IS A RULING ON NO CASE SUBMISSION APPEALABLE?

IS A RULING ON NO CASE SUBMISSION APPEALABLE?

No Case Submission-

The starting point is the non-negotiation of the principle that, in all decent society built on the sanctity of the Rule of Law, everyone accused of criminal misdeed is deemed innocent until the prosecution has been able to submit sufficient evidence to the Court which will persuade the Court to pronounce them guilty. Concomitant to this principle is another equally sacrosanct principle- that the burden of proving the guilt of a defendant rests squarely on the prosecution. It is not up to the defendant to prove their innocence; it is up to the prosecution to prove their guilt. Thus in a criminal trial, after the conclusion of the prosecution’s case the defence has the options of either (i) calling their own witnesses (which may or may not include the accused) to rebut the prosecution’s case; (ii) rest their case on the prosecution’s evidence without calling any witness or (iii) or invite the Court to dismiss the charges and discharge the accused if, in their opinion the evidence produced by the prosecution has not presented a prima facie case against the defendant.

Section 36(5) of the Nigerian Constitution guarantees the Presumption of innocence of everyone accused of criminal offence(s) in Nigeria. It is the duty of the prosecution to rebut this presumption by adducing sufficient evidence to persuade the Court of the defendant’s guilt.

Similarly Section 191(3) of the Nigerian Criminal Procedure Code provides that-

‘Notwithstanding the provisions of sub-section 2 of this section, the Court may after hearing the evidence for the prosecution, if it considers that the evidence against the accused is not sufficient to justify proceeding further with the trial, record a finding of not guilty in respect of the accused without calling upon him to enter his defence. And such accused shall be discharged’

In any case, ‘No Case Submission’ has enjoyed such notoriety in Nigerian Courts and has been considering the issue and giving profound and time-tested guidance on the matter.

ON THE NATURE OF A RULING ON A “NO CASE SUBMISSION”

A no case submission is legal submission on point of law by a judge. By virtue of section 318(1) constitution of the Federal Republic of Nigeria, 1999, the word “decision” otherwise expressly provided or the context otherwise requires, means in relation to a court and includes judgment, decree, order, conviction, sentence, or recommendation. That means a decision is any pronouncement of the court upon which an aggrieved party can exercise his right of appeal. Thus, a ruling on a no case submission, whether it is upheld or overruled is a “determination” or “decision” within the framework of Section 318(1) of the 1999 Constitution. As such, parties who are dissatisfied therewith can appeal against it. This view was also shared by Per OREDOLA, JCA in the case of Godwin Abru v. The State (2011) 17NWLR pt 1275(pg.10): when he stated thus:

          “It is to be noted that the constitutional interpretation sub-section, commences its definition or interpretation of what amounts to a “decision”, that, it “means in relation to a court, any determination of that court and includes….”. It then listed six examples or illustrations thus: “judgment, decree, order, conviction, sentence or recommendation.” The subsection did this without excluding “any determination of that court”. Accordingly, it further introduced a conjunctive “and” before listing the six examples as being in addition to and or exemplification of “any determination of that court”. Although a “ruling” is not included in the six examples, or illustrations of what constitutes a “decision”, it however, cannot be constructed as having been excluded or removed from the ambit of what amounts to a decision within the confines of section 318(1) of the 1999 Constitution.

On whether ruling on a no case submission is appealable

In the case of  Dr Olu Onagoruwa v. The State (1992)5NWLR pt244 (713) C.A, the accused was charged with stealing but pleaded ‘not guilty’. The prosecution commenced and closed its case. The appellant made a no case submission which was over ruled by the high court. Dissatisfied with the ruling on the no case submission the appellant appealed to the court of appeal. The respondent (i.e. the state) filed a preliminary objection to the appellant’s appeal. The appellant’s argument went thus: the court of appeal has in its earlier decision in the Nwosu v. State (1990) 7NWLR (pt. 162) 322 held that an accused person cannot appeal on a ruling on a no-case submission.  The Court of Appeal, the respondent contended, is not entitled to over-rule its earlier decision and in consequence of that, the court of Appeal would be wanting in jurisdiction to entertain the appellant’s appeal.

          The Court of Appeal held that the respondent’s preliminary objection was premature. The respondent appealed on this point to the Supreme Court which allowed the appeal and remitted the case back to the Court of Appeal for the preliminary objection to be argued on the merits.

          In dealing with the preliminary objection the court of Appeal considered sections 286 and 287 of the Criminal procedure Law of Lagos State and sections 220, 221 and 277 of the 1979 Constitution.

At the close of the prosecution’s case, the court pursuant to sections 286 and 287 of the Criminal Procedure Law, must determine whether to “discharge” the accused person or “call upon him for his defence”; and such a determination by the court within section 220(1) of the 1979 Constitution and therefore qualifies as a decision of that court within section 220(1) of the constitution and is consequently appealable. Either the accused or the prosecution has a right of appeal to the court of appeal from such decision from the high court on no-case submission as the case may be.

 On this behalf, Per UBAEZONU, JCA. at page 730, paras. C-D: had this to say;

          “On a careful consideration of all the authorities before me, I have come to the irresistible, and in fact, the inevitable conclusion that a ruling on a no-case submission being a determination of an issue of law imposed on the High Court by statute is a decision within the 1979 constitution and consequently is appealable both by the prosecution and the defence.”

In the same vein, Per KALGO, JCA. at page 733, paras. D-E: stated thus;

          “………….it is my humble opinion that where a no case submission by or on behalf of an accused is over-ruled, it is great injustice or indeed a beehive of injustice to refuse him the right to contest the ruling because he might be entitled to an acquittal or discharge thereby.”

On whether ruling dismissing a no case submission is appealable

Although the word “acquittal” is not mentioned in section 277 (1) of the 1979 constitution, the prosecution has always been at liberty to appeal against an acquittal, and if that is so, it will be illogical if a ruling which over rules a no case submission in not appealable.

          Per UBAEZONU, J.C.A. at pages 729-730, paras. H-G: had this to say;

          “It seems to me to be a correct statement of the law to say that the State or Prosecution can appeal against a ruling in a no case submission where the ruling upholds a no-case submission or, to put it in another way, where the ruling is against the prosecution. There are decisions of the court I support of the proposition. In The State v. Stephen (supra) the court of appeal (Benin Division) entertained an appeal by the state against the ruling of the High Court discharging the respondent on a no-case submission. Again, in The State v. Letitia Osler (supra) the court of appeal (Port Harcourt division) heard an appeal by the State against the discharge of the appellant on a no case submission. In each of these cases, the appellant (The State) exercised its constitutional right to appeal. The court exercised its jurisdiction to hear the appeal. I am unable to appreciate an argument which concedes to the prosecution the right to appeal on a ruling on a no case submission but denies such a right to an accused. If anything, it should be the other way round. The argument that where the accused is discharged on a no case submission the proceedings are terminated and has reached finality, and therefore The State or the prosecution can appeal is unimpressive. No such distinction is drawn in the relevant sections of the constitution under consideration”

To further buttress this point, Per KALGO, J.C.A. at pages 732-733, paras H-A: had this to say;

“in three previous cases which I am aware, this Court (the Court of Appeal) had occasion to consider a no case submission.

          In the first case, Olaniyan v. The State (1987) 1NWLR (pt 48) 156, the appellant’s counsel made a no case submission in respect of 4 counts on behalf of the appellant. The submission was upheld in respect of 3 and over ruled in respect of the 4th count. The appellant filed an appeal in this court against the overruling of the no case submission by the trial Judge. The appeal was dealt with in the normal way and in the end it was dismissed on merit. What is note worthy here is that the issue of jurisdiction of the court, as to whether a ruling on a no case is appealable did not arise. It would be proper to say that in that case, the court proceeded on the ground that the appeal was in order.”

On the other side of the divide on the non-appealable nature of the ruling on “No Case Submission” is the argument that a ruling on a no case submission is a determination but it is not a determination that includes judgment, decree, order, conviction, sentence or recommendations. Therefore it is not appealable under section 277 of the 1979 Constitution. [Nwosu v. State (1990) 7NWLR (pt. 162) at 334 referred to (P. 452, paras. C-D). This was the position adopted by the court in YEKINNI AJISEFINI V. DIRECTOR OF PUBLIC PROSECUTIONS (1998) 8NWLR (pt. 562) 447 C.A. It was also contended that the options available to an accused on the overruling of a no case submission does not provide a right of appeal as an additional alternative. This argument was supported by the provisions of section 287 of the Criminal Procedure Law which provides for the options available to the accused at the close of the prosecution’s case. The learned counsel to the respondent in the above case submitted that the grounds of appeal are not substantial as a ruling of no case is not appealable. Learned counsel cited the case of NWOSU V. THE STATE (SUPRA) where such a decision is not regarded to be a decision under S. 277 of the 1979 Constitution. Learned counsel submitted that Onagoruwa’s case (supra) cited by the learned counsel to the appellant/applicant being a Court a court of appeal decision has not overruled the decision has not overruled the decision in Nwosu hence the position has not changed. This view was also supported by the decision in Olaniyan v. The State (1987) 1NWLR (Pt.48) 156 at 160. Where the court held as follows Per Awogu, J.C.A. at page 334 paras. E-D:

“There is no doubt that no case ruling is a determination”; it is however, not a determination, that includes “judgment, decree, order, conviction, sentence or recommendation.” The reason for this is that under section 287, such a submission, if over-ruled, gives the accused three choices, one is to participate no further in the proceedings. In such a case, the trial judge then proceeds to take addresses once again and must review the facts once again in order to arrive at a final determination as whether to acquit or to convict. This being so, an appeal against the overruling of the no case submission would, if successful, mean that the Court of Appeal would determine the innocence of the accused persons before the learned Judge has had a chance to do so. No doubt, if the learned Judge does so in his final judgment and there is no appeal against the conviction, the Court of Appeal would no doubt set aside the conviction and may be of the view that the no case submission should have been upheld.

In NJOKU v. Commissioner of Police (1999) 10NWLR (Pt.622) 192 C.A, the court in unanimously dismissing the argument that a ruling on no case submission is not appealable since it leads to neither acquittal nor conviction. Learned counsel reliance was placed on section 277(1) of the 1979 Constitution in this regard. The court of appeal considered sections 220(1)(b) &(g)(v) and 221(1) of the 1979 Constitution respectively, and stated as follows:

“A ruling on a no case submission is a decision is a decision within the meaning of section 277(1) of the 1979 constitution that can be appealed against notwithstanding the fact that the accused has not exercised the option to either enter his defence or rest his case on the prosecution. Thus the decision in NWOSU v. State was reached per incurium and does not represent the law.

Conclusion

‘The difficulty (for the Court) arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness, or because it is inconsistent with other evidence-

(a)-  Where the judge comes to the conclusion that the prosecution evidence, taken at its height, is such that a judge properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.

(b) - Where however the prosecution evidence is such that its strengths or weaknesses depends on the view to be taken of a witnesses reliability, or other matters which are generally within the province of the judge and where on one possible view of the facts there is evidence upon which a judge could properly come to the conclusion that the defendant is guilty, then the judges should allow the matter to be tried.

 It is important to note that the judge should not ask himself the question, at the close of the prosecution case, “do I have a reasonable doubt?” The question that he should ask is whether he is convinced that there are no circumstances in which he could properly convict. Where evidence of the offence charged has been given, the judge could only reach that conclusion where the evidence was so weak or so discredited that it could not conceivably support a guilty verdict.”