(2021) Legalpedia (CA) 69311
In the Court of Appeal
HOLDEN AT GOMBE
Monday, June 28, 2021
Suite Number: CA/LAG/CR/207/2021
JOSEPH SHAGBAOR IKYEGH
OBANDE FESTUS OGBUINYA
ABUBAKAR SADIQ UMAR
MRS. FLORIANA DE-STEFANI || FEDERAL REPUBLIC OF NIGERIA
AREA(S) OF LAW
CRIMINAL LAW AND PROCEDURE
JUDGMENT AND ORDER
PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The substantive Complainant, Waterside Properties Limited, through its legal representative wrote a petition to the Economic and Financial Crimes Commission, EFCC, against the Appellant wherein it alleged inter alia; that the Appellant, its erstwhile tenant at No. 14A/B Bayo Kuku Street, Ikoyi, Lagos, forged fake title documents with which she was claiming ownership of the property and that she illegally leased out the property, on the premise of being the owner, to Total Nigeria Limited without its consent. The Complainant urged the EFCC to investigate and possibly prosecute the Appellant for the offences disclosed in the petition. The EFCC, after due investigation of the allegations in the petition, arraigned the Appellant before the High Court of Lagos State, Ikeja Division, on a 7-count amended information for the offences of stealing, forgery, use of false documents and obtaining property by false pretence contrary to the provisions of sections 278 (2) (a) and (b), 363 (3) (d) and (e) 364 (1) and (2) and 312 (1) (a) of the Criminal Law of Lagos State of Nigeria, 2011 respectively. The Appellant pleaded not guilty to all the counts in the information. The trial court proceeded to hear the case and at the close of the Respondent’s case, the Appellant made a no-case submission wherein she prayed the lower court to strike out and/or dismiss the information for lack of prima facie case against her. In a considered ruling, the lower court dismissed the no-case submission and called upon the Appellant to open her defence. Displeased with the ruling, the Appellant has lodged this appeal praying this court for an order allowing the Appeal and setting aside the ruling of the High Court and an order dismissing Respondent’s information dated 8 June, 2020 at the High Court of Lagos State, for failure to establish any prima facie case against the Defendant
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ISSUES FOR DETERMINATION
Whether having regard to the totality of the evidence led by the witnesses (pw1 to pw6) and the legally admissible evidence tendered by the respondent at the court below, can it be said that the appellant does not have a case to answer?
BRIEF OF ARGUMENT – WHETHER EXCESSIVE NUMBER OF PAGES IN A BRIEF OF ARGUMENT IS SUFFICIENT TO RENDER SAME INCOMPETENT
“The registered objection orbits around the competence or otherwise of the respondent’s brief of argument, which houses the respondent’s submission against the appeal, that has excessive number of pages contrary to the provision of order 8 rule 2 (a) of the Court of Appeal (Fast Track) Practice Directions, 2014 (the Practice Directions), which allows a maximum of 15 pages for a brief of argument. Indisputably, the respondent’s brief of argument has 27 pages as against 15 pages as ordained by the prescription of order 8 rule 2 (a) of the Practice Directions. The fate of the objection, which is determinative of the fortune of the respondent’s brief of argument, is tucked away in the case-law firmament. In Emerhor v. Okowa (2016) 11 NWLR (Pt. 1522) 1 at 25, Okoro, JSC, insightfully and incisively, declared: The learned senior counsel had urged this court to strike out the appellants’ brief and hold that there is no argument of the appeal before this court. I have no reason to do that. The fact that the brief of the appellant comprises 41 pages instead of the maximum of 40 pages prescribed by paragraph 9(a) of Practice Direction on Election Appeals to the Supreme Court, is not enough reason to strike out the brief. I can only admonish counsel and parties to try and limit the length of their briefs to 40 pages as directed by the Practice Direction aforesaid. See, also, Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 114. It is now settled law, discernible from the magisterial pronouncement in these ex cathedra authorities, that excessive/superfluous pages of brief of argument is a mere irregularity. It does not go to the root of the brief as to it taint it with incompetence. This current inelastic position of the law, with due respect, drowns the appellant’s allegation that the respondent’s brief of argument was/is plagued by incompetence on the footing of excess number of pages. In effect, the said brief, which is in the heat of being ostracised from the appeal, has not offended the law as to attract the caustic sanction of striking out by this court”.
EVALUATION OF DOCUMENTARY EVIDENCE – CONCURRENT JURISDICTION OF TRIAL AND APPELLATE COURTS IN EVALUATION OF DOCUMENTARY EVIDENCE
“It is germane to place on record, upfront, that flood of documentary evidence were presented before the lower court by the respondent. Interestingly, the law, in order to repel and tame injustice, donates concurrent jurisdiction to this court and the lower court on evaluation of documentary evidence, see Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sanni (2014) 16 NWLR (Pt. 1433) 299; Atoyebi v. FRN (2018) 5 NWLR (Pt. 1612) 350.
NO-CASE SUBMISSION – INSTANCES WHEN A NO-CASE SUBMISSION WILL BE UPHELD – NATURE OF A COURT’S RULING ON A NO-CASE SUBMISSION
“By way of prefatory observations, a no-case submission connotes that there is no evidence on which a court, even where it believes it, can convict an accused person, see C.O.P. v. Amuta (2017) 4 NWLR (Pt. 1556) 376; Odey v. State (2019) 2 NWLR (Pt. 1655) 97. It is a method, usually, employed by an accused person, as an alternative to defence, at the conclusion of the prosecution’s case in a criminal trial. In Ibeziako v. C.O.P. (1963) 1 SCNLR 99/(1963) 1 All NLR 61 at 68, the Supreme Court adopted the two circumstances, evolved by the English Court, under which a no-case submission will be upheld thus: when there has been no evidence to prove an essential element in the alleged offence; when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal can safely convict on it. The case-law decrees that a trial court’s ruling on a no-case submission must be brief, not lengthy, and should not make remarks on facts. The reason is not far-fetched. A lengthy ruling, touching on the facts and evidence, will likely fetter its discretion in the event that it overrules it. A no-case submission does not invite a trial court to express opinion on the evidence or credibility of witnesses. The bounden duty of the trial court is for it to ascertain whether there is any evidence, no matter the quantum, monumental or infinitesimal, that links the accused person with the offence preferred against him, see Ubanatu v. C.O.P. (2000) 1 SCNQ 89; Omisore v. State (2005) 12 NWLR (Pt. 940) 591; Uzoagba v. C.O.P. (2014) 5 NWLR (Pt. 1401) 441; Okafor v. State (2016) NWLR (Pt. 1502) 248; Egharevba v. FRN (2016) 10 NWLR (Pt. 1521) 431; C.O.P. v. Amuta (supra); Oko v. State (2017) 17 NWLR (Pt. 1593) 24; Adama v. State (2018) 3 NWLR (Pt. 1605) 94; Ikuforiji v. FRN (2018) 6 NWLR (Pt. 1614) 742; Alex v. FRN (2018) 7 NWLR (Pt. 1618) 228; Martins v. FRN (2018) 13 NWLR (Pt. 1637) 533; Chyfrank v. FRN (2019) 6 NWLR (Pt. 1667) 143; Amah v. FRN (2019) 6 NWLR (Pt. 1667) 160. In other words, the law requires the court to glean, from the evidence on record, if the prosecution has established a prima facie case against an accused person vis-à-vis the crime levelled against him.
PRIMA FACIE – MEANING OF PRIMA FACIE
“Historically, prima facie, which has been disobedient to a single definition, traces the paternity of its significance to the Indian case of Sher Singh v. Jitend-dranthen (1931) 1 LR 59 Calc. 275 which was adopted by the Nigerian Supreme Court in Ajidagba v. IGP (1958) SCNLR 60. It denotes the existence of ground(s) for proceeding in a matter. It is not coterminous with proof which comes at the twilight of a proceeding when a court will decide the fate of a culprit. A piece of evidence discloses a prima facie case when it is such that, if unrefuted and believed, it will be enough to prove the case against an accused person, see Abacha v. State (2002) 11 NWLR (Pt. 779) 437; Ubanatu v. State (supra); Abogede v. State (1996) 4 SCNJ 223; Uzoagba v. C.O.P (supra); Okafor v. State (supra); C.O.P. v. Amuta (supra); Oko v. State (supra); Ibrahim v. State (2018) 1 NWLR (Pt. 1600) 279; Ehindero v. FRN (2018) 5 NWLR (Pt. 1612) 301; Felimon Ent. Ltd. v. Chairman, EFCC (2018) 7 NWLR (Pt. 1617) 56; Igwe v. State (2019) 3 NWLR (Pt. 1660) 417”.
OFFENCE OF STEALING -INGREDIENTS OF THE OFFENCE OF STEALING A PROSECUTION MUST PROVE AGAINST AN ACCUSED PERSON
“The ingredients of the offence of stealing, which the prosecution must prove against an accused, consist, videlicit: (a) that the thing stolen is capable of being stolen; (b) that the accused has the intention of permanently depriving the owner of the thing stolen; (c) that the accused is dishonest; (d) that the accused had unlawfully appropriated the thing stolen to his own use; and (e) the ownership of the thing stolen, see Oshinye v. C.O.P. (1960) 5 SC, 105; Otti v. State (1991)1 NWLR (Pt. 207) 103; Mohammed v. State (2000) 12 NWLR (Pt. 682) 596; Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382; Adegobi v. State (2011) 12 NWLR (Pt. 1261) 347; Oyebanyi v. State (2015) 14 NWLR (Pt. 1479) 270; Ayemi v. State (2016) 12 NWLR (Pt. 1525) 51; Odey v. State (2019) 2 NWLR (Pt. 1655) 97; Chyfrank Nig. V. FRN (2019) 6 NWLR (Pt. 1667) 743; Amah v. FRN (2919)6 NWLR (Pt.1667) 111”.
OFFENCE OF FORGERY – INGREDIENTS OF THE OFFENCE OF FORGERY
“Forgery is an amphibious concept that embraces criminal and civil matters. The ingredients of the offence of forgery are: (a) existence of an original/genuine document; (b) that the document is forged; (c) that forgery was done by the accused person; (d) that the accused know that it was forged; and (e) that the accused intended the forged document to be acted upon as an original/genuine to the detriment of the victim, see Alake v. State (1991) 7 NWLR (Pt. 205) 567; APC v. PDP (supra); Duru v. FRN (2008) 12 NWLR (Pt. 1632) 20; Obioma v. State (2020) 3 NWLR (Pt. 1710) 45; Modibo v. Usman (2020) 3 NWLR (Pt. 1712) 470.
FALSE PRETENCE – MEANING OF FALSE PRETENCE – INGREDIENTS A PROSECUTION MUST PROVE TO SUCCEED IN A CHARGE OF OBTAINING BY FALSE PRETENCE
“According to section 20 of the Advance Fee Fraud and Other Related Offences, false pretence means “a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present, which representation is false in fact or law, and which the person making it knows to be false or does not believe it to be true”. To succeed in a charge of obtaining by false pretence, the prosecution must prove: (a) that there is a pretence; (b) that the pretence emanated from the accused person; (c) that the pretence was false; (d) that the accused person knew of its falsity or did not believe in its truth; (e) that there was an intention to defraud; (f) that the thing is capable of being stolen; (g) that the accused person induced the owner to transfer his whole interest in the properly, see Onwudiwe v. FRN (supra); Ikpo v. State (2018) 4 NWLR (Pt. 1609) 175; Enukorah v. FRN (2018) 6 NWLR (Pt.1615) 355; Darlington v. FRN (2018) 11 NWLR (Pt. 1629) 152; Duru v. FRN (2018) 12 NWLR (Pt.1632) 20; Ifeanyi v. FRN (2018)12 NWLR (Pt.1632) 164; Nweke v. FRN (2019) 10 NWLR (Pt. 1679) 51; Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221; Ronke v. FRN (2020) 2 NWLR (Pt. 1709) 574”.
STATUTES REFERRED TO
Advance Fee Fraud and Other Related Offences|Court of Appeal (Fast Track) Practice Directions, 2014|
Babatunde Ogungbamila, Esq. for the appellant.|Ahmed Yerima, Esq. for the respondent.|
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