JUDGES SHOULD AVOID PREMATURE EVALUATION OF EVIDENCE

AT THE NO CASE SUBMISSION STAGE

DPP v. AKPAN (2018) LPELR-44047(CA)

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

INTRODUCTION

A no case submission is usually made by the accused person after the prosecution has closed its case. It is the accused’s way of saying that the prosecution has not adduced enough evidence to tie him to the offence charged. That is, even if the Court believes the evidence already adduced by the prosecution, it could not convict based on it.  However, the question whether or not the Court does believe the evidence does not arise at that stage neither is the credibility of the witnesses in issue at this stage, rather, ‘all the law requires a Court to determine at the stage of a no case submission is whether the prosecution had made out a prima facie case, it is not to evaluate evidence or consider the credibility of witnesses’ Per OYEWOLE, J.C.A. in this instant appeal.

 

OYEWOLE, J.C.A.  while delivering the leading judgment herein clarified that ‘In its ruling on no case submissions, no matter the elaborate submissions of counsel, the Judge must resist the temptation to go into extensive comments or premature evaluation of adduced evidence mainly because at the stage of a no case submission only one side of the case has been heard and it would be prejudicial to comment on the evidence or facts of the case at that stage.’

Lending credence to the position above, ADAH, J.C.A in her own contribution said; ‘I feel strongly in this case that there is the dire need to rekindle the age long advice of our Superior Court that a no case submission should not warrant detailed consideration of the evidence.’

SUCCINCT FACTS OF THE CASE

The Respondent, a bishop of Mount Zion Light House Gospel Church Inc., was arraigned before the Chief Magistrate Court, Grade 1, Calabar on a 2-count charge of stealing and conversion of land (being property belonging to Mount Zion Light House Gospel Church Inc.) for personal use. At the close of prosecution’s case the defence made a no case submission which was upheld by the learned trial Chief Magistrate.

Disgruntled, the Appellant appealed to the High Court sitting in Calabar. The appeal was heard and dismissed in a judgment delivered on the 19th December, 2016. Thereby upholding the decision of the Magistrate Court on the no case submission.

Still dissatisfied, the Appellant filed a notice of appeal to the Appeal Court on the 3rd January, 2017.

ISSUES FOR DETEREMINATION

  1. Whether the lower Court was right in holding that the extra judicial statement of the accused “Exhibit C‟ is not a confessional statement mainly because it was not attested to before a superior police officer.
  2. Whether the lower Court did not fall in error in holding that the prosecution/Appellant failed to prove a prima facie case against the Accused/respondent particularly in view of the admissions made by the Accused/Respondent in “Exhibit C‟.
  3. Whether the findings and judgment of the lower Court was not based on facts outside the printed records and largely speculative.

The Court identified issue 2 as the kernel of the complaint of the Appellant against the judgment of the Court below and posited that its resolution will necessarily determine the fate of issues 1 and 3. Hence, the Court proceeded to evaluate issue 2 first.

HELD

Issue 2 was resolved in favour of the Appellant and against the Respondent.

In respect of issues 1 and 3 the Court held that subject-matters of these two issues are to be dealt with during evaluation of evidence at the end of the trial and proceeding to them now especially with the conclusion earlier reached on issue 2 will have prejudicial implications for the substantive trial. Issues 1 and 3 was accordingly discountenanced.

Appeal was allowed and the concurrent judgments of the two Court below were accordingly set aside.

 

The Court further ordered that in view of the premature extensive appraisal of the adduced evidence by the trial Chief Magistrate, the said Charge No. MC/664C/2011 be remitted to the Chief Judge of Cross River State for reassignment to another Chief Magistrate other than the trial Chief Magistrate A.E. Adomi Esq. for trial to be commenced de novo.

RATIO DECIDENDI

CRIMINAL LAW AND PROCEDURE – NO CASE SUBMISSION: Duty of the trial court where a no case submission has been made on behalf of an accused person

“The point cannot be over-emphasized that all the law requires a Court to determine at the stage of a no case submission is whether the prosecution had made out a prima facie case, it is not to evaluate evidence or consider the credibility of witnesses even if the evidence adduced were that of an accomplice. See DABOH VS STATE (1977) 11 NSCC 309 at 315 and STATE VS EMEDO (supra).”Per OYEWOLE, J.C.A. (P. 5, Paras. A-C)

 

CRIMINAL LAW AND PROCEDURE – NO CASE SUBMISSION: Need for Courts to be brief while ruling on a no case submission

“In its ruling on no case submissions, no matter the elaborate submissions of counsel, the Judge must resist the temptation to go into extensive comments or premature evaluation of adduced evidence mainly because at the stage of a no case submission only one side of the case has been heard and it would be prejudicial to comment on the evidence or facts of the case at that stage. See ‘CRIMINAL PROCEDURE IN NIGERIA, LAW AND PRACTICE’ by OLUWATOYIN DOHERTY at 272-273 and R VS COKER (supra). The above clarification becomes most important especially in view of the elaborate and extensive evaluation of the adduced evidence especially exhibit C by the trial Chief Magistrate and the Court below. The wise counsel of KUTIGI JSC (as he then was) on situations such as this readily comes to mind as follows: “At the stage of no case submission, trial is not yet concluded and the Court should not concern itself with the credibility of witnesses or the weight to be attached to their evidence even if they are accomplices. The Court should also at this stage be brief in its ruling as too much might be said which at the end of the case might fetter the Court’s discretion. The Court should at this stage make no observation on the facts.” See AJIBOYE VS STATE (1995) 8 NWLR (PT 414) 408 at 413. In the same vein, ADEMOLA CJN had earlier stated as follows: “Whilst it is not the aim of this Court to discourage a Judge from discussing matters 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 Judge’s discretion…………It is wiser to be brief and make no observation on the facts.” See CHIEF ODOFIN BELLO VS THE STATE (1967) NMLR 1 at 3. All comments on exhibit C made by the Courts below were totally premature, prejudicial and totally out of place at the stage of a no case submission. Evaluation of evidence comes after the entire case is concluded and not at the interlocutory stage of a no case submission.” Per OYEWOLE, J.C.A. (Pp. 5-7, Paras. E-D) – read in context (2018) LPELR-44047(CA)

CRIMINAL LAW AND PROCEDURE – NO CASE SUBMISSION: Need for Courts to be brief while ruling on a no case submission

“I feel strongly in this case that there is the dire need to rekindle the age long advice of our Superior Court that a no case submission should not warrant detailed consideration of the evidence. In OKAFOR VS. THE STATE (2016) LPELR-260604 (SC), Sanusi, JSC held as follows: “I think it is apt to stress here, that when during a criminal trial, a submission of no case to answer is made on behalf of an accused person, that does not mean the trial Court was called upon at that point in time, to express any opinion on the evidence adduced before it. Rather, the trial Court is only called upon to bear in mind and note that there is no legally admissible evidence linking the accused person with commission of the offence he was charged with. If the submission is predicated on discredited evidence, such discredit must be apparent or clear on the face of the record. But if such is not the case, then the submission would be of no moment and shall fall and be overruled and dismissed. It also must be pointed out that at the stage a No Case submission is made, all that the trial Court is supposed to consider is not whether the evidence so far adduced by the prosecution against the accused is sufficient to justify conviction but simply whether the prosecution had made out prima facie case requiring some explanation from the accused person’s regard his conduct or otherwise. See DURU VS. NWOSU (1989) 4 WRL (PT. 113) 24; IKONU VS. THE STATE (1986) 3 NWLR (PT. 28) 340.@ 365; ONAGORUWA VS. THE STATE (1993) 7 NWLR (PT. 303) 49 @ 80.” See also the case of UBANATU VS C.O.P. (2000) LPELR- 3280 (SC) WHERE Kalgo, JSC held that on a “submission of no case to answer” it is wiser for a Judge or Magistrate to be brief of his ruling and make no remarks or observations on the facts: See R. VS. EKANEM 13 WACA 108. This is because in a ruling of an inordinate length, too much might be said which at the end of the case might fetter the discretion of the Judge or magistrate. See ODOFIN BELLO VS. THE STATE (1967) NMLR 1, R. VS. COKER & ORS. 20 NLR 623; AKINPELU AJANI VS. QUEEN 3 WACA 3. In the instant case, the two Lower Courts went in excess of what the law requires of a consideration of a no case submission.” Per ADAH, J.C.A. (Pp. 13-15, Paras. B-B)

 

 

OTHER JUDGMENTS FORM THE COURT

 

NNAJI & ORS v. IWUEKE CITATION: (2018) LPELR-44043(CA)

 

APPEAL – GROUND(S) OF APPEAL: Whether the absence of particulars will render a ground of appeal incompetent

“In resolving this objection, it is important to note that Particulars generally play the role of giving insight into the nature of the Ground of Appeal. They actually assist in bringing to the fore the real complaint of the Appellant against the Judgment Appealed against. That does not however suggest that the Grounds of Appeal cannot stand on their own once they sufficiently explain the Appellant’s grouse against the Judgment Appealed against. See the observation of the Apex Court in the case of PROF. E. A. ABE vs. UNIVERSITY OF ILORIN & ANOR. (2013) LPELR-20643 (SC) where the Court per MUHAMMED, JSC had this to say; “Learned Counsel must be reminded that Grounds of Appeal may stand on their own once they represent an Appellant’s complaint against the decision he is not satisfied with and in respect of which grouse he seeks the Appellate Court’s intervention. Lack of or defective Particulars in a Ground of Appeal would not necessarily render the Ground itself incompetent. See PRINCE (DR) B. A. ONAFOWOKAN & 2 ORS vs. WEMA BANK PLC & 2 ORS NSCQLR VOL. 45 (2011)181 SC and BEST (NIGERIA) LTD vs. BLACK WOOD HODGE (NIGERIA) LTD & 2 ORS NSCQLR VOL. 45 (2011) 849.” (Underlined, mine for emphasis).”Per OHO, J.C.A. (Pp. 8-9, Paras. E-D)

LIMITATION LAW – LIMITATION PERIOD: Effect of an action brought outside a statutorily limited period

“The action filed by the Respondent at the Court below is for the reasons ably appraised in the lead judgment, statute barred. In effect, therefore, the Respondent, who might otherwise have had a cause of action looses the right to enforce the cause of action by judicial process because the period of limitation laid down by the limitation for instituting such an action has elapsed. See Odubeko v Fowler (1993) 7 NWLR (Pt. 308) 637. An action commenced after the expiration of period, with which an action must be brought, stipulated in statute of limitation is not maintainable. See Ekeogu v. Aliri (1991) 3 NWLR (Pt. 308) 637. In short when the statute of limitation prescribes a period, within which an action must be brought, legal proceedings cannot be validly instituted after the expiration of the prescribed period. See also Sanda v Kukawa Local Govt. (1991) 2 NWLR (Pt. 174) 379. I wholly agree that the action is statutebarred cannot be maintained. It therefore must be struck out as not being properly before the Court. This is the fate of the Respondent’s action from the trial Court. In the result, the appellant’s action in the trial Court should be and is hereby struck out.”Per MUKHTAR, J.C.A. (Pp. 80-81, Paras. E-D

 

TORT – DEFAMATION: Definition of a defamatory publication

“…in determining whether the publications in EXHBITS “J”, “B”, “C” and “F” in the circumstances under which they were made were libelous and defamatory of the Respondent, the need to rely on the principles laid down in AKOMOLAFE vs. NEIC LTD (2000) FWLR (PT. 27) 2016 cannot be overemphasized. In this case, it was held that a publication is defamatory if it is calculated to lower the Plaintiff in the estimation of right thinking people or to cause him to be shunned or avoided, or exposes him to hatred, contempt or ridicule or to disparage him in his office, profession or calling or reflect on his character. See also SKETCH vs. AJAGBEMOKEFERI (1989) 1 NWLR (PT. 100) 678; GIWA vs. AJAYI (1993) 5 NWLR (PT. 294) 428.”Per OHO, J.C.A. (Pp. 63-64, Paras. D-B)

ONIGA v. BISONG CITATION: (2018) LPELR-44044(CA)

COURT – DUTY OF COURT: Duty of court to pronounce on every issue properly placed before it for consideration

“It is the duty of a trial Court to consider all issues properly placed before it and where it is shown that a vital issue was left unconsidered, injustice would have occurred justifying the intervention of the Appellate Court. See NNORODIM VS EZEANI (2001) 5 NSCQLR 510.”Per OYEWOLE, J.C.A. (P. 11, Paras. E-F)

 

EVIDENCE – DOCUMENTARY EVIDENCE: Effect of an unsigned document

“As stated earlier, the said Exhibit 2 is on pages 12-13 of the record of appeal. It is a leasehold agreement made on the 30th March, 1976 between the people of Ishibori Town in Ogoja Division of Ogoja province and the Appellant. The representatives of the Lessors were 6 in number and granted the Appellant a lease of 4 plots of land for 99 years upon which they affixed their thumb impressions. The space left for the interpreter was unsigned thereby indicating that the thumb impressions were affixed without the content being interpreted. The transaction was not witnessed by anyone and the Appellant as Lessee with obligations under the said leasehold agreement did not sign the document as well. It goes beyond contention that an unsigned document with glaring lapses such as Exhibit 2 suggests a dubious origin and is totally incapable of being conferred with a cloak of credibility as to assist the case of the Appellant. See GARUBA VS K.I.C. LTD (2005) 5 NWLR (PT 917) 160 and OJO VS ADEJOBI (1978) NSCQR 261.”Per OYEWOLE, J.C.A. (Pp. 6-7, Paras. F-E

JUDGMENT AND ORDER – WRITING OF JUDGMENT: Whether there is a standard format of judgment writing

“There are no hard and fast rules regulating judgment writing as Judges have various styles peculiar to them. For as long as a judgment considers the evidence adduced, issues in controversy between the parties and renders a decision in respect thereof in accordance with the applicable legal principles, it would be valid. See JEKPE VS ALOKWE (2001) 6 NSCQLR 41. Although the judgment of the trial Court in issue here did not formally lay out the issues for determination formulated by either side the issues in contention between them were considered and decided upon. In the entire arguments of the Appellant, no specific issue was identified as having been unattended to in the said judgment which possibly resulted in some injustice to the Appellant.” Per OYEWOLE, J.C.A. (Pp. 11-12, Paras. F-C)

LAND LAW – DOCUMENT OF TITLE: Whether mere production of document of title is sufficient in a claim for declaration of title to land; what the Court must satisfy itself with before the production of documents of title is admitted as sufficient proof of ownership

“Mere production of a registered title document such as Exhibit 2 is not in itself conclusive. The Court has a duty to examine the document and inquire whether the document is genuine and valid, whether it has been duly executed, stamped and registered, whether the grantor had the authority and capacity to make the grant, whether the grantor had in fact what he purported to grant, and whether it had the effect claimed by the holder of the instrument. See JOLASUN VS BAMGBOYE (2010) 44 NSCQR 94 at 128-129, ENILOBE VS ADEGBESAN (2000)11 NWLR (PT 698) 611, ROMAINE VS ROMAINE (1992) 4 NWLR (PT 698) 611, NGENE VS IGBO (2000) 4 NWLR (PT 651) 131, AYORINDE VS KUFORIJI (2007) 4 NWLR (PT 1024) 341, DOSUNMU VS DADA (2002) 13 NWLR (PT 783) 1, KYARI VS ALKALI (2001) FWLR (PT 60) 1481 and DABO VS ABDULLAH (2005) 29 WRN 11, (2005) 7 NWLR (PT 923) 181.”Per OYEWOLE, J.C.A. (Pp. 7-8, Paras. E-C)

 

ASUQUO v. WILLIAM CITATION: (2018) LPELR-44045(CA)

 

APPEAL – FILING/ENTRY OF APPEAL: Effect of failure to file an appeal within the statutory period prescribed by law

“This appeal was filed by the Appellant outside the time specified by Section 24(4) of the Court of Appeal Act, Cap 36 LFN, 2004. The law prescribed for lateness, the grace of seeking for extension of time to appeal. Once a party is late and he refuses or fails to cure the lateness with extension of time to appeal, the party has in all sincerity thrown away his chance of appealing in the case. Since this appeal was filed outside the time frame specified under the law, I also do hold that there is merit in the preliminary objection as raised by the learned counsel for the Respondent. It is for this and more reasons as ably placed by my learned brother in the lead judgment that I also uphold this preliminary objection and strike out this appeal.” Per ADAH, J.C.A. (Pp. 7-8, Paras. DA)

 

COURT – COMPETENCE OF COURT: Effect of a defect in the competence of court

“The law is certain that any defect in competence is fatal for the proceedings of any Court in excess of jurisdiction no matter how well conducted and decided are a nullity. In order not to engage in any fruitless exercise every Court whether at trial or appellate level must be sure of its competence before embarking in the hearing of any cause or matter.” Per ADAH, J.C.A. (P. 7, Paras. B-C)

PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION: Whether a preliminary objection raised on appeal must be resolved before hearing the substantive appeal

“The point raised in the said preliminary objection is a threshold issue which goes to the competence of the entire appeal, it is therefore logical that the said preliminary objection be taken first. See NIDDOCO VS GBAJABIAMILA (2013) 56 NSCQR 230.”Per OYEWOLE, J.C.A. (P. 2, Paras. E-F)

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