MAI AJI V FRN

MAI AJI V FRN


IN THE COURT OF APPEAL
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS

ON FRIDAY, 13TH JULY, 2018


Suit No: CA/J/61C/2018

CITATION:

Before Their Lordships:

ADZIRA GANA MSHELIA

ADAMU JAURO

UCHECHUKWU ONYEMENAM


BETWEEN

AHMED MAI AJI
(APPELLANT)

AND

FEDERAL REPUBLIC OF NIGERIA
(RESPONDENT)


PRONOUNCEMENT


A. CRIMINAL LAW AND PROCEDURE
1. No Case Submission – Implication of a no-case submission
Position of the law on a no case submission

The law is settled that at the close of the prosecution’s case, the accused has an option if he believes that from the evidence adduced by the prosecution a prima facie case has not been established against him, to make a no case submission. A prima facie case means that there is ground for proceeding. In other words, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it prima facie suggests that the evidence produced so far indicates that there is something worth looking at. When a prima facie case is said to have been disclosed against an accused person, all that means is that there are grounds for proceedings with the trial. See Agbo V. State (2013) 11 NWLR (Pt. 1365) Pg. 377 at P. 394 paras C-D, Duru V. Nwosu (1989)4 NWLR (Pt. 113) 24.
A no case submission when made by an accused postulates one of two things, or both of them at once. Firstly, such a submission tantamounts to saying that there has been throughout the length and breadth of the case presented in Court by the prosecution, no legally admissible evidence led against the accused person on behalf of whom the submission was made to connect him in any way with the commission of the offence with which he has been charged, which would compel him being called upon to defend himself. Secondly, it may mean that whatever evidence there was which might have linked the accused person with the commission of the offence has been so discredited through cross-examination that no reasonable tribunal can be called upon to act on it, as establishing the guilt of the accused person or that such evidence is so manifestly unreliable such that no reasonable tribunal can safely convict on it. See Chianugo V. State (2002)2 NWLR (Pt. 250) 225 at 237 – 238, Agbo V. State (Supra) at Pg. 394 paras D-G.

In the instant case, the Appellant was arraigned before the lower Court for the offences of criminal breach of trust, criminal misappropriation and cheating contrary to Sections 311, 308 and 320 of the Penal Code, Laws of Borno State 1994. The prosecution in support of these charges led five (5) witnesses and tendered five (5) exhibits as well. PW1 testified that he engaged the services of the accused who is a lawyer and he collected the title document of his land. He testified further that one day he noticed development on the land and after he investigated he discovered the land was sold out to one Mallam Yusuf by the accused person through one Baba Mele Ismail (PW4). The evidence of PW2 supported the evidence of PW1 to the effect that the accused requested for title document of the land from Pw1 and the accused sold out the land to one Baba Yusuf. PW3 who was the purchaser of the land confirmed to the Court that he bought the land from the accused through one Mele. PW4 who is the person through whom the land was sold out testified before the Court that the accused invited him to his office and asked him to look for a buyer of the land, wherein he advertised to Bukar Yusuf (PW3) and they agreed on N3 Million. The Appellant gave an acknowledgement on a Memo pad titled “MAI AJI CHAMBERS” of having collected N450,000.00 from Mele Samaila (PW4). The acknowledgement was admitted as exhibit A. Furthermore the statement of the Appellant exhibit C and C1 confirmed that he collected about N400,000 from Mele (PW4). These pieces of evidence raised some questions which will require some explanation from the accused now Appellant. It is trite law that in a no-case submission, what is critical at that stage is not whether the evidence against the accused is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring the accused to make some explanation. At that stage, the question whether or not the Court believes the evidence led does not arise. The credibility of witnesses or weight to be attached to the evidence does not arise. The rationale is obvious the trial of the case has not yet been concluded for the issue of proof beyond reasonable doubt to arise. At that stage, all that is required is prima facie case. See F.R.N. V. Martins (2012) 14 NWLR (Pt. 1320) Pg. 287 @ Pp. 320-321 paras H-B, Ajiboye V. State (1995)8 NWLR (Pt. 414) 408; Ekwunugo V. F.R.N. (2008)15 NWLR (Pt. 1111) 630. In Agbo V. State (2013)11 NWLR (Pt. 1365)377 at 394 TO 395, the apex Court per FABIYI, JSC stated thus:

“The purport of a no case submission is that the Court is not called upon at that stage to express any opinion on the evidence before it. The Court is only called upon to take note and rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence charged. But if there is legally admissible evidence, however slight, the matter should proceed as there is something to look at. See: Igabele V. The State (Supra); Aituma V. State (2007) 5 NWLR (Pt. 1028) 466. At the stage of no case submission, credibility of prosecution witnesses should not be considered. It is not a stage where a Court can believe or disbelieve prosecution witnesses as the defence is yet to present its own witnesses. The Court is enjoined to avoid the temptation of being lured to pronounce on the merits or otherwise of the available evidence. A ruling on a ‘no case submission’ should not be of inordinate length. See: Ajiboye V. State (1995)9 SCNJ 442; (1995)8 NWLR (Pt. 414)408. I dare to say that ‘a no case submission’ should be determined within the narrow compass of the legally admissible evidence produced by the prosecution; and such should be based on its face value.”

See also Alex V. F.R.N. (2018)7 NWLR (Pt. 1618)228 at 241. In the instant case, from the evidence adduced by the prosecution before the lower Court a prima facie case of the offences charged has been made against the accused person and upon the presentation of such evidence, justice demands that the trial Court calls on the accused/Appellant to put up a defence on the alleged criminal breach of trust, criminal misappropriation and cheating. To this end, the lone issue is resolved against the Appellant and in favour of the Respondent. Per JAURO, JCA. read in context


LEAD JUDGMENT DELIEVERED BY JAURO, JCA


This is an appeal against the ruling of the Borno State High Court of Justice in Charge No.BOHC/MG/CR/30/2017 presided over by Honourable Justice A.Y. Mshelia delivered on the 11th day of December, 2017.

A summary of the facts that led to this appeal is to the effect that on the 14th of June, 2016 the Economic and Financial Crimes Commission (EFCC) received a complaint against the accused person (Appellant). The petition was to the effect that sometimes in 2016 the accused person having been entrusted with land documents belonging to the complainant in this case for the purpose of intervening in a land dispute between the complainant and another party and also for safe keeping, as part of the accused’s professional duties, he dishonestly disposed of that plot of land in violation of the trust reposed in him by the complainant. Pursuant of the above petition, the Economic and Financial Crimes Commission investigated the Appellant and found the need to prosecute him. The Appellant was arraigned before the lower Court on 13th day of June, 2017 based on a three (3) counts charge bordering on criminal breach of trust, criminal misappropriation and cheating contrary to Sections 311, 308 and 320 of the Penal Code, Laws of Borno State 1994 Cap. 102 respectively. The three counts charge read as follows:

“COUNT ONE

That you, Ahmed Mai Aji, sometimes in 2016 at Maiduguri, Borno State within the jurisdiction of this Honourable Court dishonestly disposes plot of land situated at Pompomeri commercial light industrial layout, Maiduguri, Borno State, covered by grant of Right of Occupancy No. BO/6057 of 79 1981, in which was kept in your custody for the purpose of discharging your responsibility, without any right to dispose same, contrary to and punishable under Section 311 and 312 of the Penal Code Law Cap. 102 Laws of the Borno State of Nigeria 1994 respectively. COUNT TWO

That you, Ahmed Mai Aji, sometimes in 2016 at Maiduguri within the jurisdiction of this Honourable dishonestly converted to your personal use the sum of N400,000 (Four Hundred Thousand Naira) only, being the proceeds from the sales of plot of land being in your possession for the purpose of discharging your professional duties contrary to and punishable under Sections 308 and 309 of the Penal Code Law Cap. 102, Laws of the Borno State of Maiduguri 1994 respectively.

COUNT THREE

That you, Ahmed Mai Aji, sometimes in 2016 at Maiduguri, Borno State within the jurisdiction of this Honourable Court dishonestly induces one Baba Yusuf Bukar to deliver to you the sum of N3,000,000 (Three Million Naira only), in the name of payment for a plot of land situated at Pompomeri commercial light industrial layout, Maiduguri, Borno State, covered by grant of Right of Occupancy No. BO/6057 of 79 1981, in which was kept in your custody for the purpose of discharging your responsibility, without any right to dispose same, contrary to and punishable under Sections 320 and 321 of the Penal Code Law Cap. 102, Laws of the Borno State of Maiduguri 1994 respectively.”

When the three count charge was read over to the accused/Appellant, he pleaded not guilty. The prosecution thereafter proceeded to call evidence in support of its case. In that regard, the prosecution called five (5) witnesses and tendered five (5) Exhibits. At the close of the prosecution’s case, the accused/Appellant made a no case submission. In considering the Appellant’s no case submission, the learned trial judge ruled that a prima facie case has been established against the accused/Appellant and thereby called upon the accused person to enter his defence in accordance with Section 192 of the Criminal Procedure Law Cap. 42, Laws of the Borno State 1994.

Aggrieved with the said ruling, Appellant appealed to this Court based on four (4) grounds of appeal. The grounds and their particulars are contained on pages 24-26 of the record of appeal. The Appellant sought for an order to set aside the decision of the trial High Court and a verdict of discharge be entered for him. The record of appeal upon being compiled and transmitted to this Court, parties filed and exchanged their respective briefs of argument in accordance with the rules of Court. The Appellant’s brief of argument settled by A.R. Abdulsalam Esq. is dated 23rd February, 2 18 and filed on 26th February, 2018. The Respondent’s brief of argument settled by Khalid Sanusi Esq. is dated and filed on the 8th day of March, 2018. The appeal was heard on 16th May, 2018.

Appellant was represented by I. Moh’d Esq. who adopted the Appellant’s brief of argument and urged the Court to set aside the ruling of the lower Court and uphold the Appellant’s no case submission. While the Respondent was represented by Khalid Sanusi Esq. who also adopted the Respondent’s brief of argument and urged the Court to dismiss the appeal and affirm the decision of the trial Court.

From the Appellant’s four grounds of appeal, his learned counsel distilled two (2) issues for determination on page 3 to 4 of the brief, to wit:

1. Whether by the evidence of the prosecution witnesses, there are evidence to prove all the essential elements or ingredients of the three counts in the charge as the evidence of the prosecution has been so discredited as a result of cross-examination and no evidence to make a Court to reasonably convict on it for which each count of the charge to be separately considered against the evidence adduced by the prosecution.

2. Whether by considering the evidence of PW1, 3 and 4, the learned trial judge was right to observe the facts, weigh evidence with an exhibit which is receipt of money from PW4 and delve into the substance of criminal trial at the interlocutory.

The Respondent on its part, responded to the Appellant’s two issues above and in addition formulated an issue in paragraph 30.1 of its unpaginated brief as follows:

“Whether or not from the totality of evidence adduced in the trial Court, the prosecution has established a prima facie case against the Appellant to warrant the Appellant to open his defence.”

From the facts and circumstances of this case, the issue for determination in this appeal is:

“Whether from the evidence adduced by the prosecution a prima facie case has been established against the Appellant to warrant him enter his defence.”

In arguing this issue, learned counsel for the Appellant submitted that no prima facie case has been made against the accused person, as no sufficient evidence to cover the essential ingredients or elements of the offences charged. He submits that a prima facie case is said to exist when there is evidence sufficient enough to support the allegation made against the accused person. He referred to the case of Igho v. The State (1978)3 SC 87. He contended that a submission of no case to answer will be upheld when there is no evidence to prove the essential elements in the alleged offence and when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or the evidence is so manifestly unreliable that no reasonable tribunal could safely convict on it. He relied on the case of Ibeziako V. C.O.P. (1963) NWLR P. 61, Ubanatu V. C.O.P. (2000) FWLR (Pt. 381) P. 1778 @ 1813-1814.

Learned counsel submitted that in the instant case, the prosecution has not only failed to prove essential elements of the offences of criminal breach of trust, criminal misappropriation and cheating that have been said to be committed by the Appellant, but the evidence adduced is not manifestly reliable for any tribunal to convict the Appellant upon it. He referred the evidence of PW1, PW2, PW3 PW4 and PW5. He submits that the evidence of PW3 and PW4 is not legally admissible evidence linking the accused person/Appellant with the commission of the offence under count 3 of the charge. He relied on the case of Igabele V. State (2004)15 NWLR (Pt. 896) 314.

It was further the contention of the learned counsel that the submission of no case to answer made before the lower Court was wrongly overruled as either all the essential elements were not proved or no evidence linking the accused to the commission of the offence or no reasonable tribunal could convict upon evidence before the Court. Learned counsel submits further that the procedure adopted by the learned trial judge by not separately considering each count of charge, against the evidence adduced by the prosecution is fatal to the matter. That the decision of the lower Court was made in a blanket finding in respect of all the counts of criminal breach of trust, criminal misappropriation and cheating under Sections 312, 309 and 322 of the Penal Code, Laws of Borno State 1994 Caps 102.

It was the argument of the learned counsel that the ruling of the lower Court has affected the right of the Appellant because findings were made and conclusion reached on the evidence called by the prosecution before entering his defence, as the learned trial judge believed the Appellant is truly guilty of the offences charged, which should not be so.

He referred to the cases of Ajiboye V State (1995)8 NWLR (Pt. 414) P. 408, Ekwunugo V. FRN (2008)15 NWLR (Pt. 1111) p. 630. Learned counsel maintained that the trial judge having delved into the substance of the criminal trial at the interlocutory stage, has denied the Appellant opportunity of fair trial and hearing. He referred to the cases of Kwara State Polytechnic V. Afolabi (2010) ALL FWLR (Pt. 547) P. 629 @ 648 paras C-D, Akapo V. Hakeem Habeeb (1992)6 NWLR (Pt. 247) P. 266 @ 287 paras C-D. In conclusion, he urged the Court to set aside the ruling of the lower Court and uphold the no case to answer submission made by the Appellant.

The learned counsel for the Respondent for his part, submitted that the evidence adduced in the trial Court is connected with the offences charged against the Appellant. He submits that the Respondent had established a prima facie case against the Appellant before the trial Court as required by the law. He stated that the prosecution’s evidence as to the offences charged were never challenged by the Appellant and that where evidence remained unchallenged the Court is bound to act upon it. He referred to the case by Amoshima V. State (2009) ALL FWLR (Pt. 488) 328 at 274. It was posited that PW1 entrusted his land documents to the Appellant in his professional capacity and PW3 testified having paid N400,000 to Appellant in respect of the sale of the said land. It was further submitted that the PW4 stated that the Appellant gave him title documents in respect of the plot to sale which he did at the cost of N3 Million Naira. It was argued that the evidence of all the witnesses was not discredited under cross-examination.

It was further submitted that exhibit ‘D’ which is the extrajudicial statement of the Appellant is sufficient enough to warrant the Appellant to answer the case against him as the Appellant failed to object to its admissibility and therefore the Court is to act upon it. He referred to the case of Alarape V. The State (2001)5 NWLR (Pt. 705) Pg. 80 at Pg. 82. In conclusion, learned counsel urged the Court to dismiss the appeal and affirm the decision of the trial Court.

The law is settled that at the close of the prosecution’s case, the accused has an option if he believes that from the evidence adduced by the prosecution a prima facie case has not been established against him, to make a no case submission. A prima facie case means that there is ground for proceeding. In other words, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it prima facie suggests that the evidence produced so far indicates that there is something worth looking at. When a prima facie case is said to have been disclosed against an accused person, all that means is that there are grounds for proceedings with the trial. See Agbo V. State (2013) 11 NWLR (Pt. 1365) Pg. 377 at P. 394 paras C-D, Duru V. Nwosu (1989)4 NWLR (Pt. 113) 24.

A no case submission when made by an accused postulates one of two things, or both of them at once. Firstly, such a submission tantamounts to saying that there has been throughout the length and breadth of the case presented in Court by the prosecution, no legally admissible evidence led against the accused person on behalf of whom the submission was made to connect him in any way with the commission of the offence with which he has been charged, which would compel him being called upon to defend himself. Secondly, it may mean that whatever evidence there was which might have linked the accused person with the commission of the offence has been so discredited through cross-examination that no reasonable tribunal can be called upon to act on it, as establishing the guilt of the accused person or that such evidence is so manifestly unreliable such that no reasonable tribunal can safely convict on it. See Chianugo V. State (2002)2 NWLR (Pt. 250) 225 at 237 – 238, Agbo V. State (Supra) at Pg. 394 paras D-G.

In the instant case, the Appellant was arraigned before the lower Court for the offences of criminal breach of trust, criminal misappropriation and cheating contrary to Sections 311, 308 and 320 of the Penal Code, Laws of Borno State 1994. The prosecution in support of these charges led five (5) witnesses and tendered five (5) exhibits as well. PW1 testified that he engaged the services of the accused who is a lawyer and he collected the title document of his land. He testified further that one day he noticed development on the land and after he investigated he discovered the land was sold out to one Mallam Yusuf by the accused person through one Baba Mele Ismail (PW4). The evidence of PW2 supported the evidence of PW1 to the effect that the accused requested for title document of the land from Pw1 and the accused sold out the land to one Baba Yusuf. PW3 who was the purchaser of the land confirmed to the Court that he bought the land from the accused through one Mele. PW4 who is the person through whom the land was sold out testified before the Court that the accused invited him to his office and asked him to look for a buyer of the land, wherein he advertised to Bukar Yusuf (PW3) and they agreed on N3 Million . The Appellant gave an acknowledgement on a Memo pad titled “MAI AJI CHAMBERS” of having collected N450,000.00 from Mele Samaila (PW4). The acknowledgement was admitted as exhibit A. Furthermore the statement of the Appellant exhibit C and C1 confirmed that he collected about N400,000 from Mele (PW4). These pieces of evidence raised some questions which will require some explanation from the accused now Appellant.

It is trite law that in a no-case submission, what is critical at that stage is not whether the evidence against the accused is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring the accused to make some explanation. At that stage, the question whether or not the Court believes the evidence led does not arise. The credibility of witnesses or weight to be attached to the evidence does not arise. The rationale is obvious the trial of the case has not yet been concluded for the issue of proof beyond reasonable doubt to arise. At that stage, all that is required is prima facie case. See F.R.N. V. Martins (2012) 14 NWLR (Pt. 1320) Pg. 287 @ Pp. 320-321 paras H-B, Ajiboye V. State (1995 8 NWLR (Pt. 414) 408; Ekwunugo V. F.R.N. (2008)15 NWLR (Pt. 1111) 630. In Agbo V. State (2013)11 NWLR (Pt. 1365)377 at 394 TO 395, the apex Court per FABIYI, JSC stated thus:

“The purport of a no case submission is that the Court is not called upon at that stage to express any opinion on the evidence before it. The Court is only called upon to take note and rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence charged. But if there is legally admissible evidence, however slight, the matter should proceed as there is something to look at. See: Igabele V. The State (Supra); Aituma V. State (2007) 5 NWLR (Pt. 1028) 466.

At the stage of no case submission, credibility of prosecution witnesses should not be considered. It is not a stage where a Court can believe or disbelieve prosecution witnesses as the defence is yet to present its own witnesses. The Court is enjoined to avoid the temptation of being lured to pronounce on the merits or otherwise of the available evidence. A ruling on a ‘no case submission’ should not be of inordinate length. See: AJIBOYE V. STATE (1995)9 SCNJ 442; (1995)8 NWLR (Pt. 414)408. I dare to say that ‘a no case submission’ should be determined within the narrow compass of the legally admissible evidence produced by the prosecution; and such should be based on its face value.”

See also Alex V. F.R.N. (2018)7 NWLR (Pt. 1618)228 at 241.

In the instant case, from the evidence adduced by the prosecution before the lower Court a prima facie case of the offences charged has been made against the accused person and upon the presentation of such evidence, justice demands that the trial Court calls on the accused/Appellant to put up a defence on the alleged criminal breach of trust, criminal misappropriation and cheating. To this end, the lone issue is resolved against the Appellant and in favour of the Respondent.

Having resolved this lone issue against the Appellant, it is crystal clear that this appeal lacks merit, same is hereby dismissed. The ruling of the lower Court calling upon the accused person/Appellant to enter his defence in accordance with Section 192 of the Criminal Procedure Law Cap 42 Laws of Borno State 1994 is hereby affirmed. The case is accordingly remitted back to the High Court of Justice Maiduguri for the accused/Appellant to enter his defence.

MSHELIA, JCA

I read before now the Judgment of my learned brother Jauro, J.C.A just delivered. I entirely agree with his reasoning and conclusion arrived thereat. I too hold that the appeal lacks merit, same is dismissed. I abide by the consequential orders made in the lead Judgment.

ONYEMENAM, JCA

I had the privilege of reading in draft the lead judgment just delivered by my learned brother ADAMU JAURO JCA. His lordship rightly resolved the lone issue raised in the appeal. I agree with the conclusion reached therein that the appeal lacks merit. I too dismiss the appeal for the same reasons.

I affirm the ruling of the lower Court delivered on 11th December, 2017 by A.Y. Mshelia, J. In Suit No. BOHC/MG/CR/30/2017. I also order that the case be remitted back to the High Court of Maiduguri to enable the Accused/Appellant enter his defence.

Appearances:

I. MOHAMMED, ESQ. For Appellant(s)

KHALID SANUSI, ESQ. For Respondent(s)