for the Appellant contends that merely adopting the unwritten address and not having it read in Open Court breached the Appellant’s right of fair hearing. This argument cannot be sustained as in adopting the address by learned counsel for the Appellant in Open Court, the Appellant is presumed to be seized of the contents of what was adopted and he cannot now turn around to say he was not heard and his constitutional right to fair hearing breached. Again to be said, if there was an irregularity in that procedure, the Appellant had opportunity to raise objection thereto, therefore he cannot now complain at this appeal stage having gone along the procedure which he had no problem with then and which he now says is irregular. See Oguno v. State (2013) 15 NWLR (Pt. 1376) 1 at 24; Durwode v State (2000) 15 NWLR (Pt. 691) 457 at 488. Per PETER-ODILI, JSC. read in context

C. CRIMINAL LAW AND PROCEDURE
3. Arraignment – The implication of Section 309(3) Criminal Procedure Law (CPL) of Cross River State                                                                    Whether failure to seek consent of the trial judge in arraigning an accused raises an issue of jurisdiction which can be raised on appeal

Looking at the above arguments from both counsels, there are two issues to be considered by this Court, whether failure to seek the consent of the trial judge in arraigning the Appellant is fatal and can render the trial to be struck out for want of jurisdiction and whether this issue can be raised on appeal for the first time in this Court.
Section 309(3) provides that:-

“(3) If an information preferred otherwise than in accordance with the provisions of Sub-section (2) of this Section has been filed by the registrar the information shall be liable to be quashed.
Provided that:-

(a) ….

(b) Where a person is convicted on any information or on any count of an information, that information or count shall not be quashed under this Section in any proceedings on appeal, unless application is made at the trial that it should be so quashed.”

It is pertinent to state that, the trial judge before arraignment of the Appellant ordered prosecution to file certified true copy of all the proceedings that took place at the Magistrate’s Court together with the exhibit to enable him determine whether or not he can assume jurisdiction. See page 38 of the record. Sequel to that, on the 9th June, 2011, the trial judge ruled that:-

“At the stage where the matter was struck out I do not see any injustice that will occasion the accused person if the charges are pursued in this Court.”

This Court is satisfied that the trial judge, based on the above facts had impliedly consented and given his directives in respect to the procedure provided under Section 309(2) (b) above. However, failure from the Respondent to seek for consent of the judge cannot be said to have rendered the trial a nullity and liable to be struck out. In Anthony Okoro v. State (2012) 7 NCC page 184. This Court held that:

“There is a distinction between a matter of procedure that affects substantial justice in the trial of a case and a matter of procedure which in no way affects the justice of the trial of a case.”

See also Idemudia v. State (1999) 7 NWLR (Pt. 610) 202. Litigants should expect no technical but substantial justice from this Court. We have said several times that we are not a workshop for technical justice. Over and over again, we have reiterated the need to do substantial justice and avoid delving into the error of technicalities, see for example the case Of National Revenue Mobilization Allocation and Fiscal Commission (N.R.M.A.F.C) v. Johnson (2007) 49 W.R.N. pages 169-170 where per PETER-ODILI, JCA (as he then was) opined as follows:-

“… The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to now pursue the course of substantial justice. See Makeri Smelting Co. Ltd v. Access Bank (Nig.) Plc (2002) 7 NWLR (Pt. 766) 447 at 476-477… The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because a blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.” See also Ajakaiye v. Idehia (1993) 8 NWLR (Pt. 364) 504, Arta Ind. Ltd v. N.B.C.I. (1997) 1 NWLR (Pt. 483) 574, Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46, Benson v. Nigeria AGIP Co. Ltd (1982) 5 S.C. 1.”

In the case at hand the Respondent’s failure to seek the consent of the judge does not in any way affect the justice of the trial. Therefore the Appellant cannot rely on the provisions of Section 309 (2) (b) above. See also Egbedi v. The State (1981) 11-12 SC 98 and Ajayi v. Zaria N. A No. 2 (1964) NNLR 61. In Gbedi v. State above, this Court held that:-

“It is settled law that an accused person who acquiesced to an irregular procedure that did not lead to miscarriage of Justice cannot complain of the procedure on appeal.”

In this case the proper procedure as provided under Section 309(3) has not been followed. The Section provides thus:-

“(3) If an information preferred otherwise than in accordance with the provisions of Sub-section (2) of this Section has been filed by the registrar the information shall be liable to be quashed – provided that
(a) ….

(b) Where, person is convicted on any information or any count of an information, that information, or count shall not be quashed under this Section in any proceedings on appeal, unless application is made at the trial that it should be so quashed.”

In Adejobi vs State (2 11) 12 NWLR at page 351 this Court held that:-

“A question of law and jurisdiction can be raised at anytime in the proceedings, but it is not a free for all procedure. Where a Statute under which an issue or matter is to be raised has provided a procedure for raising such issue or matter, that procedure and no other, must be followed. In the instant case, the procedure that must be followed to quash the information or count was as provided under Section 340 (2)(b) of the Criminal Procedure Law, Cap 39 Laws of Oyo State, 2000. Failure to apply to quash it at the trial Court rendered both the grounds of appeal on that point and the issue raised thereon incompetent. Indeed the Court of Appeal has no jurisdiction to quash any information or count unless there has been an application to quash it at the trial.”

However, in Jov v. Dom (1999) 9 NWLR (Pt. 620) 538 at 541, this Court held that a question of law and jurisdiction can be raised at any time in the proceedings, but it is not on a free for all procedure. Per BELGORE, JSC at p.547 paras C-E. has this to say:-

“This is so in order to avail the other side every opportunity to advert to that issue. But to contend that issue of law or the Constitution can be raised at anytime and do nothing more than to raise it in argument is like laying a disrupting ambush for the opponent. This is not the spirit of our practice of adjudication of holding the even balance. Proper application must be made so that the other side will know clearly what he has to meet. In the present appeal, the Appellant introduced ground 5 on lack of jurisdiction by trial Court, a matter not raised in the appellate High Court and in the Court of Appeal. It came like a bird out of the whirlwind, why was this not raised at the High Court or at the Court of Appeal.”

As stated earlier, I am satisfied that, failure of the Respondent to seek consent of justice Ita E. E. does not invalidate the trial. Per BAGE, JSC. read in context

4. Arraignment – The position of the law on object of arraignment
What is the object of an arraignment

The object of arraignment in terms of Section 215 of the Criminal Procedure Law is to ensure that justice is done to the accused ensuring that he understands the charge against him and so as to enable him to make his defence. Per BAGE, JSC. read in context

5. Arraignment – Statutory provision on what is required for a valid arraignment of an accused person
Requirements for a valid arraignment

…the Appellant questions the validity of the arraignment of accused/Appellant on the ground that the record did not show who read the charge to the Appellant and also that the Record did not show that charge was explained to the Appellant and as mandatorily required by law. In this regard a resort to the provisions of Sections 36(b) (a) of the CFRN and Section 209 CPL which have prescribed what is required for a valid arraignment of an accused person. This Court and I dare say other Courts have followed a path in its interpretation of these provisions which are:
a. The accused must be present in Court unfettered unless there is a compelling reason to the contrary.

b. The charge must be read over to the accused in the language that he understands.

c. The charge should be explained to the accused to the satisfaction of the Court.

d. In the course of the explanation technical language must be avoided.

e. After requirements (a) – (d) above have been satisfied the accused will then be called upon to plead instantly to the charge.

I placed reliance on the case of Erekanure v. State (1993) 5 NWLR (Pt. 294) 385; Kajubo v. State (1988) 1 NWLR (Pt. 73) 721; Kalu v. State (1998) 13 NWLR (Pt. 583) 531 at 607-608. In this case of hand it was thus recorded:

“PLEA
Count 1 read to the accused person in English Language.
Each of the 14 accused persons says he/she understands the charge and pleads not guilty”

The Appellant states that exact words of the Appellant ought to have been recorded and the Court also state who read out the charge and the explanation of what is contained in the charge put across to the Appellant before compliance with Section 209 CPL would be said to have been met. What the Appellant is seeking is a rigid and inflexible approach in the application of the law before full compliance would be said to have been carried out. That is, neither the intendment of the legislature nor within the spirit of the law itself which in my view and in keeping with interpretations already made thereto is that a substantial compliance showing that what is expected has been done is all the law ask of the Court of trial. From the record it is apparent that the charge was read and explained to each and every of the 14 accused persons of which Appellant was one, each of them understood the charge and each pleaded “not guilty.” The provisions of Sections 209 CPL have been complied with as there is nothing on the record to indicate that Appellant did not know the nature of the offence he was called upon to defend. A narrow and strict interpretation of the provisions and application of Section 209 CPL would not serve the interest of justice but would defeat the course of justice. There is no need to put down all the minute details of what took place at the plea taking, such as the language of explanation and who made the explanation and the issue of the satisfaction of the judge that accused was explained to and he understood. It is sufficient that substantial compliance was in effect. See James Edun & Ors. v. I.G.P. (1966) 1 ALL NLR 17; Idemudia v State (1999) 7 NWLR (Pt. 610) 202; Peter v State (1997) 12 NWLR (Pt. 531) 1; Aladu v. State (1998) 8 NWLR (Pt. 563) 618. The arraignment was well conducted as borne out record and it satisfied the requirements of Section 209 of CPL. Per PETER-ODILI, JSC. read in context

6. No Case Submission – The reaction of the Court where no case is made against a defendant at the close of evidence
When a submission of no case to answer will succeed

The law is settled that if at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the defendant sufficient to require him to make a defence, the Court shall, as to that particular charge discharge him. In Ajuluchukwu v. The State (2012) 7 WCC 281 the Court of Appeal on when a no submission will be upheld, stated that:-

“Where there has not been any evidence to establish the essential ingredients of the alleged offence, or the evidence of the prosecution has become manifestly unreliable after cross-examination, that it cannot reasonably be basis for conviction, the Respondents should be discharged without being called upon for defence.” Per BAGE, JSC. read in context

7. No Case Submission – What the Court should be satisfied with in a no case submission
What has to be considered in a no case submission

In Abogede v. The State (1996) 5 NWLR (Pt. 118) page 270 at 280 the Supreme Court held that:-

“When a Court is giving consideration to a submission of no case, it is not necessary at that stage of the trial for the learned trial judge to determine if the evidence is sufficient to justify conviction. The trial Court only has to be satisfied that there is a prima facie case requiring at least some explanation from the accused person.”

See also R. V. Ogucha (1959) 4 FSC pg 64. In Shatta v. F.R.N. (2009) 3 NCC 527 the Court of Appeal held that:-

“Without going into the credibility of the witnesses called by the prosecution, but based on the evidence presented before the trial Court, it is my view that the Court does not have to believe the evidence adduced by the prosecution at this stage but the issue to be determined is that if the case for the prosecution is believed is there anything for the Appellant to explain.” Per BAGE, JSC. read in context

8. No Case Submission – The duty of the Judge in a submission of no case
Duty of the trial court where a no case submission has been made on behalf of an accused person

There are several decisions of this Court warning against the discharge of accused persons after a submission of no case to answer particularly when it is clear from the evidence adduced that the facts disclose some explanation which the accused has to make in view of what the prosecution has so far established from the evidence. In The Queen v. Ogucha (1959) 4 FSC 64 Abbott F. J. stated that:-

“It is the judge’s duty however, when a submission of no case to answer is made to discharge an accused where the evidence adduced by the prosecution does not disclose the necessary minimum evidence establishing the facts of the crime charged. In doing so, the judge does not write judgment. It is not the judge’s job, at that stage, to weigh and evaluate evidence or decide who is telling the truth or who is lying and is not to conclude that the prosecution is unreliable.” Per BAGE, JSC. read in context

9. No Case Submission – Need for Courts to be brief while ruling on a no case submission

The Court below was correct in its handling of the matter as he had to keep within strict limits in order not to veer into the unchartered territory in the trial since the substantive matter had not been concluded and even the defence of the Appellant was not before the Court. A warning along those lines has been put in place in the case of Odofin Bello v. State (1967) NMLR 2 at 3 per Ademola CJN, thus:

“After the prosecution had closed its case, the submissions were made to the learned trial Judge that prima facie case had not been made out to put the accused persons on their defence. In a Ruling of inordinate length the learned Judge ruled against these submissions and called upon the accused persons for their defence. Whilst it is not the aim of this Court to discourage a Judge from discussing matter of interest in his judgment, we would like to warn against any ruling of inordinate length in a submission of no case to answer, as too much might be said, as was done in this case which at the end of the case might fetter the Judges (sic) discretion… It is wiser to be brief and make no observations on the facts. See R. V. Ekanem 13 WACA 108 at 109”

See also Dabo v. State (1977) 5 SC 122. Ogoja v. C.O.P. (1975) 11 SC 74. Per PETER-ODILI, JSC. read in context

10. No Case Submission – What the Court usually considers in a no case submission                                                                                                           What has to be considered in a no case submission

What a Court usually considers where a no-case submission is made, is whether the Prosecution has made out a prima facie case requiring, at least, some explanation from an Accused – see Tongo v. C.O.P. 12 NWLR (Pt. 1049) 525 SC. A prima facie case in a criminal trial is one that has proceeded up to where it will support findings if evidence to the contrary is disregarded, and prima facie evidence means evidence, which on the face of it, is sufficient to sustain the charge against the Accused – see Abacha v. State (2002) 11 NWLR (Pt. 779) 437 SC, and Ajidagba v. Inspector general of Police (1958) SCNLR 60, where this Court quoted with approval the definition in the Indian case of Star Sigh v. Jitendrana-thsen (1931) I.L.R. 59, as follows –

What is meant by prima facie (case)? It only means that there is ground for proceeding – But 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 guilty, and the 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. Per AUGIE, JSC. read in context

11. Arraignment – How a Counsel that refuses to raise the issue of lack of consent in the Trial Court when he had the opportunity cannot do so at Appeal
Whether failure to seek consent of the trial judge in arraigning an accused raises an issue of jurisdiction which can be raised on appeal

The Appellant urges this Court to quash the information as the Respondent had failed to obtain the consent and/or direction of a judge of the High Court of Cross River State before filing the information against the Appellant. This Appellant contends robbed the Court of trial of jurisdiction to entertain the charge. Also Appellant posits the issue being that of jurisdiction can be raised at any stage and time. While it is not in dispute that jurisdiction as an issue can be raised at any time or state of proceedings including the appeal stage such as here at the Apex Court but this matter regarding whether or not the consent of the judge was obtained before preferment of the charge can be done and it being a condition precedent to the validity of the charge is a matter that has to be taken advisedly, that is taken, bearing in mind the peculiar circumstances and facts of the particular case. The relevant statute under review in Section 309 (2) of the Criminal Procedure Law (CPL) of Cross River State which provides thus:

“No information charging a person with an indictable offence shall be preferred unless-

(a) …

(b) The information is preferred by the direction or with the consent of a judge or pursuant to an order made under part 30 to prosecute the person charged for perjury.”

As regard quashing a charge, the procedure that must be followed to achieve this is clearly spelt out in Section 309(3) of the CPL. The Section provides inter-alia:

“(3) If an information preferred otherwise than in accordance with the provisions of Sub-section (2) of this Section has been filed by the register the information shall be liable to quashed:
Provided that-

(a) …

(b) Where a person is convicted on any information or on any count of an information, that information or count shall not be quashed under this Section in any proceedings on appeal, unless application is made at the trial that it should be so Quashed.”

A retracting of the path trod at the trial Court is that the information was filed at the trial High ourt on 24th February, 2011 and came up before Ita, J for the first time on 11th March, 2011. Before the arraignment of the accused/Appellant on 30th June, 2011 the question arose on the jurisdiction of the Court regards being taken to the fact that the charge was earlier on before the Magistrate Court Yahe. After hearing addresses of counsel on whether or not the High Court per Ita J had jurisdiction, the learned trial Judge ruled that he had and that the prosecution would be continued in the said High Court. That is the High Court assumed jurisdiction and the plea was taken. However the issue on whether the prior consent or direction of the High Court was obtained before the information was preferred was not brought up. This therefore impels one to agree with the learned counsel for the Respondent that to now bring up the matter of a lack of jurisdiction of the High Court on account of the failure to obtain the said consent at this point and time is like the Appellant splitting the jurisdictional question piece meal and in different Courts. That is, what I see happening and in my humble view a party cannot be allowed to partition his cause of action in bits and pieces. A cause of action cannot be tackled in a fragmented procedure and as in this case in a manner to support a change of course of the case of the party as he goes along. A situation such as could arise would create a never ending litigation which goes against the general principle that there must be an end to litigation and parties know their stand one way or the other. I call in the aid the case of Ejifodomi v. Okonkwo (1982) 12 NSCC 422 per Aniagolu, JSC, which details I shall give hereunder-

In that case before the District Court of Kano State the argument was raised that the Court had no jurisdiction to hear the case because the premises in dispute were residential and cannot be categorized as business premises.
The District Judge ruled that he had jurisdiction because the premises were business premises. The defendant appealed and the High Court Kano allowed the appeal. The plaintiffs appealed to the Court of Appeal which allowed the appeal and set aside the judgment of the Kano State High Court. On appeal to the Supreme Court, the Appellant sought to substitute and argue two new points of law on jurisdiction and title. The Supreme Court refused and the dictum or part thereof, the Court’s decision anchored by Anigolu, JSC is set hereunder, viz:

“In the instant appeal, the general issue before the District Court was one of jurisdiction. A challenge to the jurisdiction of a Court could be based on varied and diverse points, for example

(a) That the judge was not properly appointed;
(b) That the matter in issue is outside the limits of the territorial jurisdiction of the Court;
(c) That the claim is above the justiciable power of the adjudicating Court;
(d) That the period allowed the Court to embark upon the hearing of the case has expired etc.

Each issue there is a matter of jurisdiction but quite different, one from another. The specific point in this appeal on which the objection to the jurisdiction of the Court was based and challenged by the defence, was that the premises was a Residential premises, the adjudication in respect of which, by reason of the provisions of the Rent Control Law, 1977 (Section 12), came under the exclusive jurisdiction of the Rent Tribunal; to which argument the plaintiff countered with the assertion that the premises was Business premises, coming under the jurisdiction of the District Court. Issue was joined on this contention. It remained the issue throughout before the District Court; the High Court, and the Federal Court of Appeal. It was a specific point within the general issue of jurisdiction. Parties have fought their case, right up to this Court on that point.

Having regard to all the foregoing, I cannot see that this Court should allow the Appellant to jettison before this Court, the issue on which the parties fought their case all the way to the Appeal Court – an issue on which she lost all the way. To do so would amount, an effect, to allowing her to commence an entirely new case before this Court. There must, in the public interest, be an end to litigation (interest republicae ut sit finis litium) and it is my view that to allow this new issue, under Section 39 of the Land Use Act, to be raised at this stage, is not to further, but to hinder, that public interest.” Clearly this partition or fragmentation of the jurisdictional question is one to which the Appellant is estopped from embracing. It is all the more foreclosed as counsel had the time and opportunity of raising the issue of the lack of consent in the trial Court and failed to do so. He lost his chance which he cannot call up as the fancy takes him. See Ijale v. A-G Leventis & Co. Ltd (1961) 1 ALL NLR 762 at 769-770. Per PETER-ODILI, JSC. read in context

D. EVIDENCE
12. Prima Facie Case – Meaning of prima facie case

In Aduku v. F.R.N. (2009) 4 NCC 350 on the meaning of prima facie case the Court of Appeal has this to say:-

“What is meant by Prima Facie case? It only means that there is a ground for proceedings… but a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is finally guilty or not… and the evidence discloses a prima facie case when it is such that uncontradicted and if believed it will be sufficient to prove the case against the accused.”

See on this Dr. Olu Onagoruwa v. The State (1993) 7 NWLR (Pt. 303) 19 at 80-83. Per BAGE, JSC. read in context


LEAD JUDGMENT DELIVERED BY BAGE, JSC


This is an appeal against the ruling of the Court of Appeal, Calabar Judicial Division delivered on the 19th of November, 2013, in Appeal No. CA/C/76C/2012. The Court of Appeal affirmed the ruling of the High Court of Cross River State sitting at Ogoja.

The Appellant, Ede Oko along with 13 other accused persons were arraigned before Justice E. E. Ita of Cross River High Court, charged with conspiracy, unlawful assembly, malicious damage and stealing contrary to Sections 20(6), 70, 541 and 390 (9) of the Laws of Cross River State Nigeria 2004 respectively.

The Appellant and the other 13 accused persons denied both counts. At the trial, the prosecution called a total of five (5) witnesses while a no case submission was made on behalf of the Appellants. After hearing and evaluation of the testimonies of the five witnesses, the learned trial judge over-ruled the no case submission and requested the Appellants to enter their defence.

Dissatisfied with the ruling, the Appellant appealed to the Court of Appeal. The Court affirmed the ruling of the High Court and dismissed the appeal.

This appeal is against that ruling. From the information in the charge, the facts of the case against the Appellant are that they, on the 10th May 2010, at Oloko-Agwape village in Yala Local Government Area, conspired to and unlawfully assembled, caused malicious damage and stole a motorcycle, twelve (12) goats, two (2) bicycles and bush meat, property of Oganode Awoko Ipuole.

The Appellant on the 30th April, 2015, filed his brief of argument and formulated five issues for determination in his appeal.

“1. Whether the trial Court has jurisdiction to try the Appellant when the consent or direction of High Court Judge of Cross River State was not obtained as required by Section 309 (2) (b) of the Criminal Procedure Law, Cap. C17, Laws of Cross River State of Nigeria, 4 (the CPL) before the information was filed?

2. Whether the purported arraignment and taking of the plea of the Appellant was valid in law (Ground 5).

3. Whether the written address and the reply on the no case submission did not breach the Appellant’s right to fair hearing and thereby consequently rendering the entire trial a nullity (Ground 6).

4. Whether the decision of the Court below “to be very brief and to restrict itself” in reviewing the argument does not amount to a denial of the right to fair hearing of the Appellant, and thus rendering the judgment of the Court below arrived at in such circumstances liable to be set aside? (Ground 3).

5. Whether, having regard to the entire circumstances of this case, the Court below was correct in affirming the ruling of the trial Court and thereby calling upon the Appellant to enter his defence? (Ground 12 and 4).”

However, the Respondent in his brief of argument filed on the 8th January, 2016 formulated the following issues for determination.

“1. Whether the failure to obtain the direction or consent of a Judge to prefer the information in this case can be raised for the first time in this Court regard being had to the provision of Section 309 (3) (b) of the Criminal Procedure Law, Cap. C17, Vol. 3, Laws of Cross River State, 2004 (Jurisdiction issue).

2. Was the Appellant arraignment in compliance with the provisions of Section 309 of the Criminal Procedure Law (Arraignment issue) (Ground 5).

3. Considering the facts, did the learned trial judge infringe on the Appellant’s right to a fair hearing as to validate a nullification of the proceedings? (fair hearing issue) (Grounds 3 and 6).

4. Were the learned Justices of the Court below right in dismissing the no case submission and affirming the decision of the learned trial judge on the ground that a prima facie case has been made out against the Appellant? (Dismissal of case submission issue) (Ground 1, 2 and 4)”

Looking at the two sets of issues above, it shows clearly that learned counsel for the parties appeared to be ad idem on the issues. They ask the same questions. I shall accordingly rely on the Appellant’s issues in considering this appeal.

At the hearing of the appeal, learned counsel for the Appellant adopted his brief and urged this Court to allow the appeal, while learned counsel for the Respondent adopted the Respondent’s brief and urged this Court to dismiss the appeal and affirm the concurrent ruling of both Courts below.

ISSUE 1

“Whether the trial Court has jurisdiction to try the Appellant when the consent or direction of a High Court Judge of Cross River State was not obtained as required by Section 309 (2) (b) of the Criminal Procedure Law Cap. C17, Laws of Cross River State of Nigeria, 2004 before the information was filed?”

Learned counsel to the Appellant argued that, this is an issue of jurisdiction and as such, the leave of the Court is not required before same can be raised. He relied on decision of the Court in Benson Agbule V. Warri Refinery & Petrochemical Co. Ltd (2012) LPELR 20625 (SC) at P.13.

He further argued that, the trial was not initiated by due process of law as the condition precedent to the exercise of the jurisdiction of the trial Court was not fulfilled. He cited Section 309(2) (b) of C L.

He submitted that, it is apparent from the record that no such consent or direction was obtained before the Respondent filed the information against the Appellant. At least, no such consent or direction of the High Court of Cross River State forms part of the record.

He argued that, it is trite that the content of the record of proceedings of a Court are binding on the Court and the parties, and in appellate Court, which is always bound by the record and the record only.

He urged the Court to hold that failure of the Respondent to obtain consent of a judge of High Court of Cross River State before filing the information against the Appellant robbed the trial Court of the jurisdiction to try the Appellant. Finally he submitted that the information is liable to be quashed and this Court should quash same and strike out this action for want of jurisdiction.

On the other hand, learned counsel for the Respondent submitted that, the above arguments canvassed by the Appellant are misleading, although he admitted that the issue of jurisdiction can be raised at any time during the course of proceedings, he submitted that it is not free for all procedure particularly where there is a procedure to be followed in raising the objection.

He also argued that this issue is a non starter, even though the Appellant was represented by counsel throughout the trial, this issue was not raised, he cannot now raise it. It is dead on arrival.

He further submitted that the Appellant cannot, as he seeks to do, split in piecemeal his objection to the jurisdiction of the lower Court. The jurisdiction argument must be made as a whole, not in bits and pieces. He finally submitted that the Appellant is precluded from contending non-compliance with Section 309(2) (b) of the CPL as a basis for invalidating the proceedings. Had the Appellant counsel exercised reasonable diligence, he would have made this argument as addition in his challenge to the jurisdiction of the Court. But he did not, and cannot now do so. He urges the Court to reject the Appellant’s submission and hold that the trial was validly undertaken before the trial Court.

Looking at the above arguments from both counsels, there are two issues to be considered by this Court, whether failure to seek the consent of the trial judge in arraigning the Appellant is fatal and can render the trial to be struck out for want of jurisdiction and whether this issue can be raised on appeal for the first time in this Court.

Section 309(3) provides that:-

“(3) If an information preferred otherwise than in accordance with the provisions of Sub-section (2) of this Section has been filed by the registrar the information shall be liable to be quashed. Provided that:-

(a) ….

(b) Where a person is convicted on any information or on any count of an information, that information or count shall not be quashed under this Section in any proceedings on appeal, unless application is made at the trial that it should be so quashed”.

It is pertinent to state that, the trial judge before arraignment of the Appellant ordered prosecution to file certified true copy of all the proceedings that took place at the Magistrate’s Court together with the exhibit to enable him determine whether or not he can assume jurisdiction. See page 38 of the record. Sequel to that, on the 9th June, 2011, the trial judge ruled that:-

“At the stage where the matter was struck out I do not see any injustice that will occasion the accused person if the charges are pursued in this Court.”

This Court is satisfied that the trial judge, based on the above facts had impliedly consented and given his directives in respect to the procedure provided under Section 3 9(2) (b) above.

However, failure from the Respondent to seek for consent of the judge cannot be said to have rendered the trial a nullity and liable to be struck out.

In Anthony Okoro v. State (2012) 7 NCC page 184. This Court held that:

“There is a distinction between a matter of procedure that affects substantial justice in the trial of a case and a matter of procedure which in no way affects the justice of the trial of a case.”

See also Idemudia v. State (1999) 7 NWLR (Pt. 610) 202. Litigants should expect no technical but substantial justice from this Court. We have said several times that we are not a workshop for technical justice. Over and over again, we have reiterated the need to do substantial justice and avoid delving into the error of technicalities, see for example the case of National Revenue Mobilization Allocation And Fiscal Commission (N.R.M.A.F.C) v. Johnson (2007) 49 W.R.N. pages 169-170 where per PETER-ODILI, JCA (as he then was) opined as follows:-

“… The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to now pursue the course of substantial justice. See Makeri Smelting Co. Ltd V. Access Bank (Nig.) Plc (2002) 7 NWLR (Pt. 766) 447 at 476-477… The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because a blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.”

See also Ajakaiye v. Idehia (1993) 8 NWLR (Pt. 364) 504, Arta Ind. Ltd v. N.B.C.I. (1997) 1 NWLR (Pt. 483) 574, Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46, Benson v. Nigeria Agip Co. Ltd (1982) 5 S.C. 1.”
In the case at hand the Respondent’s failure to seek the consent of the judge does not in any way affect the justice of the trial. Therefore the Appellant cannot rely on the provisions of Section 309 (2) (b) above. See also Egbedi v. The State (1981) 11-12 SC 98 and Ajayi v. Zaria N. A No. 2 (1964) NNLR 61.

In Egbedi v. State above, this Court held that:-

“It is settled law that an accused person who acquiesced to an irregular procedure that did not lead to miscarriage of Justice cannot complain of the procedure on appeal.”

In this case the proper procedure as provided under Section 309(3) has not been followed. The Section provides thus:-

“(3) If an information preferred otherwise than in accordance with the provisions of Sub-section (2) of this Section has been filed by the registrar the information shall be liable to be quashed – provided that

(a) ….

(b) Where, person is convicted on any information or any count of an information, that information, or count shall not be quashed under this ection in any proceedings on appeal, unless application is made at the trial that it should be so quashed.”

In Adejobi vs State (2011) 12 NWLR at page 351 this Court held that:-

“A question of law and jurisdiction can be raised at anytime in the proceedings, but it is not a free for all procedure. Where a Statute under which an issue or matter is to be raised has provided a procedure for raising such issue or matter, that procedure and no other, must be followed. In the instant case, the procedure that must be followed to quash the information or count was as provided under Section 340 (2) (b) of the Criminal Procedure Law, Cap 39 Laws of Oyo State, 2000. Failure to apply to quash it at the trial Court rendered both the grounds of appeal on that point and the issue raised thereon incompetent.

Indeed the Court of Appeal has no jurisdiction to quash any information or count unless there has been an application to quash it at the trial.”

However, in Jov v. Dom (1999) 9 NWLR (Pt. 620) 538 at 541, this Court held that a question of law and jurisdiction can be raised at any time in the proceedings, but it is not on a free for all procedure. Per BELGORE, JSC at p.547 paras C-E. has this to say:-

“This is so in order to avail the other side every opportunity to advert to that issue. But to contend that issue of law or the Constitution can be raised at anytime and do nothing more than to raise it in argument is like laying a disrupting ambush for the opponent. This is not the spirit of our practice of adjudication of holding the even balance. Proper application must be made so that the other side will know clearly what he has to meet. In the present appeal, the Appellant introduced ground 5 on lack of jurisdiction by trial Court, a matter not raised in the appellate High Court and in the Court of Appeal. It came like a bird out of the whirlwind, why was this not raised at the High Court or at the Court of Appeal.”

As stated earlier, I am satisfied that, failure of the Respondent to seek consent of justice Ita E. E. does not invalidate the trial. This is hereby resolved in favour of the Respondent.

ISSUE 2, 3 and 4 will be taken together

“ISSUE 2

Whether the purported arraignment and taking of the plea of the Appellant was valid in law.

ISSUE 3.

Whether the written address and the reply on the no case submission did not breach the Appellant’s right to fair hearing and hereby consequently rendering the entire trial a nullity.

ISSUE 4.

Whether the decision of the Court below to be very brief and to restrict itself in reviewing the arguments canvassed in the Appellant’s brief of argument does not amount to a denial of the right of fair herring of the Appellant, and thus rendering the judgment of the Court below arrived at in such circumstances liable to be set aside.”

Learned counsel for the Appellant submitted that a cursory look at the record will reveal that the trial of the Appellant did not commence with the arraignment of the accused. He argued, this is in breach of the settled principle of procedure for arraignment in criminal matters. He submitted that the trial did not comply with the provisions of Section 36(6) (a) of the Constitution of the Federal Republic of Nigeria 1999. He urged the Court to discharge and acquit the Appellant.

On the third Issue, learned counsel submitted that the entire proceedings leading to the overruling the Appellant’s “No submission” at the trial Court is violated by the manner in which the no case submission was rendered by the Appellant’s and Respondent’s counsel. The learned trial judge by permitting both counsels to the Appellant and Respondent to file the written address and reply, breached the constitutionally-entrenched provision relating to Appellant’s right to fair hearing.

He also argued that it behooves on the Court below to give a full and comprehensive consideration of all the issues and argument canvassed in the Appellant’s brief of argument and pronounce on them. Failure to do so, as the Court below had done in the instant appeal, is tantamount to not hearing the appeal at all. This failure, he argued no doubt breached the Appellant’s right to fair hearing and resulted to a miscarriage of justice. He cited Longe v. F.B.N. PLC (2016) 6 NWLR (Pt. 1189) 1 at p.20 para H-P 21.

Learned counsel submitted that had the Court below fully reviewed the arguments and issues canvassed in the Appellant’s brief of argument, there is no doubt that it would have come to a different conclusion. He urged this Court to resolve the issue raised herein in favour of the Appellant and set aside the ruling of the Court below.

In his response, learned counsel for the Respondent on issue of arraignment contended that, the arraignment of the Appellant complied substantially with the provisions of Section 209 of the C L and this suffices to validate the arraignment. He cited Erekanure v. State (1993) 5 NWLR (Pt. 294) 385 and James v. Edun & Ors (1996) 1 All NLR 17. He submitted that as the record indicated, the proceedings were conducted in the English Language, a language which from available evidence on the record, the Appellant understands perfectly. He finally submitted that the arraignment of the Appellant is proper, valid and complies with Section 209 of the CPL.

The learned counsel argued that there can be no merit in the Appellant’s complaint that the trial was not conducted in public simply because the written address was adopted and not read open Court, as a matter of fact, adoption of written address is so deeply entrenched in the practice and procedure of our superior Courts, he cited Obodo v. Olomu (1987) 3 NWLR (Pt. 5911).

He further argued that it was the Appellant who first filed a written address apparently without an express order of Justice Ita, he appeared to have done so of his own accord.

He submitted that Appellant cannot turn around to complain about the alleged irregularity. If anything, he has acquiesced in, or waived his right to complain. He urge the Court to reject the Appellant’s contention that he was not accorded a fair hearing in the consideration of this case by both the trial High Court and the Court below. The proceedings were entirely fair.

Determination of the issues.

The object of arraignment in terms of Section 215 of the Criminal Procedure Law is to ensure that justice is done to the accused ensuring that he understands the charge against him and so as to enable him to make his defence.

In Chikaodi Madu v. The State (2012) NCC at 553 this Court on the essential requirement of valid arraignment enumerated conditions for valid arraignment:

“(a) The accused must be placed before the Court unfettered unless the Court shall see cause otherwise to order.

(b) The charge or information shall be read over and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court; and

(c) The accused shall then be called upon to plead instantly thereto unless of course, there exist any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the Court is satisfied that he has in fact not been duly served therewith.”

See also Olabode v. State (2009) 4 NCC 199, Ogunye v. State (1999) 5 NWLR (Pt. 604) 518 Monsuru Solola & Ors v. State, 22 NSCQR 254 at pp. 289-290.

Looking at pages 62-63 of the record, this is what transpired in the trial Court when the Appellant was arraigned.

“J – I Ushie for the State

J – I Ofen & C Odey for the accused plea

Count 1 read to accused persons in English Language. Each of the 14 accused persons says he/she understands the charge and pleads not guilty.

Count 2 Read to the accused persons in English Language.

Each of the 14 accused persons says he/she understands the charge and pleads not guilty. Count 3 Read to accused persons in English Language.

Each of the 14 accused persons says he/she understands the charge and pleads not guilty. Count 4 Read to accused persons in English Language.

Each of the 14 accused persons says he/she understands the charge plead not guilty.”

From the foregoing, this Court is satisfied that what transpired at page 62 of the record in this case is in conformity with provision of the law above. The Appellant has not furnished this Court with any evidence or fact to prove his claim.

The charge having been read over and explained to both accused persons in English Language and each of them pleaded not guilty thereto, I find it difficult to conceive how the arraignment of the accused persons can be faulted. Without doubt, it would have been preferable for the learned trial judge to have recorded the plea of each of the accused persons separately in the direct speech. However, failure to do this cannot be fatal to their plea so long as the charge was read over and over and explained to them, whether jointly or separately, and they both understood the same and each of them individually entered his plea thereto. It would not matter, whether the Court’s record which described the event was written in direct or reported speech. See Udeh v. State (1999) 7 NWLR (Pt. 609) Anthony Okoro v. The State (supra) National Revenue Mobilization A Ocation And Fiscal Commission v. Johnson (supra).

The authorities do not say that it must be recorded that the charge was read and explained to the accused to the satisfaction of the Court (as claimed by the Appellant) before proceeding to record his plea thereto. Without doubt it is good practice for the trial Court to record that “the charge was read and fully explained to the accused to the satisfaction of the Court” but I do not think the failure to record will render the trial nullity. See Eyisi v. State (2000) 15 NWLR (Pt. 691) 555.

On the issue of filing and adopting written address as permitted by the trial judge in which the Appellant claimed to have contravened Section 36(1), (3) & (4) of the Constitution of the Federal Republic of Nigeria. This Court found no merit in the claim. As a matter of fact, adoption of written address is a practice of this Court and other lower Courts.

Rules of different Courts have made provisions for filing and adoption of written address. In this case, Order 33 Rules 1-6 of the High Court (Civil Procedure) Rules of Cross River State and Order 30 Rules 13, 14, 15 and 16 of the same law stipulates the time within which each party shall file its written address. Once the written address is adopted, it is taken as read.

This Court will not waste time in resolving this issue against the Appellant.

On the basis of the above, issues 2, 3 and 4 are hereby resolved in favour of the Respondent.

ISSUE 5

“Whether having regard to the entire circumstances of this case, the Court below was correct in affirming the ruling of the trial Court and thereby calling upon the Appellant to enter his defence.

The learned counsel for the Appellant argued that, the law is settled that before an accused person can be called upon to enter his defence, the prosecution must have established a prima facie case against the accused where the prosecution failed to establish a prima facie case against the accused, such an accused would not be called upon to enter his defence. He cited UBANATU v. C.O.P. (2000) 2 NWLR (Pt. 643) 115 at 128 G. He further argued that where a prima facie case was not made out against an accused, a submission of no case to answer made by such an accused person ought to be upheld by a trial Court and such accused person be discharged and acquitted.”

He submitted that, evidence of PW1 and PW2 which was relied upon by the trial Court to hold that there was conspiracy is unreliable. No reasonable Tribunal could have safely convicted the Appellant on such unreliable evidence on the crucial issue of the actual commission of the offence. He finally urged this Court to resolve this issue in favour of the Appellant.

On the contrary, learned counsel for the Respondent contended that an in-depth evaluation of the evidence adduced by the prosecution at the trial does not support the Appellant’s contention. He argued that the primary consideration at the stage of a no case to answer submission is not whether the evidence laid by the prosecution would sustain a conviction but whether, on the strength of the evidence, the prosecution has established a prima facie against the defendant.

He holds that evidence disclosed a ‘prima facie case’ when it is such that if un-contradicted and if believed, will be sufficient to prove the case against the Respondent.

He finally submitted that the Court below rightly affirmed the findings of fact made by the trial Court. He urged this Court to find that the Appellant has been properly called to defend the charges against him, his no case submission was rightly dismissed by the Court below.

The law is settled that if at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the defendant sufficient to require him to make a defence, the Court shall, as to that particular charge discharge him.

In Ajuluchukwu v. The State (2012) 7 WCC 281 the Court of Appeal on when a no submission will be upheld, stated that:-

“Where there has not been any evidence to establish the essential ingredients of the alleged offence, or the evidence of the prosecution has become manifestly unreliable after cross-examination, that it cannot reasonably be basis for conviction, the Respondents should be discharged without being called upon for defence.”

In the case at hand, the prosecution called a total of five witnesses out of which PW1 and PW2 were eye witnesses.

PW1 in giving his testimony stated as contained in pages 63-64 of the record, thus:

“On 10/5/2 10 at about 7:20am, I left Echumoga village to Echumofana to write my Senior School Certificate Examination. I saw a large crowd including the accused persons. They carried stick and cutlasses…I saw the accused singing war songs and breaking my father’s buildings. 3rd accused person was holding a gun.

4th accused person was holding my younger brother Awoko Joseph by his hand. I asked 4th accused why he was holding my brother and he said if I did not keep quiet he will kill me. He asked me whether my wife did not pass to me the message he, 4th accused, sent through her. 3rd accused pointed the gun he was holding at me and said if I did not keep quiet he will shoot me. He shot unto the air to show me he was serious. I was afraid and ran away to Yegu village and informed my elder brother, Fidelis Awoko, about what was happening in our compound. Fidelis and I left to the Police station, Area Command, Ogoja where we laid a complain. A Police man (Agara) accompanied us to Oloko Ogwobe village where the incident took place. When we got to Oloko Ogwobe we met the crowd at Adamode’s compound. 8th accused person told the Police that they were more than those we met there. That the Police should go and bring truck to accommodate all of them.

Accused persons destroyed three zinc houses and four huts in my father’s compound. They used sticks to hit and destroy the building. They used their hands and cutlasses to cut the huts.

I was leaving at Echumoga until trouble started between my father and Oloko people. The people wrote a petition against my father and we were invited to the Local Government Council Office. It was because of that problem that I and my brothers left Oloko. I went to leave at Echumoga.

Apart from the building, they damage a motorcycle, two bicycles and many other things I cannot remember the value of the properties damaged. My elder brother would know that.”

PW2 in giving his testimony, after corroborating what PW1 had earlier said, stated that he had a grinding machine, cushion chairs, box and 12 goats which were all missing. See pages 69-70.

Looking at the testimonies of PW1 and PW2 above, (which was not discredited during cross-examination) I am left with no doubt that the prosecution has established a prima facie case against the accused persons.

In Abogede v. The State (1996) 5 NWLR (Pt. 118) page 270 at 280 the Supreme Court held that:-

“When a Court is giving consideration to a submission of no case, it is not necessary at that stage of the trial for the learned trial judge to determine if the evidence is sufficient to justify conviction. The trial Court only has to be satisfied that there is a prima facie case requiring at least some explanation from the accused person.”

See also R. V. Ogucha (1959) 4 FSC pg 64. In Shatta v. F.R.N. (2009) 3 NCC 527 the Court of Appeal held that:-

“Without going into the credibility of the witnesses called by the prosecution, but based on the evidence presented before the trial Court, it is my view that the Court does not have to believe the evidence adduced by the prosecution at this stage but the issue to be determined is that if the case for the prosecution is believed is there anything for the Appellant to explain.”

In Aduku v. F.R.N. (2009) NCC 350 on the meaning of prima facie case the Court of Appeal has this to say:-

“What is meant by prima Facie case? It only means that there is a ground for proceedings …but a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is finally guilty or not… and the evidence discloses a prima facie case when it is such that uncontradicted and if believed it will be sufficient to prove the case against the accused.”

See on this Dr. Olu Onagoruwa v. The State (1993) 7 NWLR (Pt. 303) 19 at 80-83.

There are several decisions of this Court warning against the discharge of accused persons after a submission of no case to answer particularly when it is clear from the evidence adduced that the facts disclose some explanation which the accused has to make in view of what the prosecution has so far established from the evidence.

In The Queen v. Ogucha (1959) 4 FSC 64 Abbott F. J. stated that:-

“It is the judge’s duty however, when a submission of no case to answer is made to discharge an accused where the evidence adduced by the prosecution does not disclose the necessary minimum evidence establishing the facts of the crime charged. In doing so, the judge does not write judgment. It is not the judge’s job, at that stage, to weigh and evaluate evidence or decide who is telling the truth or who is lying and is not to conclude that the prosecution is unreliable”.

The learned trial judge in his ruling at page 97 of the record stated that:-

“Count 1 is one of conspiracy. The evidence of PW1 and PW2 is that the accused persons gathered at the village square and from there moved on to damage the houses of PW2. A Court can infer conspiracy from the fact of doing things together upon that inference I can convict the accused persons, so they owe me an explanation which I call upon them now to offer”.

On the 2nd count of unlawful assembly, the trial judge found in his ruling at pages 97-98 that:-

“These pieces of evidence show that people, including the accused persons gathered with sticks and cutlasses and moved up to the gate of PW2. They started breaking the house of PW2. It is only left for me to decide whether they conducted themselves in such a manner as to cause persons in the neighbourhood to fear on reasonable ground that the persons so assembled will turn tumultuously disturb the peace or that they will provoke other persons tumultuously to disturb peace. There is prima facie evidence from the above evidence in support of this charge and I call upon the accused persons to offer their explanations.”

Learned trial judge found, however, on the third count in his ruling at page 98 that:-

“Count 3 is for malicious damage to property par 1 & 2 said they saw the accused person destroying the property of PW.2. Counsel for the accused persons fell into error in his address when he went into how the properly was damage. Whether by breaking down or by fire. This is not the stage for that. Section 451 of the Criminal Code Law under which the charge is laid does not make such distinction. There is prima facie evidence put in by the prosecution that accused persons can be convicted, if believed. Accused persons are called upon to offer this defence.”

On the last count, i.e. stealing the trial Court found that:-

“PW2 said the above items were in his house when the accused persons destroy his house and that after the destruction, he could no longer find those items in his house. This is prima facie evidence of stealing those items. It is now, time for the accused persons to tell me what happened, and if they do not, I can convict them on the evidence of PW.2 alone.”

This well respected view of the learned trial judge was also affirmed by the Court below where the Court in its judgment dismissed the appeal and affirmed the ruling of the trial High Court.

The law settled that the Supreme Court, this noble Court, will not interfere with concurrent findings of facts made by the trial Court and the Court of Appeal unless such findings are perverse; or are not supported by the evidence; or are reached as a result of a wrong approach to the evidence; or as a result of a wrong of application of any principle of substantive law or procedure. See Arabambi v. Advance Beverages Ind. Ltd (2005) 19 NWLR (Pt. 959) 1 per ONNOGHEN, J.S.C (as he then was) at (P 46, C-E).

It is my conclusion in the circumstances that since the Appellant has not been able to show these findings to be perverse; this Court cannot interfere with the decisions of both Courts below.

In the end, I am satisfied that the learned Justices of the Court of Appeal were right in affirming the ruling of the trial Court, on the evidence presented by the prosecution.

The case of no case submission is hereby over-ruled. Appeal dismissed.

PETER-ODILI, JSC

I am in complete agreement with the judgment just delivered by my learned brother, Sidi Dauda Bage, JSC and to show my support for the reasoning I shall make some remarks of my own.

This appeal is against the judgment of the Court of Appeal, Calabar Division or Court below delivered on the 19th November, 2013, Coram Mohammed Lawal Garba, JCA, C. C. Nweze, JCA (as he then was) and Onyekachi A. Otisi, JCA affirming the Ruling of E. E. Ita J. of the Cross River State High Court, Ogoja Division delivered on 5th March 2012 in which the accused/Appellant’s no case submission was dismissed.

BACKGROUND FACTS

The Appellant and thirteen (13) persons (the co-accused) were charged for the offences of conspiracy contrary to Section 520(6), unlawful assembly contrary to Section 70, Malicious Damage contrary to Section 451 and stealing contrary to Section 390(9) of the Criminal Code, Cap C16, Vol. 3, Laws of Cross River State of Nigeria, 2004. The information which was not dated can be found at pages 2-3 of the Record. There is nothing on the Record to show that the information was preferred by the direction or consent of a Judge of the High Court of Cross River State as required by Section 309(2) (b) of the Criminal Procedure Law, Cap C17 Laws of Cross River State of Nigeria, 2004 (the “CPL”)

The Appellant and the co-accused persons were arraigned on June, 30, 2011 before the Trial Court for the offences mentioned in Paragraph 2.1 hereof. The Appellant was arraigned as the 11th accused.

The brief facts of the case as can be gleaned from the counts of the information are that on May, 2010, at Oloko-Agwape Village in Yala Local Government Area of Cross River State, the Appellant with the co-accused persons allegedly conspired to and unlawfully assembled, caused malicious damage to three (3) zinc houses and four (4) huts, property of Ogamode Awko Ipuole and stole a Daylong Motorcycle, twelve (12) goats, two (2) bicycles and bush meat, property of Ogamode Awoko Ipuole.

At the Trial Court, the matter first came up before the trial Court on March 11, 2011 but the arraignment of the Appellant did not take place on the said date. The matter suffered four (4) further adjournments before the Appellant was finally arraigned. The Appellant attended Court on the said dates. On June 30, 2011, when the Appellant was arraigned along with the co-accused person, the record shows as follows:

“PLEA:

Count 1 read to the accused person in English Language. Each of the 14 accused persons says he/she understands the charge and pleads not guilty.

Count 2 read to the accused persons in English Language. Each of the 14 accused persons says he/she understands the charge and pleads not guilty.

Count 3 read to the accused persons in English Language. Count 4 read to the accused persons in English Language. Each of the 14 accused persons says he/she understands the charge and pleads not guilty.

The Respondent called five witnesses who testified as PW1, PW2, PW3, PW4, and PW5. The Respondent’s witnesses also rendered several items and documents which were admitted by the trial Court and marked as Exhibit “1 to 25.” The Respondent thereafter closed its case.

When the case came up on February 7, 2012 at the trial Court, the following transpired:

“Odey: We have filed a written no case submission.

Odey: Adopts the written submission as his address to the Court.

Prosecution to file reply within 14 days Seven days to file rejoinder, if need be. Adjourned to 1/3/2012 for Ruling.”

The written “No cases submission” filled by counsel to the Appellant can be found at pages 40-51 of the Record while the reply filed by the Respondent can be found at pages 52-55 of the record.

There is no indication on the Record that the Respondent adopted its Reply or that the Written “No case submission” and the Reply were read in the open Court. On March 5, 2012, the trial Court delivered the Ruling overruling the “No case submission” and consequently called upon the Appellant to enter his defence.

At the Court Below

The Appellant was dissatisfied with the Ruling of the trial Court and thus, filed his Notice of Appeal dated March 8, 2012, of seven grounds.

The Appellant’s Brief of Argument dated May 30, 2012 and filed on May 31, 2012 can be found at pages 140-161 of the Record. The Respondent’s Brief of Argument dated and filed on April 15, 2013 was deemed properly filed and served on September 7, 2013.

At the Court below, the Appellant contended that no prima facie case was made out against him. The Appellant argued that where, in a criminal case, such as this, the Respondent failed to establish a prima facie case against him, the trial Court was duty-bound to discharge and acquit him. On its part, the Respondent argued that a prima facie case was made out against the Appellant and that the trial Court was right to have called upon the Appellant to enter his defence.

The fuller details of the facts are captured in the lead judgment and there is no need to go into them.

Learned counsel for the Appellant, Fred Onuobia, Esq. on the 9th day of the February, 2017 adopted his brief of argument filed on 30/4/2015 and a reply brief of 12/2/2016. In the brief, learned counsel distilled five issues for determination, viz:

1. Whether the trial Court has jurisdiction to try the Appellant when the consent or direction of a High Court Judge of Cross River State was not obtained as required by Section 309(2)(b) of the Criminal Procedure Law, Cap C17, Laws of Cross River State of Nigeria. 2004 (the “CPL”) before the information was filed?

2. Whether the purported arraignment and taking of the plea of the Appellant was valid in law? (Ground 5).

3. Whether the Written Address and the Reply on the “No Case Submission” did not breach the Appellant’s right to fair hearing and thereby consequently rendering the entire trial a nullity? (Ground 6).

4. Whether the decision of the Court below “to be very brief and to restrict itself” in reviewing the arguments canvassed in the Appellant’s brief of argument does not amount to a denial of the right to fair hearing of the Appellant, and thus rendering the judgment of the Court below arrived at in such circumstance liable to be set aside? (Ground 3).

5. Whether, having regard to the entire circumstances of this case, the Court below was correct in affirming the Ruling of the trial Court and thereby calling upon the Appellant to enter his defence? (Ground 1, 2 and 4)

Godwin Omoaka, Esq. for the Respondent adopted its brief of argument filed on the 8/1/2016 and deemed filed on 16/3/2016 and raised four issues for determination including the first issue on jurisdiction.
1. Whether the failure to obtain the direction or consent of a Judge to prefer the information in this case can be raised for the first time in this Court regard being had to the provision of Section 309(3) (b) of the Criminal Procedure Law, Cap. C17, vol. 3. Laws of Cross River State, 2004. (Jurisdiction Issue)

2. Was the Appellant’s arraignment of the Appellant in compliance with the provisions of Section 209 of the Criminal Procedure Law? (Arraignment issue) Ground 5.

3. Considering the facts, did the learned trial Judge infringe on the Appellant’s right to fair hearing as to validate a nullification of the proceedings? (Fair Hearing Issue) Ground 3 and 6.

4. Were the learned Justices of the Court below right in dismissing the no case submission and affirming the decision of the learned trial Judge on the ground that a prima facie case has been made out against the Appellant? (Dismissal of no case submission issue) Grounds 1, 2 and 4.

I shall utilize the issues as crafted by the Respondent for ease of reference.

ISSUE 1

Whether the failure to obtain the direction or consent of a Judge to prefer the information in this case can be raised for the first time in this Court regard being had to the provision of Section 309(3) (b) of the Criminal Procedure Law, Cap. C. 17, vol. 3, Laws of Cross River State, 2004.

Fred Onuobia, Esq. of counsel for the Appellant contended that the issue under discourse being of jurisdiction, leave of Court is not required before it can be raised by the Appellant. He cited Benson Agbule v. Warri Refinery & Petrochemical Co. Ltd (2012) LPELR-20625 (SC) 13; Alhaji Tsoho Dan Amale v. Sokoto Local Government (2012) LPELR 7842 (SC) P.23.

That it is well settled that certain conditions must co-exist before a Court of law would be seized of the jurisdiction and be competent to entertain an action in Court, be it criminal or civil. He referred to Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Western Steel Works Ltd v. Iron & Steel Workers Union of Nigeria (1986) 3 NWLR (Pt. 30) 617.

That there is nothing on the record to show that the requisite consent and/or direction of the Court in the framing of the information had robbed the Court of jurisdiction to entertain the action. That is that the failure is fatal to the proceedings. He cited Ogolo v Fubara & Ors (2003) 11 NWLR (Pt. 831) 231 or 264; Sapo & Anor. v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374 at 395; Garuba v Omokhodion & Ors. (2011) 15 NWLR (Pt. 1269) 145 at 180.

In answer, learned counsel for the Respondent, Godwin Omoaka, Esq. submitted that the Criminal Procedure Law has expressly provided to be followed in the raising of an objection such as the one the Appellant is making. He cited Section 309 (3) of the CPL.

That because the Appellant had not raised the objection prior to preferring of the information, he is estopped from doing so now at this stage. He relied on Wahabi Adejobi & Anor v State (2011) 12 NWLR (Pt. 1261) 347: Gafar v. U.A.C. Limited (1961) ALL NLR 814 etc.

It was also submitted for the Respondent that the Appellant at the trial Court had raised a general point on jurisdiction which that Court considered and overruled and the Appellant did not take it up at the appellate lower Court and so cannot now bring up the issue of jurisdiction from a new point not taken up at any of the two Courts below. That to allow what the Appellant is seeking is to open a new vista in the litigation and produce the result of a pending litigation.

The Appellant urges this Court to quash the information as the Respondent had failed to obtain the consent and/or direction of a judge of the High Court of Cross River State before filing the information against the Appellant. This Appellant contends robbed the Court of trial of jurisdiction to entertain the charge. Also Appellant posits the issue being that of jurisdiction can be raised at any stage and time. While it is not in dispute that jurisdiction as an issue can be raised at any time or state of proceedings including the appeal stage such as here at the Apex Court but this matter regarding whether or not the consent of the judge was obtained before preferment of the charge can be done and it being a condition precedent to the validity of the charge is a matter that has to be taken advisedly, that is taken, bearing in mind the peculiar circumstances and facts of the particular case. The relevant statute under review in Section 309 (2) of the Criminal Procedure Law (CPL) of Cross River State which provides thus: “No information charging a person with an indictable offence shall be preferred unless-

(a)…………..

(b) The information is preferred by the direction or with the consent of a judge or pursuant to an order made under part 30 to prosecute the person charged for perjury.”

As regard quashing a charge, the procedure that must be followed to achieve this is clearly spelt out in Section 309(3) of the CPL. The Section provides inter-alia:

“(3) If an information preferred otherwise than in accordance with the provisions of Sub-section (2) of this Section has been filed by the register the information shall be liable to quashed: Provided that-

(a) …….

(b) Where a person is convicted on any information or on any count of an information, that information or count shall not be quashed under this Section in any proceedings on appeal, unless application is made at the trial that it should be so quashed”.

A retracting of the path trod at the trial Court is that the information was filed at the trial High Court on 24th February, 2011 and came up before Ita, J for the first time on 11th March ,2011. Before the arraignment of the accused/Appellant on 30th June, 2011 the question arose on the jurisdiction of the Court regards being taken to the fact that the charge was earlier on before the Magistrate Court Yahe. After hearing addresses of counsel on whether or not the High Court per Ita J had jurisdiction, the learned trial Judge ruled that he had and that the prosecution would be continued in the said High Court. That is the High Court assumed jurisdiction and the plea was taken. However the issue on whether the prior consent or direction of the High Court was obtained before the information was preferred was not brought up. This therefore impels one to agree with the learned counsel for the Respondent that to now bring up the matter of a lack of jurisdiction of the High Court on account of the failure to obtain the said consent at this point and time is like the Appellant splitting the jurisdictional question piece meal and in different Courts. That is, what I see happening and in my humble view a party cannot be allowed to partition his cause of action in bits and pieces. A cause of action cannot be tackled in a fragmented procedure and as in this case in a manner to support a change of course of the case of the party as he goes along. A situation such as could arise would create a never ending litigation which goes against the general principle that there must be an end to litigation and parties know their stand one way or the other. I call in the aid the case of Ejifodomi v. Okonkwo (1982) 12 NSCC 422 per Aniagolu, JSC, which details I shall give hereunder-

In that case before the District Court of Kano State the argument was raised that the Court had no jurisdiction to hear the case because the premises in dispute were residential and cannot be categorized as business premises.

The District Judge ruled that he had jurisdiction because the premises were business premises. The defendant appealed and the High Court Kano allowed the appeal. The plaintiffs appealed to the Court of Appeal which allowed the appeal and set aside the judgment of the Kano State High Court. On appeal to the Supreme Court, the Appellant sought to substitute and argue two new points of law on jurisdiction and title. The Supreme Court refused and the dictum or part thereof, the Court’s decision anchored by Anigolu, JSC is set hereunder, viz:

“In the instant appeal, the general issue before the District Court was one of jurisdiction. A challenge to the jurisdiction of a Court could be based on varied and diverse points, for example

(a) That the judge was not properly appointed;
(b) That the matter in issue is outside the limits of the territorial jurisdiction of the Court;
(c) That the claim is above the justiciable power of the adjudicating Court;
(d) That the period allowed the Court to embark upon the hearing of the case has expired etc.

Each issue there is a matter of jurisdiction but quite different, one from another. The specific point in this appeal on which the objection to the jurisdiction of the Court was based and challenged by the defence, was that the premises was a Residential premises, the adjudication in respect of which, by reason of the provisions of the Rent Control Law, 1977 (Section 12), came under the exclusive jurisdiction of the Rent Tribunal; to which argument the plaintiff countered with the assertion that the premises was Business premises, coming under the jurisdiction of the District Court. Issue was joined on this contention. It remained the issue throughout before the District Court; the High Court, and the Federal Court of Appeal. It was a specific point within the general issue of jurisdiction. Parties have fought their case, right up to this Court on that point.

Having regard to all the foregoing, I cannot see that this Court should allow the Appellant to jettison before this Court, the issue on which the parties fought their case all the way to the Appeal Court – an issue on which she lost all the way. To do so would amount, an effect, to allowing her to commence an entirely new case before this Court. There must, in the public interest, be an end to litigation (interest republicae ut sit finis litium) and it is my view that to allow this new issue, under Section 39 of the Land Use Act, to be raised at this stage, is not to further, but to hinder, that public interest”.

Clearly this partition or fragmentation of the jurisdictional question is one to which the Appellant is estopped from embracing. It is all the more foreclosed as counsel had the time and opportunity of raising the issue of the lack of consent in the trial Court and failed to do so. He lost his chance which he cannot call up as the fancy takes him. See Ijale v. A-G Leventis & Co. Ltd (1961) 1 ALL NLR 762 at 769-770.

This issue is resolved against the Appellant.

ISSUE 2

Was the Appellant’s arraignment in compliance with the provisions of Section 209 of the Criminal Procedure law of Cross River State.

Learned counsel for the Appellant submitted that the trial of an accused commences with the arraignment and in this instance seeing that commencement of the trial Court did not comply with Section 36(6) (a) of the 1999 Constitution (as amended) and Section 209 of the Criminal Procedure Law of Cross River State, 2004. That in this case the record did not show who read the charge to the Appellant, how that the charge was explained to the Appellant and the exact words in pleading recorded. These learned counsel contended were fundamental defects which vitiated the arraignment warranting a vitiation of the trial. He cited; Okolie v. The State (2012) 1 NWLR (Pt. 1281) 385 at 398; Edibo v. The State (2007) 13 NWLR (Pt. 1051) 306 at 326; Ogunye v. State (1999) 5 NWLR (Pt. 604) 548 at 565.

For the Respondent, learned counsel said the arraignment of the Appellant was substantially complaint with the law as borne out by the record. He cited; James Edun & Ors. v. I.G.P. (1966) 1 ALL NLR 17; Idemudia v. State (1999) 7 NWLR (Pt. 610) 202; Peter v. State (1997) 12 NWLR (Pt. 531) 1;Kalu v State (1998) 12 NWLR (Pt. 583) 531 etc.

In this issue the Appellant questions the validity of the arraignment of accused/Appellant on the ground that the record did not show who read the charge to the Appellant and also that the Record did not show that charge was explained to the Appellant and as mandatorily required by law.

In this regard a resort to the provisions of Sections 36(b) (a) of the CFRN and Section 209 CPL which have prescribed what is required for a valid arraignment of an accused person. This Court and I dare say other Courts have followed a path in its interpretation of these provisions which are:

a. The accused must be present in Court unfettered unless there is a compelling reason to the contrary.

b. The charge must be read over to the accused in the language that he understands.

c. The charge should be explained to the accused to the satisfaction of the Court.

d. In the course of the explanation technical language must be avoided.

e. After requirements (a) – (d) above have been satisfied the accused will then be called upon to plead instantly to the charge.

I placed reliance on the case of Erekanure v. State (1993) 5 NWLR (Pt. 294) 385;Kajubo v. State (1988) 1 NWLR (Pt. 73) 721; Kalu v. State (1998) 13 NWLR (Pt. 583) 531 at 607-608.

In this case of hand it was thus recorded:

“PLEA
Count 1 read to the accused person in English Language.

Each of the 14 accused persons says he/she understands the charge and pleads not guilty”

The Appellant states that exact words of the Appellant ought to have been recorded and the Court also state who read out the charge and the explanation of what is contained in the charge put across to the Appellant before compliance with Section 209 CPL would be said to have been met.

What the Appellant is seeking is a rigid and inflexible approach in the application of the law before full compliance would be said to have been carried out. That is, neither the intendment of the legislature nor within the spirit of the law itself which in my view and in keeping with interpretations already made thereto is that a substantial compliance showing that what is expected has been done is all the law ask of the Court of trial.

From the record it is apparent that the charge was read and explained to each and every of the 14 accused persons of which Appellant was one, each of them understood the charge and each pleaded ‘not guilty”. The provisions of Sections 209 CPL have been complied with as there is nothing on the record to indicate that Appellant did not know the nature of the offence he was called upon to defend. A narrow and strict interpretation of the provisions and application of Section 209 CPL would not serve the interest of justice but would defeat the course of justice. There is no need to put down all the minute details of what took place at the plea taking, such as the language of explanation and who made the explanation and the issue of the satisfaction of the judge that accused was explained to and he understood. It is sufficient that substantial compliance was in effect.

See James Edun & Ors. v. I.G.P. (1966) 1 ALL NLR 17; Idemudia v State (1999) 7 NWLR (Pt. 610) 202; Peter v State (1997) 12 NWLR (Pt. 531) 1; Aladu v. State (1998) 8 NWLR (Pt. 563) 618.

The arraignment was well conducted as borne out record and it satisfied the requirements of Section 209 of CPL. This issue is resolved against the Appellant.

ISSUES 3 & 4

Considering the facts, did the learned trial Judge infringe on the Appellant’s right to fair hearing as to validate a nullification of the proceedings.

Were the learned Justices of the Court below right in dismissing the no case submission and affirming the decision of the learned trial Judge on the ground that a prima facie case has been made out against the Appellant.

It was the contention of the learned counsel for proceedings leading to the overruling of the Appellant’s. “No Case Submission” at the trial Court is vitiated by the manner in which that “No Case Submission” was rendered by counsel on either side. That the trial judge allowing both counsel to file the written address and reply breached the right to fair hearing of the Appellant since those addresses were not read in Open Court. He referred to Section 36(6) (1), (3) & (4) of the 1999 CFRN; In Re: Lawal (2013) LPELR-1998 (SC); Mika’ilu v. The State (2001) 8 NWLR (Pt. 715) 469 at 484.

Mr. Onuobia of counsel further submitted that the Court below’s failure to give a full and comprehensive consideration of the issues and arguments canvassed in the Appellant’s brief of argument and pronounce on them breached Appellant’s right to fair hearing and resulted in a miscarriage of justice. He cited Longe v. F.B.N. Plc (2010) 6 NWLR (Pt. 1189) 1 or 20; Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522 at 546-547.

Learned counsel for the Respondent, Godwin Omoaka, Esq. submitted that the adoption of written addresses is good enough compliance with the principle of fair hearing as stated in Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111.

For the Respondent, it was argued that it is well settled that it is undesirable for a judge to deliver a lengthy ruling on a no case submission and so the lower Court was right in limiting its comments only on the needful. He referred to Odofin Bello v. State (1967) NMLR 2 at 3; Ogoja v. C.O.P. (1975) 11 SC 74.

That on the dismissal of a no case submission the consideration at the stage is not whether the evidence laid by the prosecution would sustain the conviction but whether on the strength of the evidence the prosecution has established a prima facie case against the defence.

For the Respondent it was stated that what the Appellant seeks to be done at this stage is not so permitted as it would into entering on unchartered arena when the not proffered his evidence which would jeopardize the entire proceeding. He cited Duru v. Nwosu (1989) 1 NWLR (Pt. 113) 24 or 41; Ajidagba v. I.G.P. (1958) 3 FSC 5 etc.

Learned counsel for the Appellant contends that merely adopting the unwritten address and not having it read in Open Court breached the Appellant’s right of fair hearing. This argument cannot be sustained as in adopting the address by learned counsel for the Appellant in Open Court, the Appellant is presumed to be seized of the contents of what was adopted and he cannot now turn around to say he was not heard and his constitutional right to fair hearing breached. Again to be said, if there was an irregularity in that procedure, the Appellant had opportunity to raise objection thereto, therefore he cannot now complain at this appeal stage having gone along the procedure which he had no problem with then and which he now says is irregular. See Oguno v. State (2013) 15 NWLR (Pt. 1376) 1 at 24; Durwode v State (2000) 15 NWLR (Pt. 691) 457 at 488.

The Appellant also quarrels with the brevity with which the judgment of the Court of Appeal was rendered and the learned M. L. Garba, JCA stated his reasons for doing so in these words:

“It may be observed that I have been very brief and restrictive in my review of the submissions by learned counsel as contained in their respective briefs of argument. I am mindful of the fact that this appeal is interlocutory in the sense that the charges against the Appellants before the High Court have not been determined on the merit since the guilt or otherwise of the Appellants for the offence they were charged with his not been determined in the decision appealed against. Just like the law has cautioned trial Courts before when submissions of a no case to answer were made of the close of the prosecution evidence in criminal trials not to embark on the (sic) detailed forensic examination assessment or evaluation of the one sided evidence adduced before it at that stage, this Court is also required by law not to encroach on the undecided substantive issues in a case before a Court in the determination of an interlocutory appeal from the case.”

The Court below was correct in its handling of the matter as he had to keep within strict limits in order not to veer into the unchartered territory in the trial since the substantive matter had not been concluded and even the defence of the Appellant was not before the Court. A warning along those lines has been put in place in the case of Odofin Bello v. State (1967) NMLR 2 at 3 per Ademola CJN, thus:

“After the prosecution had closed its case, the submissions were made to the learned trial Judge that prima facie case had not been made out to put the accused persons on their defence. In a Ruling of inordinate length the learned Judge ruled against these submissions and called upon the accused persons for their defence. Whilst it is not the aim of this Court to discourage a Judge from discussing matter of interest in his judgment, we would like to warn against any ruling of inordinate length in a submission of no case to answer, as too much might be said, as was done in this case which at the end of the case might fetter the Judges (sic) discretion… It is wiser to be brief and make no observations on the facts. See R. V. Ekanem 13 WACA 108 at 109”

See also Dabo v. State (1977) 5 SC 122. Ogoja v. C.O.P. (1975) 11 SC 74.

Indeed the less said after this point, the better as the matter at the trial Court is still in a way on going.

From the foregoing and the better reasoning in the lead judgment, this appeal lacks merit and is hereby dismissed.

I abide by the consequential orders made.

ARIWOOLA, JSC

I had the privilege of reading in draft the leading judgment just delivered by my learned brother, Sidi Bage, JSC. I agree entirely with the reasoning therein and the conclusion arrived thereat, that the appeal lacks merit and ought to be dismissed. The appeal is hereby dismissed by me. Appeal dismissed

AKA’AHS, JSC

This is an appeal against a no case submission which was overruled by the learned trial Judge and affirmed by the Court of Appeal, Calabar Division in appeal No. CA/C/76C/2012.

The Appellant and Oko Ogar Adama were the 11th and 7th accused respectively who were arraigned with 12 other accused persons before the Cross River State High Court Ogoja in Charge No. HU/2C/200 on a four count charge of Conspiracy, Unlawful Assembly, Malicious Damage and Stealing. Each of the accused pleaded not guilty to the charge. The prosecution called five witnesses and tendered some exhibits before closing its case. Thereafter learned counsel for the accused made a no case submission which was overruled by the learned trial Judge. The Appellants then appealed to the Court of Appeal but their appeals were dismissed. They separately appealed to this Court.

I have read the draft of the judgment of my learned brother, Bage JSC. I entirely agree with him that it is premature at this stage to consider the credibility of witnesses called by the prosecution. All that the trial Court and the appellate Courts are concerned with is whether there is prima facie evidence of the commission of an offence which requires an explanation from the accused (Appellant). See: The Queen v. Ogucha (1959) 4 FSC 64 where it was held that at the close of the case for the prosecution, the trial Court should consider, not whether the evidence against the accused is sufficient to justify a conviction, but whether it has made out a prima facie case requiring at least some explanation from the accused. The complaint about lack of fair hearing cannot be entertained now. See also:Ajidagba v. I.G.P. (1958) SC NLR 60; Tongo v. C.O.P. (2007) 12 NWLR (Pt. 1049) 525.

The appeal lacks merit and should be dismissed. I hereby dismiss same and remit the case to the Cross River State High Court Ogoja presided over by Justice E. E. Ita for defence. The case should be expeditiously dealt with.

AUGIE, JSC

I have had a preview of the lead judgment delivered by my learned brother – Bage, JSC and I agree with him that the Appeal lacks merit.

He dealt with the issues at stake in this Appeal, and I will only comment on the issue of no-case submission, and what that entails.

The Appellant and thirteen other Accused Persons were initially charged before the Yahe Chief Magistrate Court of Cross River State. The case was moved from the Chief Magistrate Court to High Court, Ogoja, wherein they pleaded not guilty to the Charge of conspiracy, unlawful assembly, malicious damage and stealing against them.

The Prosecution called five witnesses. At the close of its case, the Appellant and other Accused Persons opted to make a no-case submission, wherein they urged the High Court, Ogoja [trial Court] to hold that a prima facie case had not been made out against them.

By making the no-case submission at the trial Court, they, were, in effect, telling the trial Court one of two things or both, that is-

i. That there has been, throughout the trial, no legally admissible evidence linking them with the commission of the offence charged; and/or

ii. That the evidence as adduced by the Prosecution has been so discredited by cross-examination that no reasonable Court can safely convict on it.

What a Court usually considers where a no-case submission is made, is whether the Prosecution has made out a prima facie case requiring, at least, some explanation from an Accused – see Tongo v. C.O.P. 12 NWLR (Pt. 1049) 525 SC. A prima facie case in a criminal trial is one that has proceeded up to where it will support findings if evidence to the contrary is disregarded, and prima facie evidence means evidence, which on the face of it, is sufficient to sustain the charge against the Accused – see Abacha v. State ( 0 ) 11 NWLR (Pt. 779) 437 SC, and Ajidagba v. Inspector general of Police (1958) SCNLR 60, where this Court quoted with approval the definition in the Indian case of Star Sigh v. Jitendrana-thsen (1931) I.L.R. 59, as follows –

What is meant by prima facie (case)? It only means that there is ground for proceeding – But 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 guilty, and the 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.

In this case, it is clear from the details set out by my learned brother that the Prosecution established a prima case against the Appellant.

It is for this and the other reasons in the lead judgment that I also dismiss this Appeal and affirm the decision of the Court below.