SYLVESTER NOSIKE UBAZI V. FEDERAL REPUBLIC OF NIGERIA

Legalpedia Citation: (2025-01) Legalpedia 62223 (SC)

In the Supreme Court of Nigeria

Fri Jan 24, 2025

Suit Number: SC.122C/2019

CORAM

Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Chioma Egondu Nwosu-Iheme Justice of the Supreme Court of Nigeria

Haruna Simon Tsammani Justice of the Supreme Court of Nigeria

Jamilu Yammama Tukur Justice of the Supreme Court of Nigeria

PARTIES

SYLVESTER NOSIKE UBAZI

APPELLANTS

FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS

AREA(S) OF LAW

CRIMINAL LAW, APPEAL, CONSTITUTIONAL LAW, EVIDENCE, ADMINISTRATIVE LAW, PRACTICE AND PROCEDURE, EMPLOYMENT LAW, PUBLIC SERVICE, CORRUPTION

SUMMARY OF FACTS

This case involves an appeal against the judgment of the Court of Appeal, Owerri Division delivered on 29th November, 2018, which overturned the decision of the trial Court that had upheld a No Case Submission made by the Appellant.

The Appellant was charged with seven counts of offenses under the Corrupt Practices and Other Related Offences Act, 2000, including making misleading statements to a public officer, receiving public funds through misdemeanor, making inconsistent statements to a public officer, and using his office to confer corrupt advantage. The charges stemmed from allegations that the Appellant was simultaneously employed by both the Legal Aid Council and the Nigerian Security and Civil Defence Corps (NSCDC) between 2007 and 2010, receiving salaries from both institutions.

At the trial Court, after the prosecution called 4 witnesses and tendered 15 Exhibits, the Appellant filed a No Case Submission which was upheld by the trial Court. Dissatisfied, the Respondent (Federal Republic of Nigeria) appealed to the Court of Appeal, which overturned the trial Court’s decision and ordered that the case be remitted for retrial. The Appellant then appealed to the Supreme Court.

HELD

The appeal was dismissed.
The Supreme Court held that the Court of Appeal was wrong in striking out the Appellant’s objection to Ground 1 of the Respondent’s Notice of Appeal for non-compliance with Order 10 Rule 1 of the Court of Appeal Rules, as the objection was not to the entire appeal but only to a single ground.
The Supreme Court, however, affirmed the Court of Appeal’s judgment that the evidence adduced by the prosecution was sufficient to establish a prima facie case requiring the Appellant to enter his defense.
The Court held that at the stage of a No Case Submission, what is required is not whether the evidence is sufficient to justify conviction, but whether the prosecution has made out a prima facie case requiring at least some explanation from the Appellant.
The Supreme Court upheld the Court of Appeal’s order for the case to be remitted to the Chief Judge of Abia State for reassignment to another judge for retrial.

ISSUES

Whether the Court of Appeal was right in discountenancing the Appellant’s objection to the competence of Ground No.1 of the Respondent’s Notice of Appeal before the said Court below?

Whether the Court of Appeal was right in holding that the prosecution/Respondent did not need to call the Director-General Legal Aid Council (who was said to have been misled in the charge) to testify as a witness, in the given circumstances of the case?

Whether the Court of Appeal was right in holding that the Respondent made out a prima facie case, requiring the Court to call on the Appellant to enter his defence and give some explanation?

RATIONES DECIDENDI

PRELIMINARY OBJECTION – DISTINCTION BETWEEN OBJECTION TO ENTIRE APPEAL AND OBJECTION TO A SINGLE GROUND

It is the argument of the Appellant that the objection was not to the entire appeal but only to a ground of the appeal and one of the issues. In other words, the Appellant sought to argue that the objection did not amount to a preliminary objection. What is a preliminary objection? In Abba v. S.P.C.D.N. Ltd (2013) 11 NWLR (Pt. 1364) 86 this Court held that a preliminary objection to the hearing of an appeal, is an opposition to the hearing of the appeal by the respondent before opening of oral submission by the appellant. The purpose of a preliminary objection, if successful, is to terminate the hearing in limine either partially or totally. (P. 101, paras. D-E). – Per CHIOMA EGONDU NWOSU-IHEME, J.S.C.

SCOPE OF PRELIMINARY OBJECTION – NOT APPLICABLE TO INDIVIDUAL GROUNDS OF APPEAL

In Nwaolisah v. Nwabufoh(2011) 14 NWLR (Pt. 1268) 600, it was decided that a preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal. This is because if it succeeds, that is the end of the appeal. [NEPA v. Ango (2001) 15 NWLR. (Pt. 737) 627 referred to.] (P. 641, para. E).– Per CHIOMA EGONDU NWOSU-IHEME, J.S.C.

PRELIMINARY OBJECTION – PURPOSE AND SCOPE

In Polaris Bank Ltd. v. Forte Oil Plc (2023) 5 NWLR (Pt. 1876) 179 this Court was firm in holding that ‘a preliminary objection is only raised to the hearing of an appeal, and not to a few grounds of appeal. The purport of preliminary objection is the termination or truncation of the appeal in limine. A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal when there are other grounds that can sustain the appeal. In such a situation, a preliminary objection is not the appropriate procedure to deploy against defective grounds of appeal when there are other grounds, not defective, which can sustain the hearing of the appeal.’ – Per CHIOMA EGONDU NWOSU-IHEME, J.S.C.

NO CASE SUBMISSION – WHEN TO UPHOLD

In a bid to establish the potency of the No Case Submission filed by him, the learned Counsel for the Appellant dissected the elements of the offences in the seven counts charge against him and submitted that the Court of Appeal erred when it held in the given circumstances of this case, that the Respondent made out a prima facie case, requiring the Court to call the Appellant to enter his defence and give some explanation. He relied on Ibeziako v. C.O.P. (1963) 1 All NLR. 60 at 63-64 where the Court set out the guidelines for upholding a no case submission as showing that- a. The Prosecution has failed to prove an essential element of the alleged offence. b. The evidence has been so discredited as a result of cross examination; and c. The evidence is so manifestly unreliable that no reasonable tribunal will convict on it.– Per CHIOMA EGONDU NWOSU-IHEME, J.S.C.

NO CASE SUBMISSION – TEST TO BE APPLIED

This Court has laid down in a long line of cases the position of the law as it relates to the filing of a ‘No Case Submission’. In Tongo v. COP (2007) LPELR -3257 (SC) Onnoghen, CJN held thus: ‘It should always be borne in mind that at the stage where a no case submission is made particularly where learned counsel indicates intention not to rely on same, what is to be considered by the Court is not whether the evidence produced by the prosecution against the accused is sufficient to justify conviction, but whether the prosecution has made out a prima facie case requiring at least some explanation from the accused person as regards his conduct or otherwise.’ – Per CHIOMA EGONDU NWOSU-IHEME, J.S.C.

NO CASE SUBMISSION – APPROACH BY TRIAL COURT

When a submission of no prima facie case is made on behalf of an accused person, the trial Court is not thereby called upon at that stage to 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. – Per CHIOMA EGONDU NWOSU-IHEME, J.S.C.

MEANING OF PRIMA FACIE CASE

Prima facie literally means ‘at first sight’, or ‘based on first impression’. It therefore would not require any indebt examination of the evidence presented in order to determine whether a case has been made out. As the Court below stated, at this stage, the guilt or innocence of the accused is not in issue. It is whether there is enough evidence before the Court to enable it call upon the accused person to give some explanation. See Ikomi v. State (1986) NSCC 730 at 731. – Per CHIOMA EGONDU NWOSU-IHEME, J.S.C.

PRIMA FACIE CASE – MEANING AND SCOPE

Nnamani JSC in Duru v. Nwosu (1989) 1 NWLR. (Pt. 113) 24 at 43 in explaining ‘Prima facie’ said: ‘It seems to me the simplest definition is that which says that- there is ground for proceeding. In other words, that something has been produced to make it worthwhile to continue with the proceeding. On the face of it, suggest that the evidence produced so far indicates that there is something worth looking at.’ – Per CHIOMA EGONDU NWOSU-IHEME, J.S.C.

PRIMA FACIE CASE – STANDARD REQUIRED

As long as sufficient evidence had been led to warrant curiosity as to the guilt of the Appellant, or to instigate a genuine need to elicit clarifications from the Appellant himself, a prima facie case has been made. What occurs at the close of evidence as regards the eventual finding of guilt, is a different issue all together. – Per CHIOMA EGONDU NWOSU-IHEME, J.S.C.

DOCUMENTARY EVIDENCE – SPEAKING FOR ITSELF

It is my view that those Exhibits and all other evidence presented at trial were essentially documentary. It is trite that documents speak for themselves, and documentary evidence is the best evidence ~ S.S. GMBH v. T.D. Ind. Ltd (2010) 11 NWLR (Pt. 1206) 589. – Per CHIOMA EGONDU NWOSU-IHEME, J.S.C.

TRIAL JUDGE’S APPROACH TO NO CASE SUBMISSION

The record of proceedings shows that the learned trial Judge wrote what could be termed a full judgment on the no case submission made by the Appellant’s Counsel. That is not in criminal procedural jurisprudence how the matter should have been handled. At the stage of no case submission at the close of the prosecution’s case, what is required of a trial Court is not to evaluate or attach weight to the evidence led by the prosecution at that stage or to write a lengthy judgment. A ruling on a ‘No Case Submission” should be as brief as possible and not in any way go into evaluation of the evidence led. – Per HELEN MORONKEJI OGUNWUMIJU, J.S.C.

PRIMA FACIE CASE – DISTINCTION FROM PROOF BEYOND REASONABLE DOUBT

Therefore, the issue is not whether the prosecution has proved the charge against the defendant beyond reasonable doubt. At pages 218 – 219 per Shoremi JCA in FAGORIOLA v. FRN (2013) 7 S.C.N.J quoted this relevant part from the ruling of the lower Court: ‘I intend to maintain a clear mind to receive the defence of the accused person and adjudicate on the totality of the evidence in this matter.’ It follows that what has to be considered at the stage of a No Case Submission is not whether the evidence against the defendant is sufficient to justify conviction but whether the prosecution has made a prima facie – case requiring at least some explanation from the defendant. – Per HELEN MORONKEJI OGUNWUMIJU, J.S.C.

EFFECT OF EVALUATING EVIDENCE AT NO CASE SUBMISSION STAGE

As earlier observed, the trial Judge did not stop at merely stating that the evidence before him was insufficient to ground a prima facie case or that the evidence of the prosecution witnesses were discredited during cross examination and could not ground a prima facie case, the Court went further to evaluate the evidence of the prosecution and to determine the innocence of the defendant. In the circumstances, that trial Judge can no longer adjudicate on the matter having made conclusions already. – Per HELEN MORONKEJI OGUNWUMIJU, J.S.C.