DR. DANJUMA ABDULLAHI V FEDERAL REPUBLIC OF NIGERIA

CORAM

Muhammed Lawal Shuaibu-Justice of the Court of Appeal

Abdullahi Muhammad Liman-Justice of the Court of Appeal

Victoria Tochukwu Nwoye-Justice of the Court of Appeal

PARTIES

DR. DANJUMA ABDULLAHI V FEDERAL REPUBLIC OF NIGERIA

APPELLANTS 

FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS 

AREA(S) OF LAW

APPEAL, CRIMINAL LAW AND PROCEDURE, CONSTITUTIONAL LAW, HUMAN RIGHTS, ADMINISTRATIVE LAW, PRACTICE AND PROCEDURE, EVIDENCE, JUDICIAL DISCRETION

SUMMARY OF FACTS

This appeal arose from a decision of the High Court of Kebbi State delivered on 9th June, 2022, which overruled the Appellant’s No Case Submission. The case began when the Respondent sought leave of the lower Court to prefer a charge against the Appellant through an application filed on 23rd June, 2020. Upon the grant of leave, the Appellant was arraigned, and the case proceeded to trial. The Respondent called three witnesses and tendered several documents to prove its case. Midway through the trial, with just one witness left for the prosecution, the Appellant filed a Preliminary Objection challenging the competence of the charge.

The trial continued, and at the close of the prosecution’s case, the Appellant raised a No Case Submission, which was overruled by the trial court. The court ordered the Appellant to enter his defense. Aggrieved by this decision, the Appellant filed the instant appeal on 25th November, 2022, following leave granted by the Court of Appeal on 16th November, 2022.

HELD

1.The appeal was dismissed for being meritless.

2.The Court held that the Respondent had complied with the requirements of Section 185(b) of the Criminal Procedure Code in applying for leave to prefer a charge against the Appellant.

3.The Court held that the totality of evidence presented by the prosecution against the Appellant required explanations, and therefore the Lower Court was right in overruling the Appellant’s no case submission.

4.The Court held that deferring the ruling on the Appellant’s preliminary objection until the final judgment was in accordance with Section 399(2) of the Kebbi State Administration of Criminal Justice Law, 2021.

5.The Court ordered an accelerated hearing of the case by the lower Court.

ISSUES

1.Whether the lower Court was right to have held that the Respondent had made out a prima facie case against the Appellant warranting him to enter a defense.?

2.Whether the lower Court was right to have relied on the provisions of Section 399(2) of the Kebbi State ACJL 2021 to say that it will deliver its ruling on the objection to the charge raised by the Appellant alongside its final judgment.?

3.Whether the refusal of the lower Court to deliver ruling on the Notice of Preliminary Objection violated the fundamental right of the Appellant.?

RATIONES DECIDENDI

FILING OF CRIMINAL CHARGES – REQUIREMENTS FOR LEAVE TO PREFER A CHARGE:

“By virtue of the Section 185 (b) of the Criminal Procedure Code above, is that in preferring a charge against an accused person to be tried for a criminal offence, leave of the High Court judge is required to be sought and obtained. In GONI V. STATE (1996) 7 NWLR (PT. 458) 111 at 121 — 122, it was held that the provisions of Section 185 (b) of the Criminal Procedure Code on requirements of leave to prefer a charge in the High Court are mandatory and there cannot be a valid trial in the High Court where the provisions of Section have not been complied with. In other words, failure to comply with the requirements of Section 185 (b) of the Criminal Procedure Code is not a mere irregularity but the non-compliance renders such trial a nullity.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

COMPLIANCE WITH REQUIREMENTS FOR FILING CRIMINAL CHARGES – DOCUMENTS REQUIRED:

“It is settled and parties are ad idem that by Section 185 (b) of the Criminal Procedure Code, an application for leave to prefer a charge shall contain a copy of the charge sought to be preferred, the names of the witnesses who shall give evidence at the trial and proof of evidence (written statements) which shall be relied upon at the trial. At page 1 of the record of appeal, the following documents accompanied the Respondent’s application for leave to prefer a criminal charge against the Appellant herein. These are: 1. A copy of the Charge Sheet. 2. Proof of evidence which shall be relied upon at the trial. 3. Statement of the Accused person. 4. List of exhibits and 5. Names and addresses of witnesses. The above documents in my humble view, sufficiently satisfied the requirements contemplated in Section 185 (b) of the Criminal Procedure Code.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

FILING SEPARATE CHARGE – WHETHER REQUIRED AFTER LEAVE IS GRANTED:

“As rightly argued by Counsel to the Respondent that filing separate charge is not within the contemplation of the law and neither is it a prerequisite for granting leave to prefer a charge against an accused person. Thus, the learned trial judge had exercised his discretion judicially and judiciously based on all the material placed before him by the Respondent.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

NO CASE SUBMISSION – PURPOSE AND APPLICATION:

“Now turning back to the propriety of the lower Court’s decision on the no case submission, a no case submission applies where the prosecution has not established a prima facie case against the accused person. This means that there is no evidence on which the Court would convict, even if the Court believed the evidence adduced by the prosecution. See FAGORIOLA V. FRN (2013) 17 NWLR (PT. 1353) 322 and IKUFORIJI V. FRN (2018) LPELR — 43884 (SC).” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

NO CASE SUBMISSION – REQUIREMENTS FOR SUCCESS:

“It was held in plethora of judicial decisions that an accused person who wants to succeed on a no case submission must establish the followings: (a). That the prosecution has failed to prove the ingredients or some of the ingredients of the offence charged. (b). That the evidence adduced by the prosecution has been discredited during cross-examination, or (c). That the evidence adduced by the prosecution is so manifestly unreliable, that no reasonable Court or Tribunal could safely convict on it. See EMEDO V. STATE (2000) FWLR (PT. 130) 1654 and UGWU V. STATE (2013) 4 NWLR (PT. 1343) 172.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

NO CASE SUBMISSION – COURT’S DUTY WHEN SUBMISSION IS MADE:

“It was however held in TONGO & ANOR V. COP (2007) LPELR — 3257 (SC) that 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 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 which he is charged. However, where 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 MUHAMMED LAWAL SHUAIBU, J.C.A.

EVIDENCE AGAINST ONE’S INTEREST – ADMISSIBILITY AND RELEVANCE:

“The evidence of PW2 which centred on the identification of the Appellant and confirmed his employment status with Waziri Umaru Polytechnic does not qualify as evidence by person against his interest. After all, a Court cannot ignore the evidence of a person against his own interest as it is relevant and admissible evidence. See NWACHUKWU V. STATE (2002) 7 SC (PT. 1) 124 and AKANINWO & ORS V. NSIRIM & ORS (2008) 1 SC (PT. 111) 15.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

FAILURE TO CROSS-EXAMINE – EFFECT ON EVIDENCE:

“Furthermore, in the face of weighty nature of the evidence of PW3, the failure of the Appellant to cross-examine him left the Lower Court with no choice than to accept PW3’s evidence. In effect, the totality of the evidence of the Respondent (prosecution) against the Appellant requires some explanations and the Lower Court was therefore right in overruling the Appellant’s no case submission.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

PRELIMINARY OBJECTION TO JURISDICTION – WHEN COURT MUST RULE:

“It is settled principle of law that whenever a preliminary objection is raised as to the competence of a trial Court to hear a matter, such a Court is duty bound to determine the said objection one way or the other before going into the substantive matter or case.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

OBJECTION TO IMPERFECT CHARGE – WHEN IT CAN BE RAISED:

“The provision of Section 233 of the Administration of Criminal Justice Law of Kebbi State, 2021 emphatically state as follows: ‘233: Objections shall not be taken or entertaining during proceedings or trial on the ground of an imperfect or erroneous charge'” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

TIMING OF OBJECTION TO CHARGE – EFFECT OF DELAY:

“Instructively, the Appellant’s in the instant case has waited till after 13 months and 15 adjournments, and also after two witnesses had already testified before raising the said Preliminary Objection. From the clear provision of Section 233 of the Kebbi State Administration of Criminal Justice Law, 2021 which is impari materia with Section 221 of the Administration of Criminal Justice Act, 2015, objection raised on account of imperfect or erroneous charge cannot be taken during trial. That in my view does not impede or breach the right of the Appellant to fair hearing. It only encourage an accused person to be vigilant and timeous in raising that type of objection.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

DEFERRING RULING ON PRELIMINARY OBJECTION – STATUTORY AUTHORITY:

“On the Appellant’s complaint of deferring the ruling on the said preliminary objection perhaps, Learned Senior Counsel for the Appellant is oblivious of Section 399 (2) of the said Kebbi State Administration of Criminal Justice Law, 2021 which provides as follows: ‘399 (2): After the plea has been taken, the defendant may raise any objection to the validity of the charge at any time before judgment, provided that such objection shall only be considered along with substantive issues and/or a ruling thereon made at the time of delivery of judgment.'” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

PRELIMINARY OBJECTION – EFFECT ON SUBSTANTIVE TRIAL:

“In ONNOGHEN V. FRN (2020) 12 NWLR (PT. 1738) 2289 at 344, it was inter alia held that an application for preliminary objection cannot stop the trial Court from proceeding with substantive trial in view of Section 396 (2) of the Administration of Criminal Justice Act, 2015 which allows for a consideration of any objection to be done at the time of delivery of judgment in the substantive case. I totally subscribe to the view that the above provisions allow for speedy trial of cases and is meant to obviate the difficulties often encountered by trial judges who are bogged down by interlocutory appeals filed by defence Counsel in order to stulfy proceedings and possibly to truncate trials of accused persons. Thus, deferring the ruling of the Appellant’s preliminary objection till final judgment on the case by the lower Court was right and same is in accordance with the applicable law.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

CASES CITED

STATUTES REFERRED TO

• Criminal Procedure Code, Section 185(b)

• Kebbi State Administration of Criminal Justice Law, 2021, Sections 233 and 399(2)

• Administration of Criminal Justice Act, 2015, Sections 221 and 396(2)

• Constitution of the Federal Republic of Nigeria 1999 (as amended)

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