EMEGU ODEY V. THE STATE (2018)

Background

Emegu Odey was the eighth accused person in a criminal prosecution before the High Court of Cross River State. He and thirteen others were charged with conspiracy, unlawful assembly, malicious damage to property and stealing, under sections 520(6), 70, 451 and 390(9) of the Criminal Code of Cross River State, 2004. The prosecution called five witnesses and thereafter closed its case. The accused persons jointly made a submission of no case to answer, contending that the prosecution had not produced evidence linking them to the alleged offences and that the evidence had been weakened by cross-examination. The trial court rejected the submission on 5 March 2012 and called upon the accused persons to enter their defence. The Court of Appeal, Calabar Division, dismissed the ensuing appeal on 19 November 2013. Odey therefore appealed to the Supreme Court.

The prosecution evidence principally concerned an incident in which a crowd allegedly gathered at a village square, advanced to the residence of PW2, a traditional ruler, and damaged houses and other property. PW1 and PW2 testified that Odey was among the persons present. PW2 also stated that property, including a motorcycle, goats, bicycles and dried bush meat, was in his house before the incident but could not be found after the destruction.

Issue

The central issue was whether the Court of Appeal was correct to hold that the evidence before the trial court disclosed a prima facie case against Odey sufficient to require him to offer a defence.

Ratio Decidendi

The Supreme Court, in the lead judgment delivered by Kekere-Ekun JSC, dismissed the appeal. It held that a no-case submission succeeds only where the prosecution has adduced no evidence on an essential element of the offence, or where the evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

A no-case submission does not invite the court to decide whether it believes the prosecution witnesses, assess their credibility or evaluate the weight of the evidence. At that interlocutory stage, the question is whether, if the evidence were believed, it could support a conviction or whether it requires an explanation from the accused. The prosecution is not required to prove the case beyond reasonable doubt at that point; it need only establish a prima facie case.

The Court explained that a prima facie case means evidence sufficient on its face to provide a ground for proceeding and capable of standing unless rebutted. It is not equivalent to proof of guilt. The trial court’s ruling on a no-case submission should also be brief, so that it does not prejudge the substantive trial.

Court Findings

On conspiracy, the Court held that conspiracy is an agreement between two or more persons to do an act which it is an offence to agree to do. Direct evidence of an express agreement is rarely available. The meeting of minds may be inferred from the conduct of the parties and from acts or omissions done in furtherance of the common unlawful purpose. Evidence that the accused persons gathered together and proceeded to damage PW2’s property was sufficient, at this stage, to call for an explanation.

Regarding unlawful assembly, the Court found that testimony that a large crowd, including the accused persons, assembled while carrying sticks and cutlasses, chanting and moving towards the victim’s property was capable of establishing a prima facie case under the Criminal Code. The appellant’s argument that the prosecution had not yet proved actual fear in the neighbourhood addressed the ultimate burden of proof, not the lower threshold applicable to a no-case submission.

For malicious damage under section 451, the Court stated that “willful” means voluntary and intentional. Malicious damage consists of voluntary and intentional damage without just cause or excuse, where the damage is substantially certain to cause injury. The prosecution did not need, at this stage, to establish a particular method by which the property was destroyed. Evidence that the accused persons participated in destroying PW2’s houses was sufficient.

As to stealing, sections 383(1) and 390(a) require proof of ownership of the property, that the property is capable of being stolen, and fraudulent taking or conversion. PW2’s evidence that the listed items were in his house before the incident and missing after the accused persons destroyed it provided prima facie evidence requiring an explanation from the appellant.

Conclusion

The Supreme Court held that the concurrent decisions of the trial court and Court of Appeal were not perverse. The prosecution had adduced evidence sufficient to establish a prima facie case on all four counts. The appeal was dismissed and the decision of the Court of Appeal affirming the rejection of the no-case submission was upheld.

Significance

The decision restates the limited function of a no-case submission in Nigerian criminal procedure. It protects an accused from being put to a defence where the prosecution has failed to present evidence on an essential ingredient or where its case is wholly unreliable, but it does not permit an early determination of credibility or final guilt. The case also confirms that conspiracy may be inferred from coordinated conduct, and that the threshold of a prima facie case is materially lower than proof beyond reasonable doubt.