- Introduction
Section 303(3) of the Administration of Criminal Justice Act 2015 states that in ruling on a no-case submission, the court shall consider, “whether, (a) an essential element of the offence has been proved or (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 of tribunal would convict upon 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.” This section replaces section 286 of the Criminal Procedure Act but goes further to include and codify the widely accepted conditions for a no case submission.
- Prima facie case
2.1 The term prima facie case is mentioned in the Administration of Criminal Justice Act 2015 but it is unknown to the Evidence Act and this is rather curious because the existence of a prima facie case is an evidentiary matter. The Evidence Act recognizes only one standard of proof on the prosecution and that is proof beyond reasonable doubt. See section 138 of the Evidence Act. There is no intermediate standard such as proof of a prima facie case and there is no evidential burden on the prosecution to establish a prima facie case. The burden on the prosecution is to prove the guilt of the defendant at the end of the trial beyond reasonable doubt.
2.2 Proof of guilt is different from proof of a prima facie case. The proof of guilt begins from the moment the defendant enters a plea of not guilty and the prosecution embarks on the task to rebut the presumption of innocence. On the other hand the proof of a prima facie case is required at the pre-trial stage. It is a test of sufficiency of evidence to bring charges against the suspect and whether or not there is ground for proceeding to trial with the available evidence in the case. Section 376(2) of the Administration of Criminal Justice Act 2015 states that, “The Attorney General of the Federation shall within 14 days of receipt of the police case file, issue and serve his legal advice indicating whether or not there is a prima facie case against the defendant for which he can be prosecuted.”
- Problems of the no case submission
3.1 The no case submission procedure is fraught with several problems and subject to abuse. In Tongo v C.O.P,[1] the trial was stalled in 1992 at the Magistrate Court after the no case submission was overruled. The appeal process lasted fifteen years from the Magistrate Court in 1992 finally up to the Supreme Court in 2007. At the Supreme Court, Chukwuma-Eneh JSC said,
“On hindsight, it is an expensively frivolous venture and this is so as the appellants could still come on appeal at the conclusion of the case on the ground that no prima facie case has been made out against the appellant at the stage the no case submission was overruled. I strongly observe that just as this court frowns at frivolous interlocutory appeals in civil cases it also frowns at exercises of this nature in criminal matters.”
3.2 Some evidentiary and procedural problems associated with an application and ruling on no-case submission are discussed below.
3.2.1 Credibility of witnesses: One of the conditions for finding an absence of prima facie case and upholding a no case submission is that the evidence of the prosecution has been discredited by cross-examination or is manifestly unreliable. Yet the trial judge is not at that stage permitted to examine the credibility of the prosecution evidence. The problem was highlighted by Tobi JCA (as he then was) in Onagoruwa v The State,[2]
“Paradoxically, the same law says that at the stage of a no case submission, the trial judge should discharge the defendant if the evidence before him is so unreliable that a reasonable tribunal cannot safely convict. Considering the factual position that credibility has something in common with reliability, truth and veracity, I see in this situation some self-contradiction in our adjectival law. Speaking for myself, I do not see anything wrong in taking the issue of credibility of the witnesses together and come to the conclusion in a swoop whether a case is made out or not. So far that is not the position of the law, and the hard and rigid principles of stare decisis will not allow me to depart from that ‘sane’ path and so I bow, hoping that someday the position will change.”
3.2.2 Lengthy ruling: One of the problems with a no case submission ruling is that the trial judge may deliver a lengthy ruling which may prejudice his decision at the end of the case. There are in fact cases where a full judgment has been delivered on a no case submission. In Atano v AG Bendel,[3] the trial judge delivered a 15 page ruling and Oputa JSC sounded a note of caution,
“Strictly speaking a submission of no case should be limited to the law, there will be no harm in discussing the law in the ruling. But one soon discovers that no meaningful discussion of the law can be made in vacuo, without any reference to the facts. If law and facts are to be discussed then it is wiser to be extremely short. In fact one single sentence is enough; ‘I overrule the submission and will give my reasons in my judgment’. It is much wiser to be brief: Bello v The State. The danger in a long ruling, discussing law and facts, is that too much might be said which at the end of the case might fetter the Judge’s discretion.”
Contrast the case of Emedo v The State,[4] where the Supreme Court held that the procedure followed by the judge in writing a judgment instead of a ruling was an irregularity which did not cause a miscarriage of justice.
3.2.3 Delay in evaluation: The ruling on a no case submission is not the final decision in the case. Where there is a case to answer the appellate court will return the matter to the trial court for continuation of trial by the defence. In some cases the trial may be stalled for several years before it returns for continuation at the trial court. The problem is that the time lapse may have affected the ability of the trial judge to properly evaluate the evidence of the witnesses. This can be avoided where the trial judge is allowed to resolve all the issues and deliver judgment after the close of prosecution evidence. In Edet Edem Akpan v The State,[5] Oputa JSC said,
“In hearing a case at first instance, the trial court has to deal with the all important issue of credibility of witnesses and the weight to be attached to their evidence. A lot here may well depend upon the demeanour and hearing of those witnesses and the impressions they made on the trial judge. It is a truism that those impressions fade away with time so that an inordinate delay in a trial may lead to a wrong evaluation of the evidence and thence to injustice.”
3.2.4 Evidence of lesser offences: The no case submission procedure raises other procedural problems. In Adeyemi v The State,[6] the defendant was charged with the offence of murder. At the close of prosecution evidence defence counsel made a no case submission. The trial judge held that the prosecution did not establish a prima facie case of murder but asked the defendant to enter a defence for the lesser offence of manslaughter for which he was later convicted. On appeal the question was, whether a trial court can discharge the defendant of an offence and then call upon him to answer to a lesser offence arising from the charge. Or whether a trial court should hold that a prima facie case for the more serious offence has been made out, then proceed in the judgment to later convict for the lesser offence. The Supreme Court held that the provisions of section 179(2) of the CPL, which give the trial judge power to convict for a lesser offence, could only be applied in the judgment after the trial and not after a ruling of no case submission.
- Presumption of innocence:
Another problem raised by the no case submission procedure concerns the presumption of innocence. It has been held that where a no-case submission is wrongly overruled it will be a violation of the presumption of innocence and misdirection on the burden of proof to call upon the defendant to lead evidence in defence of the charge. In Osa Okoro v The State,[7] at the close of the evidence for the prosecution there was insufficient evidence to support the charge against the appellant but the trial court overruled the no-case submission and relied upon the evidence of co-defendants to convict the appellant. On appeal, the Supreme Court in a split decision discharged and acquitted the appellant. Karibi-Whyte JSC said, after referring to the constitutional presumption of innocence in section 36(5) of the Constitution FRN,
“Under our law, it is not for the defendant to prove his innocence. The burden is on the prosecution to establish the case against the defendant beyond reasonable doubt. These propositions establish that where no case has been made out against the defendant at the end of the case for the prosecution, asking him to answer the charge against him is a reversal of the constitutional provision by asking him to establish his innocence.”
- Conclusion
If the no case submission is abolished then a defendant who believes that a prima facie case has not been established against him can rest his case after close of the prosecution evidence. The defendant can then address the court either at that point, if he is tried alone, or after the close of evidence of co-defendants who elect to give evidence if he is tried jointly. However, a court must not rely on evidence of co-defendants to convict another defendant, who did not give evidence and rested his case, if the evidence of the prosecution evidence failed to prove the charge. In conclusion, the application to discharge a defendant upon a no case submission for absence of a prima facie case is a procedure that is subject to pitfalls and abuse. The procedure can also be used to delay criminal trials and should be abolished.
Jide Bodede. Author of Criminal Evidence in Nigeria. Principal at Lawfields Solicitors & Advocates. jide@lawfieldslawyers.com.
[1] (2007) NWLR (pt.1049) 525 at 550.
[2] (1993) NWLR (pt.303) 49 at 84.
[3] (1987) NWLR (pt.75) 201. See also, Ajiboye v The State (1995) NWLR (pt.414) 408 at 416. Ekwunugo v FRN (2008) NWLR (Pt.1111) 630, Atutu v The State (2013) MJSC 21,
[4] (2002) NWLR (pt.789) 196 at 205. See also, Ekpo v The State (2001) NWLR (pt.712) 292 at 305.
[5] (1986) NSCC 686 at 697
[6] (1991) NWLR (pt.195) 1.
[7] (1988) NWLR (pt.92) 255 at 275, See also, Suberu v The State (2010) NWLR (pt.1197) 586, Mumuni v The State (1975) NSCC 59.
