(2017) LPELR-43016(CA)

Transcription

1 USMAN & ORS v. FRN CITATION: In the Court of Appeal In the Yola Judicial Division Holden at Yola OYEBISI FOLAYEMI OMOLEYE JAMES SHEHU ABIRIYI SAIDU TANKO HUSAINI 1. ALHAJI INIWA USMAN 2. ALHAJI CHINDO M.D. BOSE 3. JOHN SIMON JATAU FEDERAL REPUBLIC OF NIGERIA ON MONDAY, 6TH MARCH, 2017 Suit No: CA/YL/2C/2016 Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. CRIMINAL LAW AND PROCEDURE - NO CASE SUBMISSION: What has to be considered in a no case submission "Section 286 of the Criminal Procedure Act under which a submission of No-case was made provides that:- "If at the close of evidence in support of the charge, it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence, the Court shall at that particular stage discharge him." It is only at the close of evidence of prosecution witnesses can defence, in a criminal prosecution raise or make a submission of no case to answer. The trial Court at this stage is not called upon to express any opinion or make a finding. The Court is merely expected to rule and determine whether or not, there is sufficient legally admissible evidence linking the accused person with the commission of the offences with which he is charged. See: IBRU Vs. State (2011) 17 NWLR (Pt. 1275), 6. In Shatta V. Federal Republic of Nigeria (2009) 10 NWLR (Pt. 1149) 403, 415, this Court held thus:- "When a Court is giving consideration in a submission of no case, it does not have to believe the evidence adduced by the prosecution, but the issue to determine is that if the case of the prosecution is believed, is there anything for the accused to explain."per HUSAINI, J.C.A. (Pp , Paras. D- D) - read in context

3 2. CRIMINAL LAW AND PROCEDURE - NO CASE SUBMISSION: Guidelines for upholding a no case submision "...for a submission of no case to succeed, the test to satisfy, is one set out in Ibru V. State (supra) thus:- "(a) No legally admissible evidence has been established by the prosecution which linked the accused in any material way with the commission of the alleged offence and thereby necessitating the accused person being called upon for his defence. In this regard, that an essential ingredient or element of the offence charged remained established against the accused parson at that point in time" (b) Whatever evidence, if any, which might have linked the accused person with the offence in question has been so discredited under cross-examination that no reasonable Tribunal or Court can be invited to act on it in other to establish criminal guilt of the accused person and safely convict him thereon."per HUSAINI, J.C.A. (Pp , Paras. D-B) - read in context 3. CRIMINAL LAW AND PROCEDURE - NO CASE SUBMISSION: When a submission of no case to answer will succeed "A submission of no case can only succeed where the prosecution failed to establish a prima facie case against the accused person hence it was held in Suberu V. The State (2010) 3 SCNJ 491, that a no case submission means that there is nothing in the evidence adduced by the prosecution that would persuade the Court to compel the accused to put up his defence. In Tongo V. COP (2007) 4 SCNJ 221, 236, it was held that a submission of no case to answer lies in the contention that the evidence the prosecution in the discharge of the burden of proof placed on them by law has failed to establish the ingredients of the offence against the accused to make it imperative for Court to call upon the accused to defend himself or answer to the charge or open his defence."per HUSAINI, J.C.A. (Pp , Paras. C-A) - read in context

4 4. CRIMINAL LAW AND PROCEDURE - NO CASE SUBMISSION: What has to be considered in a no case submission "When a submission of no prima facie case is made on behalf of an accused person the trial Court is not thereby called upon to at that stage express any opinion on the evidence before it. The Court is only called upon to take note and to rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the record. If such is not the case, then the submission is bound to fail. See Oguntade JSC in Tongo & Anor V. Commissioner of Police (2007) LPELR-3257 SC at 15."Per ABIRIYI, J.C.A. (P. 21, Paras. A-D) - read in context

5 5. EVIDENCE - PRIMA FACIE CASE: Meaning of prima facie case "The expression "Prima facie" has been defined in various ways: the apex Court in Fidelis Ubanatu Vs. Commissioner of Police [2000] 2 NWLR (Pt. 643) 115 quoting the authors of Osborne Concise Law Dictionary, 8th edition by Rutherford and Bone, said:- "A case in which there is evidence which will suffice to support the allegation made in it, and which will stand unless there is evidence to rebut the allegation. When a case is being heard in Court, the party on whom the burden of proof rest must make out a prima facie case otherwise the other party will be able to submit that there is no case to answer, and if he is successful, the case will be dismissed." The authors of Black's Law Dictionary 8th edition defined the expression "prima facie case" as: "The establishment of a legally required rebuttable presumption... A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favour..." see page 1228.?In Duru Vs Nwosu (1989) 4 NWLR (Pt. 113) 24, the expression, prima facie was defined thus:- "Prima facie, therefore, literally means on the first appearance. Applied to the rule of onus of proof in the law of evidence, a prima facie is case supported by such a quantum of evidence on every material issue thereof that, if no evidence is called by the other side, or if called, as often happens in civil case, such contrary evidence is disregarded, the plaintiff (or the party on which the burden lies) will be entitled to the verdict of the Court on the case or the particular issue, as the case may be. It is evidence which, viewed on the face of it alone, is sufficient to entitle the Court to proceed with the proceedings..." In Ibru Vs. State (supra) it was held that: "A prima facie case connotes the existence of evidence which is sufficient enough to support allegation and would be regarded as having been made in the absence of further evidence in rebuttal of same."per HUSAINI, J.C.A. (Pp , Paras. A-E) - read in context

6 6. EVIDENCE - PRIMA FACIE CASE: Meaning of prima facie case "The expression "prima facie case" comes from the latin words primus (which means first) and facies (which means looks, appearance, face). Prima facie therefore means literally at first appearance. Prima facie evidence therefore is evidence which viewed on the face of it alone, is sufficient to entitle the Court to proceed with the proceedings. See Duru V. Nwosu (1989) 4 NWLR (Pt. 113) 24."Per ABIRIYI, J.C.A. (Pp , Paras. E-A) - read in context

7 SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court sitting in Jalingo and delivered on 28th September, 2015 per Hon. Justice D. U. Okorowo, in Charge No.FHC/TAR/1C/2012. The appellants were arraigned and charged on (six) counts, namely: COUNT ONE: That you, Inuwa Usman, Alhaji Chindo M. D. Bose Rev. John Simon Jatau on or about the 14th day of September, 2010 at Jalingo, Taraba State within jurisdiction of this Honourable Court did agree to do an illegal act to wit; making cash payment of Ten Million Naira (N10,000,000.00) and thereby committed an offence contrary to Section 17 (a) of the Money Laundering (Prohibition) Act, COUNT TWO That you, Rev. John Jatau on or about the 14th of September, 2010 at Jalingo, Taraba State within jurisdiction of this Honourable Court make cash payment of Ten Million Naira (N10,000,000.00) to Alhaji Chindo M. D. Bose, Secretary to Taraba State Muslim Council, and thereby committed an offence contrary to Section 1 (a) of the Money Laundering (Prohibition) Act COUNT THREE That you,

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9 Alhaji Inuwa Usman, Alhaji Chindo M. D. Bose Rev. John Simon Jatau on or about the 14th day of September, 2010 at Jalingo, Taraba State within jurisdiction of this Honourable Court did agree to do illegal act, to wit; receiving cash payment of Ten Million Naira (N10,000,000.00) and thereby committed an offence contrary to Section 17 (a) of the Money Laundering (Prohibition) Act COUNT FOUR That you, Alhaji Chindo M. D. Bose on or about 14th day of September, 2010 at Jalingo, Taraba State within jurisdiction of this Honourable Court did receive cash payment of Ten Million Naira (N10,000,000.00) from Rev. John Simon Jatau and thereby committed an offence contrary to Section 1 (a) of the Money Laundering (Prohibition) Act COUNT FIVE That you, Alhaji Usman, Alhaji Chindo M. D. Bose and Rev. John Simon Jatau on or about 14th day of September, 2010 at Jalingo, Taraba State within jurisdiction of this Honourable Court did agree to do an illegal act, to wit; obtaining money by false pretence and thereby committed an offence contrary to Section 8 of the Advance Fee Fraud And other Fraud Related Offences Act, COUNT SIX That 2

10 you, Alhaji Inuwa Usman, Alhaji M. D. Bose and Rev. John Simon Jatau on or about the 14th day of September, 2010 at Jalingo, Taraba State within jurisdiction of this Honourable Court obtained the sum of Ten Million Naira (N10,000,000.00) only from Taraba State Government under false pretence that the said sum was to be used by Taraba State Muslim for the celebration of Nigeria 50th Anniversary which you retained for your personal benefit and thereby committed an offence contrary to Section 1 (2) of the Advance Fee Fraud And Other Fraud Related Offences Act, 2006 and punishable under Section 1 (3) of the same Act. Their plea was taken. Each one of them entered a plea of not guilty on every count affecting them and their trial commenced accordingly. Prosecution called evidence of 5 (Five) witnesses and tendered Exhibits through some of those witnesses. Through Pw2, Exhibits A, A1, A2, A3 and A4 were admitted in evidence. Through Pw4, Exhibit B1, B2, B3 and B4 were tendered and admitted in evidence while Exhibits 3

11 C, D, D2, D3, E, F, H and I were tendered and admitted through Pw5, White Dein. The Prosecution thereafter closed their case at the conclusion of the evidence of Pw5. At this point, the defence indicated their desire to and indeed made a submission of no-case to answer and called on the trial Court to discharge the accused persons. The trial Court after a painstaking exercise, in the ruling delivered on the 28th September, 2015, overruled the submission of no-case to answer and thus directed the defence to proceed and enter their defence. See: record of appeal, pages Not pleased with the ruling of Court, the accused persons filed separate but similar Notices of appeal, each containing 2 (two) Grounds of Appeal. See pages, of the record. In the brief of argument filed on behalf of the appellants, on the 12th May, 2016 but deemed on the 18th May, 2016, only 1 (one) issue was formulated from the 2 (two) grounds of appeal thus: Whether the Honourable Trial Judge was not in error when he 4

12 overruled the no case submission raised by the defence and whether Exhibit C is not without any legal value being authored by non-existent person (distilled from Grounds one and two of the appeal) The respondent, on its part submitted 2 (two) issues for determination in the brief filed by them. These are: a. Whether the Honourable trial Judge was right when he overruled the no-case submission raised by the defence. b. Whether a petition written by whistle blower is of any legal effect or not. At the hearing of the appeal on the 8th December, 2016, learned counsel adopted their respective briefs of argument. Learned appellants' counsel arguing the lone issue formulated by them in their brief of argument submitted that the prosecution had not made out a case relative to count, 1, 2, 3 and 4 under the Money Laundering (Prohibition) Act, 2004) or counts 5 and 6 under the Advanced Fee Fraud and Other Fraud Related Offences Act, To that end, the Appellants can take advantage of the provision of Section 286 of the Criminal Procedure Act to make a no-case submission especially where the prosecution 5

13 failed to prove their case. Learned appellant s counsel adverted to the provisions of Sections 1 (a) and 17 (a) of the Money Laundering (Prohibition) Act on the ingredients of the offences created by those provisions. In reference to the sum of N10, 000, , the money said to have been laundered, he argued that the said money was withdrawn by Pw1 and Pw2 from the account of the Department of Home Affairs with Zenith Bank of which the Appellants are neither signatories nor operators of the Account. It is argued that an offence of receiving cash payment exceeding N500, by individual outside banking institution was not complete unless there was giving and receiving. In reference to Exhibit A the voucher which Pw2 claimed the 3rd Appellant signed to collect the sum of N10, 000, , learned counsel argued that on the face of Exhibit A the appellant only signed as a witness. In relation to counts 5 and 6 proffered under the Advanced Fee Fraud and Other Related Offences Act, 2006, it was contended that evidence on record cannot sustain the offence/offences brought under Sections 8 6

14 (a) and 1 (2) (3) of the Act. It is argued that no prima facie case of conspiracy to or obtaining money by false pretence was established to necessitate calling on the Appellants to enter defence. In reference to Exhibit C, the letter of Petition to EFCC which heralded this case, it was argued that same lack authenticity as the makers cannot be identified hence the case of the respondents was speculative and the appellants cannot justifiably be called to defend a mere speculation. In reference to evidence of Pw3, it is argued that the N10, 000, said to be laundered was infact paid into the coffers of Taraba State Muslim Council. It is further argued that there is no evidence that the appellants satisfied or induced Taraba State Government to make any donation to them or that the money so donated was retained by the Appellants or any of them. It is further argued that to succeed the offence of obtaining money by false pretence, the intent to defraud must be proved as a vital ingredients along with the act itself. Learned counsel referred to the case of Egr. Sule Aliyu V. Federal Government of Nigeria (2013) 12 SCNJ 282; 7

15 Chief Olabode George Vs Federal Government of Nigeria (2013) 12 SCNJ 1. Learned counsel urged us finally to resolve the lone issue for determination in the affirmative in favour of the appellants and discharge them with respect to all the six (6) counts upon which they are charged and uphold the no case submission of the Appellants and set aside the ruling of the Federal High Court delivered on 28th September, 2015 in Charge No. FHC/TAR/1C/2012. Respondent, as indicated before now, raised 2 (two) issues in their brief of argument for determination of Court. On the issue whether the trial Judge was right to overrule the no case submission raised by defence, we were urged to resolve same affirmatively in favour of the respondent so far as evidence have been proffered linking the appellants with offences they have been charged. It is argued for the respondent that what the prosecution needed to establish at this stage is a prima facie case or evidence on the basis of which an accused person can be called upon to explain. He argued that there has to be such evidence, linking the accused/appellant with the charge. If there is such evidence, it is 8

16 argued a submission of no case to answer will not succeed. He referred us to IBRU Vs State (2011) 17 NWLR (Pt. 1275) 1 6; Shata V. Federal Republic of Nigeria (2009) 10 NWLR (Pt. 1149) 463, 415. It is their submission that such a prima facie case has been established by the prosecution at the Court below and that the Court rightly called on the appellant to enter their defence. Learned respondent s counsel in their brief of argument referred us to Sections 8 and 1 of the Money Laundering (Prohibition) Act, 2004 under which count 1, 2, 3 and 4 were laid to submit that by the confessional statement made, the 2nd and 3rd appellants admitted the commission of the offences. That the 3rd respondent admitted to have paid the sum of N10, 000, cash to the 2nd appellant who admitted receiving it from the 3rd appellant. It is argued that the 1st Appellant collected the N10, 000, from the 2nd Appellant and kept same in his residence. That the payment and receipt of the said cash was effected as agreed by the Appellant. Furthermore, based on the evidence of Pw4 and Pw5, it was argued that counts 1, 2, 3 and 4 of the charge was 9

17 established. Pw4 and Pw5 are investigating officers. He referred us to the Extra judicial statement in Exhibit B1 B2 and B3, being the statements of Chindo Mohammed Bose, the 2nd appellant; Exhibits B4, the extra judicial statement of the 3rd appellant, John Simon Jatau and also Exhibit D2 the Statement of the 1st Appellant, Alhaji Inuwa; Exhibit D3 the Statement of the 2nd Appellant, Exhibit E, the Statement of the 3rd Appellant, Exhibit E, the Statement of the 3rd Appellant; Exhibit G the Statement of the 1st Appellant; Exhibit H, the Statement of the 1st Appellant; Exhibit I, the Statement of the 3rd Appellant. It is further argued in relation to counts 4 & 5 that the prosecution had also established a prima facie case against the appellant in reference to the evidence of Pw2 who handed over the sum of N10, 000, to the 3rd Appellant after signing Exhibit A, the payment voucher. That the evidence of Pw3 showed how the 1st & 2nd appellants fraudulently declared the State Government donation to the Muslim Council and how the 2nd 10

18 appellant refunded N4.1 Million. Learned Respondent s counsel arguing his issue No. 2 submits that Exhibit C, a petition written by anonymous persons was acceptable and usuable since same has been admitted without the appellants objecting to it. He argued that the EFCC under Section 7 of the Act establishing it, could initiate investigation based on a Petition whether anonymous or not. It was urged on us to resolve issue No. 2 in favour of the respondent and dismiss the appeal. After a thorough consideration of the facts leading to this appeal I am of the opinion that the lone issue formulated by the appellants can very well dispose this appeal. Section 286 of the Criminal Procedure Act under which a submission of No-case was made provides that:- If at the close of evidence in support of the charge, it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence, the Court shall at that particular stage discharge him. It is only at the close of evidence of prosecution witnesses can defence, in a criminal prosecution raise or make a submission of 11

19 no case to answer. The trial Court at this stage is not called upon to express any opinion or make a finding. The Court is merely expected to rule and determine whether or not, there is sufficient legally admissible evidence linking the accused person with the commission of the offences with which he is charged. See: IBRU Vs. State (2011) 17 NWLR (Pt. 1275), 6. In Shatta V. Federal Republic of Nigeria (2009) 10 NWLR (Pt. 1149) 403, 415, this Court held thus:- When a Court is giving consideration in a submission of no case, it does not have to believe the evidence adduced by the prosecution, but the issue to determine is that if the case of the prosecution is believed, is there anything for the accused to explain. Thus, for a submission of no case to succeed, the test to satisfy, is one set out in Ibru V. State (supra) thus:- (a) No legally admissible evidence has been established by the prosecution which linked the accused in any material way with the commission of the alleged offence and thereby necessitating the accused person being called upon for his defence. In this regard, that an essential ingredient or element of 12

20 the offence charged remained established against the accused parson at that point in time (b) Whatever evidence, if any, which might have linked the accused person with the offence in question has been so discredited under crossexamination that no reasonable Tribunal or Court can be invited to act on it in other to establish criminal guilt of the accused person and safely convict him thereon. A submission of no case can only succeed where the prosecution failed to establish a prima facie case against the accused person hence it was held in Suberu V. The State (2010) 3 SCNJ 491, that a no case submission means that there is nothing in the evidence adduced by the prosecution that would persuade the Court to compel the accused to put up his defence. In Tongo V. COP (2007) 4 SCNJ 221, 236, it was held that a submission of no case to answer lies in the contention that the evidence the prosecution in the discharge of the burden of proof placed on them by law has failed to establish the ingredients of the offence against the accused to make it imperative for Court to call upon the accused to defend himself or answer to the 13

21 charge or open his defence. The expression Prima facie has been defined in various ways: the apex Court in Fidelis Ubanatu Vs. Commissioner of Police [2000] 2 NWLR (Pt. 643) 115 quoting the authors of Osborne Concise Law Dictionary, 8th edition by Rutherford and Bone, said:- A case in which there is evidence which will suffice to support the allegation made in it, and which will stand unless there is evidence to rebut the allegation. When a case is being heard in Court, the party on whom the burden of proof rest must make out a prima facie case otherwise the other party will be able to submit that there is no case to answer, and if he is successful, the case will be dismissed. The authors of Black s Law Dictionary 8th edition defined the expression prima facie case as: The establishment of a legally required rebuttable presumption... A party s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party s favour... see page In Duru Vs Nwosu (1989) 4 NWLR (Pt. 113) 24, the expression, prima 14

22 facie was defined thus:- Prima facie, therefore, literally means on the first appearance. Applied to the rule of onus of proof in the law of evidence, a prima facie is case supported by such a quantum of evidence on every material issue thereof that, if no evidence is called by the other side, or if called, as often happens in civil case, such contrary evidence is disregarded, the plaintiff (or the party on which the burden lies) will be entitled to the verdict of the Court on the case or the particular issue, as the case may be. It is evidence which, viewed on the face of it alone, is sufficient to entitle the Court to proceed with the proceedings... In Ibru Vs. State (supra) it was held that: A prima facie case connotes the existence of evidence which is sufficient enough to support allegation and would be regarded as having been made in the absence of further evidence in rebuttal of same. The trial Court in the concluding remarks in the ruling at page 156 observed in reference to the decision in Daboh & Anor Vs. The State (supra) that: That the Court at this stage is expected to ascertain 15

23 whether there is a link between the accused persons and the offences charged. And where there is a link between the accused and the alleged offences the case ought to be allowed to go for trial but not to make findings of fault at this stage... I hold there is ground for proceeding. The accused persons to present their defence. I have indicated before that the appellants were all arraigned and charged before the trial Court on six (6) counts. Those counts can be categorised into 2 (two) groups thus: [A] Counts 1, 2, 3 and 4 under which the appellants are alleged to have acted contrary to the provisions of Sections 1 (a) and 17(a), respectively of the Money Laundering (Prohibition) Act, [B] Counts 5 and 6 of the charge where the appellants are alleged to have conspired together to obtain the sum of N10, 000, from Taraba State Government under false pretence contrary to Sections 8 (a) and 1 (2) (3) of the Advanced Fee Fraud and Other Related Offences Act, Sections 17(a) and 1(a) of the Money Laundering (Prohibition) Act, 2004 under which counts 1, 2, 3 and 4 are predicated provide as 16

24 follows:- Section 17: A person who- (a) Conspire with, aids, abets or counsels any other person to commit an offence (b) Attempts to commit or is an accessory to an act or offence; or (c) Incites, procures or induces any other person by means whatsoever commit an offence, under this Act, commits an offence and is liable on conviction to the same punishment as is prescribed for that offence under this Act Section 1: (1) No person or body corporate shall make or accept cash payment of a sum exceeding- (a) N500, 000 or its equivalent, in the case of an individual, (b) N2, 000, (Two Million Naira) or its equivalent, in the case of a body corporate, except in a transaction through a financial institution. Under Section 8 and 1 (2) (3) of the Advanced Fee Fraud and Other Fraud Related Offences Act, 2006 under which counts 5 and 6 are predicated respectively provide as follows: (a) Section 8: A Person who- (a) Conspire with, aids, or counsels any other person to commit an offence;

25 (b) Attempts to commit or is accessory to an act or offence; or 17

26 (c) Incites, picture or induces any other person by any means whatsoever to commit an offence, under this Act, commits the offence and is liable on conviction to the same punishment as is prescribed for that offence under this Act. (b) Section 1: (2) A person who by false pretence, and with the intent to defraud, induces any other person in Nigeria or in any other country, to confer on him or on any other person, by doing or permitting a thing to be done on the understanding that the benefit has been or will be paid for commits an offence under this Act. (3) A person who commits an offence under Subsection (1) or (2) of this Sections is liable on conviction to imprisonment for a term of not more than 20 years and not less than 7 years without the option of a fine. It is in evidence (Pw2 and Exhibit A put together) that the 3rd Appellant collected the sum of N10, 000, in cash from Pw2. It is also in evidence that the 3rd Appellant paid the said amount to the 2nd Appellant who received the stated amount at his residence. The 2nd and 3rd Appellants wrote extra judicial statement wherein these facts stated are 18

27 admitted by them, that is the 1st, 2nd and 3rd Appellants in various extra judicial statements made by them and tendered and admitted at the trial Court. Further to this, there is the evidence of Pw4 and Pw5, Officers involved in the case as Investigators and they testified in the matter with particular reference to the 1st, 2nd and 3rd appellants. There is also the evidence of Pw3 stating how the 1st and 2nd Appellants under declared the donation given to the Muslim Council and how the 1st and 2nd appellants refunded the sum of N4.1 Million. Evidence of Pw3, Pw4 and Pw5 reveal that the appellants were reluctant to refund the N10, they collected out of the N21 Million given to Muslim council. All those pieces of evidence no doubt link the appellants to or with the offences for which they are charged hence there is a prima facie case against them upon which they can be called upon to give an explanation. In my view therefore, there is ground for proceeding, and the trial Court came to the right conclusion when it called upon the appellants to present their defence. That order or conclusion has in effect overruled the submission 19

28 of the no-case made by counsel for the appellants at the trial Court. We affirm that decision, accordingly and dismiss the appeal hence the lone or sole issue formulated by the Appellants in their brief is resolved against them. That is the Order and Judgment. OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have had the privilege of reading the draft of the leading judgment just delivered in this appeal by my learned Brother, Saidu Tanko Husaini, J.C.A. I agree with His Lordship that the appeal is bereft of merit and dismiss it accordingly. I equally abide by the consequential orders made in the said leading judgment. JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother Saidu Tanko Husaini JCA. He has dealt at great length with the issue for determination. I have nothing more to add. The expression prima facie case comes from the latin words primus (which means first) and facies (which means looks, appearance, face). Prima facie therefore means literally at first appearance. Prima facie evidence therefore is 20

29 evidence which viewed on the face of it alone, is sufficient to entitle the Court to proceed with the proceedings. See Duru V. Nwosu (1989) 4 NWLR (Pt. 113) 24. When a submission of no prima facie case is made on behalf of an accused person the trial Court is not thereby called upon to at that stage express any opinion on the evidence before it. The Court is only called upon to take note and to rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the record. If such is not the case, then the submission is bound to fail. See Oguntade JSC in Tongo & Anor V. Commissioner of Police (2007) LPELR-3257 SC at 15. On the evidence led by the prosecution the lower Court rightly held that the Appellants have a case to answer. For the reasons contained in the lead judgment, I too dismiss the appeal and affirm the decision of the lower Court. Appellants should go back to the lower Court and face their trial. 21

30 Appearances: E. O. Akpan, Esq. For Appellant(s) Abubakar Aliyu, Esq. For Respondent(s)