(2017) LPELR-42606(CA)

Transcription

1 STATE v. ASUNMO & ORS CITATION: In the Court of Appeal In the Ibadan Judicial Division Holden at Ibadan CHINWE EUGENIA IYIZOBA HARUNA SIMON TSAMMANI NONYEREM OKORONKWO ON FRIDAY, 30TH JUNE, 2017 Suit No: CA/IB/331C/2014 Before Their Lordships: Between THE STATE - Appellant(s) 1. MRS. OLUYEMISI ASUNMO 2. RASHIDI AJAGBE 3. SUNDAY ODEBODE 4. ROTIMI OLABIYI And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal RATIO DECIDENDI - Respondent(s)

2 1. CRIMINAL LAW AND PROCEDURE - NO CASE SUBMISSION: Meaning of no case submission "Under Section 286 of the Criminal Procedure Act, if it appear to the Court at the close of the case for the prosecution, that no case is made out against the defendant, sufficient to require him to make a defence, the Court shall as that particular charge discharge him Ibeziako vs. C.O.P. (1963) 1 SCNLR 99. This, in most cases mean that if there is no evidence to prove a material element of the offence charged, or if the material elements adduced in evidence has been so discredited as result of cross examination that no reasonable tribunal could act on it, a no case submission could be made and sustained."per OKORONKWO, J.C.A. (Pp. 7-8, Paras. F-B) - read in context

3 NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment):In a ruling delivered on 9th April 2014, the Oyo State High Court, per E. Esan J. upheld a submission of no case made on behalf of the respondents charged with conspiracy and stealing holding in respect of the charge of conspiracy thus: Sincerely, I find no indication that the accused person ever agreed amongst themselves to steal water meters. There is also no evidence from which it could be inferred that the accused persons came to any agreement in respect of the offences charged. As a result and without much ado no prima facie case has been made out against the 4 accused persons to warrant them being called upon to defend themselves on the charge of conspiracy. Each accused is discharged under S. 286 CPL on the 1st count. and in respect of the charge of stealing holding thus: it is important to note that before a Court arrives at the conclusion that an accused has a case to answer, the Court must be satisfied that there is in law a nexus between the accused and the offence charged. Based on the evidence before the Court some of which I have 1

4 highlighted above, there is no evidence linking the 4 accused persons with the offence of stealing water meters. In the circumstance, no prima facie case of stealing has been established against the 4 accused persons to warrant them being called upon to defend themselves. Each accused is therefore discharged under S. 286 CPL. The consequence was that the four accused persons who are respondents herein were discharged upon the close of the case for the prosecution because no prima facie case was made out by the prosecution in relation to the charges of conspiracy and stealing. The State being dissatisfied by the decision appealed against the decision upon a Notice of Appeal filed 23rd May 2014 appealed to this Court which raised a sole ground of appeal herewith reproduced: The learned trial judge erred in law when he held that the 1st, 2nd and 3rd respondents had no case to answer, on the erroneous finding that the only evidence relied on by the persecution is circumstantial evidence which is not enough. Particulars (i) That the learned trial judge in arriving at his decision went into the merit of the evidence of the prosecution 2

5 witnesses. (ii) That the finding of the trial Court is erroneous and contrary to evidence place before it. (iii) That the trial judge delved into the credibility of the prosecution witnesses. In the appellant s brief filed 11th April 2016 the State appellant raised the sole issue whether from the evidence before the Court, there exists admissible evidence linking the respondents to the alleged offence. In arguing this issue, learned counsel cites the testimony of PW4 Mrs. Lola Oyeyemi at page and the learned trial judges findings thereupon thus: PW.4 Mrs. Lola Oyeyemi told the Court that apart from the 1st accused, other persons also had access to the keys to the store at Eleyele. This sort of testimony makes it clear that others apart from the 4 accused had the opportunity to steal the Water Meters. She then charges that the trial judges comments were an evaluation which is not proper at the stage of no case submission. At paragraphs of the appellant s brief counsel argued thus: It is also clear that the judge considered the credibility of 3

6 the prosecution witnesses when she said at the last paragraph of page 153 of the Record thus: The evidence which the prosecution seems to rely upon is that the 2nd and 4th accused persons on a certain occasion assisted the 1st accused to bring down some cartons containing Water Meters. That piece of evidence is vague as it does not categorically establish the stealing of the items contained in the charge. It is most humbly submitted my Lords, that the learned trial judge considered the merit of the evidence of the prosecution witnesses and ascribed credibility to them contrary to the provision of the law under Section 286 of the Criminal Procedure Law, Cap 39, Laws of Oyo State of Nigeria For the trial judge to conclude that a piece of evidence is vague and does not categorically establish stealing evinced that there is evidence before the Court which links the respondents to the offences charged. The Court ought to have called on the respondents to defend the charges levied against them. Once there is a scintilla of evidence linking the respondents to the commission of the offences charged, the 4

7 Court s duty is to call on the respondents to give evidence. I commend to my Lords the following cases: State vs. Ajuluchukwu (2011) 5 NWLR (pt. 1239) 78 at pages 89-90; Ubanatu vs. C.O.P. (2000) 2 NWLR (pt. 643) 115." Regarding Exhibit H1, H2 and J1 and citing Ali vs. the State (1988) 1 NWLR (pt. 68) P1 at 19 counsel seem to consider those statements as confessional sufficient to make the trial proceed to defence particularly for the 1st respondent. Appellant conclude that there were sufficient facts linking the respondents with the offence sufficient for the Court to call on the respondents to enter their defence. For the respondents, in the brief filed on their behalf on 17/2/2017, at paragraph 2.01, learned counsel argued thus: The said ground of Appeal does not constitute an appeal against the Ruling of Oyo State High Court of 9th April, 2014 because the ratio decidendi of the Ruling was not attacked or appealed against by the Appellant. We refer to the Amended Notice of Appeal. In respect of the charge of conspiracy, respondent counsel argues at paragraph 3.04 thus: We submit 5

8 respectfully that prosecution did not prove conspiracy to steal water meters, none of the six prosecution witnesses gave evidence where the first respondent agreed together with the other three accused persons to steal water meters. And submit in conclusion thus: In Tongo vs. C.O.P. (2002) 2 NWLR (pt. 645) 485 at 493 paras. A-B, the Court held 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 sufficiently to require him to make a defence, the Court shall as to that particular charge, discharge him. Your lordships, the requirement of a no case submission hinged on the two conditions stipulated in Ibeziako vs. C.O.P. (1963) 1 SCNLR 99 are fully satisfied, hence the trial Court was in order to have held that the 1st accused person had no case to answer. The charge for which the appellants were charged are conspiracy contrary to Section 516 and stealing contrary to Section 390 (5). The Sections provide as follows: Section 516 CC Any person who while in a State conspires with another to do any act not in the State which if done in the 6

9 State would be a felony against the law of the State and which is an offence against the law of the place where it is proposed to be done, is guilty of a felony and is liable, if no other punishment is provided, to imprisonment for seven years, or if the greatest punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years, then to such lesser punishment. In this Section and Section 517A law of a State and State have the meanings assigned to them in Section 10A of this Code. Any person who steals anything capable of being stolen is guilty of a felony, and is liable, if no other punishment is provided, to imprisonment for three years. If the offender is a person employed in the public service and the thing stolen is the property of the State, or came into the possession of the offender by virtue of his employment, he is liable to imprisonment for seven years. Under Section 286 of the Criminal Procedure Act, if it appear to the Court at the close of the case for the prosecution, that no case is made out against the defendant, sufficient to require him to make 7

10 a defence, the Court shall as that particular charge discharge him Ibeziako vs. C.O.P. (1963) 1 SCNLR 99. This, in most cases mean that if there is no evidence to prove a material element of the offence charged, or if the material elements adduced in evidence has been so discredited as result of cross examination that no reasonable tribunal could act on it, a no case submission could be made and sustained. In this case, the trial judge considered the essential ingredients of the offence and found that there was no evidence in proof thereof neither were there facts from which conclusive inferences of conspiracy and stealing could be done. In such situation, trial is under a duty to uphold a submission of no case. Exhibits H which learned counsel represents as confessional is hardly a confession of agreement or of stealing and inferences therefrom cannot point conclusively to agreement or stealing to justify the respondents being called upon to defend. This appeal has not faulted the trial judge s decision in any manner and so fails in the sole issue submitted and argued. The appeal therefore fails and is

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12 dismissed. CHINWE EUGENIA IYIZOBA J.C.A.:I read before now the Judgment just delivered by my learned brother, NONYEREM OKORONKWO JCA. I agree with his reasoning and conclusions. I abide by all the consequential orders of my learned brother in the judgment. HARUNA SIMON TSAMMANI, J.C.A.: I read in advance the judgment delivered by my learned brother, N. Okoronkwo, JCA. I agree that this appeal has no merit. It is accordingly dismissed.the Ruling of the Court below is accordingly affirmed. 9