EKITI STATE ADMINISTRATION OF CRIMINAL JUSTICE LAW 2014 ON NO-CASE SUBMISSION: THE CASE FOR AN AMENDMENT
OLUWAKEMI STEPHEN ADEYEMI
This article was an attempt at considering the Ekiti State Administration of Criminal Justice Law №2 of 2014 (The Law)’s provisions on No Case submission in the light of judicial pronouncement on the principles of No Case submission. This article examined the principles that guide No Case submission in the light of judicial pronouncements on the principle. This article then canvassed for an amendment of The Law to reflect judicial pronouncements on the principles of No Case submission (i.e. codification). This writer suggested a codification of the principles of No Case submission so Nigerian courts may cease to refer to English authorities on the subject matter and find support in an autochthonous legislation. This article further recommended that the Prosecution should always have a right of reply to a No Case submission.
The Ekiti State Administration of Criminal Justice Law №2 of 2014 came in the wake of the enactment of the Lagos State Administration of Criminal Justice Law No 10 of 2007 and its further repeal and reenactment as the Lagos State Administration of Criminal Justice Law (Repeal and Reenactment) Law №32 of 2011. It broke free from the tradition of the Criminal Procedure Act and Laws of the States within the South of Nigeria. However, it failed to break free from some traditions of the Criminal Procedure Laws in respect of a No Case submission. The aim of this write-up is to evaluate the principle of No Case submission as it stands presently in Ekiti State and to vigorously canvass for the enactment of a more comprehensive statutory provision on the principles that should guide the court and the ministers at the temple of justice in Ekiti State when confronted with a Defendant’s No-Case submission.
3.0. PRINICIPLES GUIDING NO-CASE SUBMISSION
The principle of no-case submission suggests the existence of a criminal case in which the Prosecution has closed its case and the defendant(s) urge upon the court that the evidence before the court is not sufficient enough to require him/them to enter his/their defence. The statutory provisions guiding a No-Case submission is found in Section 239 of The Law; I take the liberty to spell them out fully:
1. 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 discharge him in respect of that particular charge.
2. Where the defendant is represented by a legal practitioner, he shall by application invoke the provision of subsection (1) of this Section.
3. Where the defendant is not represented by legal practitioner, the Court shall discharge him after hearing the prosecution on the issue consider, if the provision of subsection (1) of this Section avails the defendant.
Commenting on the principle of No-Case submission, the Supreme Court in Adeyemi v. State per Karibi-Whyte JSC opined that: “The expression that “The accused has no case to answer” is equivalent to the provision in the United Kingdom, of the power vested in the Judge to withdraw a case from the jury. Thus, when counsel makes a submission that the accused has no case to answer, the meaning is that in law there is no evidence on which, even if believed, the court can convict — See Ibeziako v. COP (1963) 1 All NLR 61. Hence the question whether or not the evidence is believed is immaterial, and does not arise. Similarly the credibility of the witnesses is not in issue. The governing considerations are that (a) an essential ingredient of the offence having not been proved, or (b) where the evidence has been so discredited and rendered unreliable by cross examination that it would be unsafe to convict on such evidence. What then is the consequence of a successful submission (sic?). It has been held in Ibeziako v. COP (Supra) that such a discharge is equivalent to an acquittal and a dismissal of the complaints on merits — See Police v. Marke (1957) 2 FSC 5.” A classical manifestation of a situation where a no case submission was upheld is the case of Emedo v. State. Here, the evidence against the Appellant/Accused on examination-in-chief of PW 5 was that: “I heard someone shouting that Ossai wants to kill him. The person was shouting and asking if any persons were around. When I heard the persistent cry that Ossai and his people want to kill him, I was moved. So I rowed towards the scene. I stopped at a spot and walked and I saw that the person who was shouting was Ijeoma Maduagwu. I walked quietly to the scene and saw three persons holding him. They held him by his hands towards his back very firmly and one was tying a cloth around his neck. I now say I saw four persons. One was holding Ijeoma. Emeka Nwapa the 4th accused left Ijeoma and pursued me. I was afraid and quietly ran away. I ran to where I parked my canoe and rowed away. When I returned home, I told a friend Romanus Ossai what I saw. Out of the four persons I saw, I know 1st, 3rd and 4th accused. I did not recognize the fourth person. Since that incident out of fear, I have not returned to my pond. I later heard that Ijeoma Maduagwu was missing. I then met one Sunday, the son of Ijeoma and told him what I saw in the bush. Sunday took me to the Police and I made my statement to the Police.” However on cross-examination, PW 5 was asked whether he stated this: “it was after some days I heard that Chief Ijeoma was killed in the bush and I suspected that he was the man shouting for help on that day I went for fishing.” to the Police and he replied in the affirmative. As this was the only incriminating evidence against the Appellant and it was discredited under cross-examination, it was not surprising for the Supreme Court to agree with the reasoning of the Trial Judge and hold that: “It can be seen that the testimony of PW 5 has been discredited as a result of cross-examination and no reasonable tribunal could safely convict any of the appellants on such evidence.”
For the Prosecution to successfully challenge a no case submission, all it needs to do is to show that it has put up a prima facie case and not that it has put up a case beyond reasonable doubt against the defendant. Thus, in Ekwunugo v. FRN, the Supreme Court per Onnoghen JSC observed: “It has to be noted that at the stage where a no-case submission is made by learned counsel for the appellant the issue is not whether the prosecution has/had proved the charge against the appellant beyond reasonable doubt but whether a prima facie case has been made out by the prosecution against the appellant so as to make it necessary for the court to call on the appellant to open his defence to the charge. It is settled law that a prima facie case is made out where the evidence adduced by the prosecution is such that, if uncontradicted would be sufficient to prove the case against the accused person. See Ajiboye v. State (1998) 1 NCLR 355 at 358; (1995) 8 NWLR (Pt. 414) 408; Ajidagba v. IGP (1958) 3 FSC 5.”
If it is understood that a defendant to a criminal charge is presumed innocent until proven otherwise and that he must be proved guilty beyond a reasonable doubt, the requirement of the law that the prosecution by its own evidence alone need just establish a prima facie case if it intends that the defendant should defend himself is reasonable and justifiable enough. Indeed, the courts have had occasion to describe the term proof beyond reasonable doubt a couple of times. This writer will take a clue from the counsel of the Supreme Court per Pats-Acholonu JSC in Shande v. State (2005) 12 NWLR (Pt. 939) 301 at 321: “Although the standard of proof is not that of absolute certainty (that should be in the realm of heavenly trials) the court seised of the matter must convince itself beyond reasonable proof that such and such had occurred. It is essential to stress times without number that the expression proof beyond all reasonable doubt — a phrase coined centuries ago and even applied by the Romans in their well-developed jurisprudence and now verily applicable in our legal system, is proof that excludes every reasonable or possible hypothesis except that which is wholly consistent with any rational conclusions. Therefore, it is safe to assume that for evidence to warrant conviction, it must surely exclude beyond reasonable doubt all other conceivable hypothesis than the accused’s guilt.”
In making a ruling on a no case submission, the courts have been advised by Abbott F.J. in Ajidagba v. IGP (1958) 3 FSC 5 that: “We have been at some pains to find a definition of the term “prima facie case”. The term, so far as we can find has not been defined either in the English or in the Nigerian courts…. A decision to discharge an accused person on the ground that a prima facie case has not been made out against him must be a decision which, upon a calm view of the whole evidence offered by the prosecution, a rational understanding will suggest: the conscientious hesitation of a mind that is not influenced by party preoccupied by prejudice or subdued by fear.” The Supreme Court in Agbo v. State per Fabiyi JSC opined that: “Nnamani JSC (of blessed memory) in Duru v. Nwosu (1989) 1 NWLR (Pt. 113) 24 at 43 maintained that prima facie case means that ‘there is ground for proceeding.’ In other words, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it (prima facie) ‘suggests that the evidence produced so far indicates that there is something worth looking at.’ It is also apt to state it here that in Black’s Law Dictionary, 6th Edition at page 1189–1190, the expression — ‘prima facie case’ has been defined to mean — ‘such as will prevail until contradicted and overcome by the other evidence. A case which has proceeded upon sufficient proof to that stage where it will support finding if evidence to the contrary is disregarded.’ Prima facie evidence is ‘evidence good and sufficient on its face.’ The purport of a no case submission is that the court is not called upon at that stage to express any opinion on the evidence before it. The court is only called upon to take note and rule accordingly that there is before the court no legally admissible evidence linking the accused person with the commission of the offence charged. But if there is legally admissible evidence, however slight, the matter should proceed as there is something to look at: Igabele v. State (2004) 15 NWLR (Pt. 896) 314; Aituma v. State (2007) 5 NWLR (Pt. 1028) 466.”
Now, section 239 of The Law makes it clear that upon a finding by the court that the defendant has no case to answer, the defendant is to be discharged. What is the effect of this ‘discharge’? Does it afford the defendant an opportunity to raise the constitutional defence of autrefois acquit? The Court of Appeal in FRN v Ekwenugo had observed that: “It appears that the trial judge was confused as to the nature of the order to make after a no case submission. Instead of giving a ruling, he gave judgement. This is clearly irregular. He also discharged and acquitted the appellant when all he can do if he upholds a no case submission is to discharge the accused person. Acquittal of an accused person is reserved for the end of the entire case in concluding the defence if the prosecution fails to prove its case beyond reasonable doubt.” The Supreme Court however per Tabai JSC in Mohammed v. State observed that: “[A] discharge following a no case submission under this section has been held to be tantamount to an acquittal. See Nwali v. Inspector General of Police (1956) 1 ERMLR 1; Inspector General of Police v. Marke (1957) 2 FSC 5. It is my respectful view therefore that if this court sustains the no case submission and substitutes therewith, a ruling discharging the appellant, he can no longer be tried de novo by Ogunmekan, J. or any other judge of the High Court of Lagos State. A plea of autrefois acquit would then be successfully raised to terminate the trial de novo.” See also Ubunatu v COP, where the Supreme Court per Kalgo JSC observed that: “It is well settled that after a successful submission of no case to answer has been made, an accused is no longer to be regarded as charged with that offence of which he was charged and must be discharged on the merits.” On the principle of judicial precedent, the holding of the Supreme Court in Ubunatu and Mohammed above must be considered the law on this subject.
It should however be noted that the fact that a judge in holding that a defendant has a case to answer considered inadmissible evidence or evidence not yet on record is not enough to overturn the ruling of the court unless the admissible evidence on record cannot sustain the ruling of the court. This was the purport of the decision of the Supreme Court in Mohammed v State per Tabai JSC: “In coming to the conclusion that there was a prima facie case against the appellant the lower court adopted the principle in the Indian case of Singh v Ji tendranathsen (1931) ILD 59 CALC 275 and Ajidagba v IGP (1958) SCNLR 60 and relied on statements contained in the proof of evidence. I think there is substance in the complaint of the appellant in this regard. Section 286 of the Criminal Procedure Act earlier reproduced above states amply of the evidence in support of the charge. And evidence in section 286 of the Criminal Procedure Act means no less than that tendered in court and tested or liable to be tested in cross-examination and is quite distinct from statements contained in the proof of evidence. I am persuaded by learned counsel for the appellant that in considering whether or not there was a prima facie case against the appellant, the court below was bound to confine itself to the evidence, strictly, so called, tendered in court. However, I am of the view that apart from the extraneous evidence complained of, there is sufficient evidence to justify a finding of there being a prima facie case. The totality of the evidence shows that the appellant travelled with others from Abuja by air to Lagos went to several places in Lagos in a vehicle and finally to the spot where the gun shots were fired at Senator Abraham Adesanya.” Section 251 of the Evidence Act №18 of 2011 provides that: “The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.”
What is the position of the law when or if after a no-case submission is wrongly denied, incriminating evidence is later obtained either from the defendant or from a co-accused? The Supreme Court as far back as 1975 had an opportunity to lay down the law in concrete terms in these words in Wahabi Mumuni & Ors. V. The State, “None of the two cases to which we have referred above is authority for the proposition which has been canvassed at length before us that an accused person whose submission of no case to answer has been overruled is entitled by taking, no further part in the proceedings, to exclude the co-accused’s evidence against him even when the submission is rightly overruled. The co-accused’s evidence is lawful and the court may use it as it may deem fit. Where, however, there is no case for a co-accused to answer at the close of the prosecution’s case, he should be acquitted by the trial judge of the offence charged at that stage of the trial. As Lord Goddard, LCJ, observed in R v. Abbot (1955) 2 All ER 899 at 902, overruling the submission in those circumstances and calling upon such a co-accused to testify in his defence, the co-accused is, in effect, being asked to prove his innocence. Under our law, it is not for an accused person to prove his innocence. By virtue of the provisions of section 22(4) of the Constitution of the Federation (now section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)), he is presumed to be innocent of the offence charged until the prosecution have proved beyond reasonable doubt that he is guilty of that offence.” Adumbrating on this point, Oputa JSC at page 387–388 of Ohuka (supra) noted that: “It is trite law that this confessional statement of the first appellant, though evidence against him, was no evidence against any of his co-accused persons. But if he went into the witness box… and testified on oath … eventhough he but repeated what he told the police in his statement, then his sworn evidence becomes evidence in the case, for all purposes, including evidence against his fellow co-accused persons. The above statement of the law is however subject to one exception and that is — if at the close of the prosecution case (sic), no case has been made against any of the co-accused person, such co-accused may make a submission of no case. If such submission is upheld, any such co-accused will at that stage be acquitted and discharged. If such a submission is overruled and the co-accused rests his case, then the court will go further to consider whether the No case submission was rightly overruled or wrongly overruled. If the submission was wrongly overruled, then the evidence of the self-confessed murderer here, Analaba Ohuka, will not be evidence against his co-accused who rested his case on the prosecution case (sic) and took no further part in the subsequent proceeding and his conviction by the trial court will be set aside. The reason being that there being no evidence against that co-accused at the close of the prosecution case, the trial judge was duty bound and was under an obligation, ex debito justitiae, to withdraw his case from the jury: see R v Charles Clement Abbot (1955) 2 All ER 899 at 902: 39 Cr. App. R. 141 at 149: See also Wahabi Onasanya Mumuni & 13 ors v. The State (1975) 6 SC 79 at pp. 105–109. The remaining instance is where at the close of the prosecution case (sic) there was evidence direct or circumstantial calling for some explanation from the co-accused and instead of going into the witness box to give explanation the co-accused makes a no-case submission and rests his case, then upon overruling his submission rightly the evidence of his self-confessed co-accused will become evidence against him.”
This writer in the light of the principles of no case submission established in case law (some of which have been highlighted above) has a number of recommendations. I recommend that the principles of No-Case submission as enunciated and established in case law over the years should be codified. This will further cut Nigeria’s apron string to her colonial masters (Great Britain). This is perhaps what Section 303 (3) of the Administration of Criminal Justice Act 2014 attempted when it provided thus:
In considering the application of the defendant under section 303, the court shall, in the exercise of its discretion, have regard to whether:
a) an essential element of the offence has been proved;
b) there is evidence linking the defendant with the commission of the offence with which he is charged;
c) the evidence so far led is such that no reasonable court or tribunal would convict on it; and
d) any other ground on which the court may find that a prima facie case has not been made out against the defendant for him to be called upon to answer.
The Law should be amended to reflect these principles and others (already settled in case law) highlighted above. In this way, the law on the subject matter of no case submission will be set on solid stones and may need not be floating/unsettled.
Furthermore, it is my recommendation that, just like in the Administration of Criminal Justice Act 2015, The Law should be amended to reflect the right of the Prosecution to reply when a defendant decides to enter a no-case submission regardless of whether or not he is represented by counsel. The Law is clear that if the Court raises suo motu a no case submission on behalf of a defendant who is unrepresented, the Prosecution has a right of reply. However, if the Defendant is represented by counsel and he raises the no case submission on his own behalf, The Law is silent as to whether or not the Prosecution has a right of reply. This may suggest that the Prosecution has no right of reply to a Defendant’s no case submission. This ought not to be the case. Fair hearing must not just be for the Defendant but also for the State. It seems to this writer, that the Prosecution will more likely desire a no case submission raised by counsel than by the court suo motu. This perhaps explains why Section 303 (1) of the Administration of Criminal Justice Act 2015 provides that: Where the defendant or his legal practitioner makes a no case submission in accordance with the provisions of this Act, the court shall call on the prosecutor to reply.
The Jewish Teacher of the Law, Jesus Christ taught in Matthew 9:17 KJV that: Neither do men put new wine into old bottles: else the bottles break, and the wine runneth out, and the bottles perish: but they put new wine into new bottles, and both are preserved. It seems to this writer that an amendment of the law on No-Case submission is necessary in the light of the suggested areas of amendment. This will make the law more certain and more responsive to the needs of the courts, The State of Ekiti, and the Defendant. Nothing short of this is what the good people of Ekiti State need at this time and indeed deserve. This must be done if it is recognized that no effort of man at taking care of future exigencies in society can be a perfect effort. It can only be a good and honest effort (which will from time to time need amendments) at making sure society functions as a more perfect union; that is what The Law is and we must accept it as such and do the needful.
PS: This article was written while the writer served as a youth corp member at the Ekiti State Ministry of Justice, Department of Civil Litigation and owes its inspiration to the criminal litigation experience the writer got from the Ministry.
 Oluwakemi Stephen Adeyemi is a legal practitioner serving as a Youth Corp member at the Ekiti State Ministry of Justice, Department of Civil Litigation. He may be contacted via this email address: email@example.com and this phone number: 08121534871.
 (1991) 2 NWLR (Pt. 195) 1 at 35
 (2002) FWLR (Pt. 130) 1645
 Supra at page 1651
 Supra at page 1652
 (2008) 15 NWLR (Pt. 1111) 630 at 641–642
 Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)
 Section 135 of the Evidence Act №18 of 2011
 (2013) All FWLR (Pt. 689) 1099 at 1104
 Any person against whom a Charge or information is made or brought. See section 371 of The Law
 Section 36 (9) of the 1999 C constitution of the Federal Republic of Nigeria (as amended).
 (2007) 3 NWLR (Pt. 1021) 209 at 216 per Ogebe JCA
 (2007) 7 NWLR (Pt. 1032) 152 at 159. See also footnote 2 above.
 (2000) 2 NWLR (Pt. 643) 115 at 137. See also Ohuka v. State (№2) (1988) (Vol. 19, Pt. 2) NSCC 371 at 385.
 Supra at 162
 (1975) 6 SC 79 at 109
 See footnote 14 above.
 A Federal enactment that applies to criminal trials for offences established by an Act of the National Assembly and other offences punishable in the Federal Capital Territory, Abuja. See section 2 (1) of the Act.
 Mark 2:22; Luke 5:37–38.
 This is the Prosecutorial authority in Ekiti State. See Section 249 of The Law.