NO CASE SUBMISSION

NO CASE SUBMISSION

A plea of no case submission is a submission that there is no case to answer. It may properly be made when there has been no evidence in the alleged offence and when the evidence adduced by the prosecution has been discredited as a result of cross-examination, or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

Apart from the above two situations, a court should not be called to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it.

The basic authorities for anchoring a submission of no case to answer are section 286 of the Criminal Procedure Act (CPA); section 191(3) and (5) of the Criminal Procedure Code (CPC), and section 243 of the Administration of Criminal Justice Law (ACJL).

Section 286 of the CPA provides thus –

“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, as to the particular charge, discharge him”.

From the above provision, it is very clear that the court may by itself discharge an accused person if at the close for the prosecution, it appears to the court that no case has been made out against the accused person requiring him to make a defence.

In Odido v. State (1995) 1 NWLR (Pt. 369) 88, the court observed that the mere use of the words – “if it appears” in section 286 of the Criminal Procedure Act does not entitle a judge to say that it does not appear to him where the prosecution has not made out a case against the accused to answer. The case so made must also be “sufficient” to require the accused to make a defence. It is therefore, not sufficient that there has been a casual reference to the accused. The case of the prosecution must be cogent to require the accused to further deny the accusation.

It is only after the foregoing requirement has been met that the court would hold that a case has been made out for the accused to answer and call upon him to make his defence. Therefore, the court must be wary in reaching a decision upon a no case submission.

Section 191(3) of the Criminal Procedure Code provides thus –

“Notwithstanding the provisions of subsection (2), the court may after hearing the evidence for the prosecution if it considers that the evidence against the accused or any of several accused is not sufficient to justify the continuation of the trial, record a finding of not guilty in respect of such accused without calling upon him or them to enter upon the defence and such accused shall thereupon be discharged and the court shall then call upon the remaining accused, if any, to enter upon the defence”.

Section 191(5) of the CPC provides thus –

“Notwithstanding the provisions of subsection (4), the court may, before calling upon the accused to enter upon the defence, calls upon the prosecutor to sum up his case against any one or more of the accused against whom it considers that the evidence is not sufficient to justify the continuation”.

The provisions of section 286 of the CPA and section 191(3) and (5) of the CPC may be invoked suo motu by the court, that is, the court may of its own volition rule that an accused person has no case to answer.

In most cases and in practice too, it is the counsel representing the accused person that usually, at the close of the prosecution’s case, moves the court on a no case submission to exercise its discretion under section 286 of the CPA.

WHEN A NO CASE SUBMISSION MAY BE MADE

A no case submission may be made by the counsel to defendant in the following circumstances –

1.                  When there has been no evidence to prove an essential element of the offence.

2.                  When the evidence adduced by the Prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it – R. v. Coker 20 NLR 62; Ibeziako v. C.O.P (1963) 1 All NLR 61; Ubanatu v. C.O.P (2000) 1 SCNJ 50; Emedo v. The State (2002) 15 NWLR (Pt. 789) 196.

OPTIONS AVAILABLE TO THE ACCUSED AT THE CLOSE OF THE CASE OF THE PROSECUTION

If at the close of the prosecution, it appears to the court that a prima facie case is made out against the accused person sufficiently to require him to state his defence, he shall –

1.      Be called upon for his defence by his counsel, where he is represented by a counsel;

2.      If he is not represented by a counsel, the court shall inform him that he has three (3) alternatives which are –

a)      He may make a statement without being sworn, from the place where he then is, in which case he will not be liable to cross-examination; or

b)      He may give evidence in the witness box, after being sworn as a witness, in which case he will be liable to cross-examination; or

c)      He may decide to remain silent (mute), if he so wishes, or

d)     In addition the court shall ask him if he has any witness to examine or other evidence to adduce in his evidence and the court shall then hear the defendant and his witnesses and other evidence, if any; and if the accused person is represented by a legal practitioner, the court shall call upon the legal practitioner to proceed with the defence – section 287(1) of the CPA.

Section 288 of the CPA provides that failure to comply with the above requirements shall not vitiate the trial provided the court called upon the accused person for his defence and asked him if he had any witnesses and heard the accused person and his witness and other evidence if any.

ACCUSED RESTING HIS CASE ON THAT OF THE PROSECUTION

Another course open to the defence at the close of the prosecution’s case is to state, if such be the fact that it does not intend to call any witnesses, not even the accused. It thus rests its case on the prosecution.

If this is the case, then the accused person or his counsel will address the court. This address is more than an ordinary no case submission as it may range over the insufficiency of the evidence, credibility of the witnesses, or weight of their testimony, as well as argument on the law.

This procedure can properly be adopted where the case is apparently weak in law and in fact. The prosecution has a right to reply to the address only if the prosecutor is a law officer of the state – sections 241 and 243 of the CPA.

The court does not make any ruling in such a case but delivers a final judgment. Therefore, whereas an accused person who makes an ordinary no case submission may afterwards call witnesses for his defence if the submission is overruled, one who adopts this procedure cannot subsequently in the proceedings have an opportunity of calling witnesses.

The trail court is obliged to consider the prosecution’s case carefully, decide on the credibility of the prosecution’s witnesses and also on the weight to be attached to their evidence – Edet Akpan v. The State (1986) 3 NWLR 225.

If there is a failure on the part of a trial court to review, weigh the evidence and assess the entire prosecution’s case (which is also the case of the defence) an appellate court may in the interest of justice interfere – Edet v. Akpan (supra).

Where the prosecution’s case calls for some explanation, which only the accused person can give, and such accused person decides to rest on the prosecution’s case, the trial judge must not be deterred  by the incompleteness of the tale from drawing the interferences that properly flow from the evidence it has got. It should not be dissuaded from reaching a firm conclusion by speculation on what the accused might have said if he had testified – Ogbonna Nwede v. The State (1985) 3 NWLR 444 at 456; The Queen v. Sharnipal Sinigh (1962) (PC) 2 WLR 238 AT 244 – 245.

WHEN A NO CASE SUBMISSION IS OVERRULED, WHAT OTHER OPTIONS ARE AVAILABLE TO THE ACCUSED

The overruled principle that a conviction warranted by evidence given after a submission of no case had been wrongly overruled would not be quashed on appeal, had its ultimate root in the decision in R v. Ajani 3 WACA 3.

The following options are available to an accused person –

1.      The court has an obligation to consider suo motu the prosecution's case whether a case has been made out against the accused and if it discovers that the prosecution made out no sufficient case, the court is to discharge the accused person. It should be noted that the court does not make a no case submission; rather, the court discharges the accused - Okoro v. The State (1988) 5 NWLR 225; Maiduguri v. R. (1963) NLR 1. No case submission saves the accused from entering a needless defence where the prosecution has failed.  Section 36(5) of the 1999 Constitution provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. It also saves the time of the court where prosecution has failed to link the accused to the crime charged.

2.      Where the accused makes a no case submission, and the court wishes to overrule such a submission, the ruling of the trial court should be confined to the submission and must neither be too lengthy, nor such as to fetter the discretion of the court – Ekanem v. R. 13 W.A.C.A. 180; Odofin Bello v. The State (1967) NMLR 1. It should, however, ne noted that a lengthy ruling on its own is not sufficient to vitiate a trial. The discretion of the court must not be fettered. In Atano and Anor. v. The A. G. Bendel State (1988) 2 NWLR 201 (Pt. 75), the ruling was merely lengthy. It was held that the discretion of the court was not fettered thereby. This applies where the court is to overrule a no case to answer submission. The court must also only consider evidence before it is adduced by the prosecution.

3.      The effect of a discharge on a no case submission is equivalent to an acquittal – section 301(1) of the Criminal Procedure Act; section 191(5) of the Criminal Procedure Code; and section 252 of the Administration of Criminal Justice Law. In Nwali v. The IGP (1956) 1 E.N.R. NLR l; and The IGP v. Mark (1957) 2 F.S.C. 5, where the accused were subsequently charged after a discharge following a no case submission, it was held on appeal that their discharge was on merit and consequently, they should be acquitted. It should be noted that a discharge under sections 159 and 169 of the Criminal Procedure Code is a mere discharge, not one on the merits and so does not amount to an acquittal. So a plea of autre fois acquit based on it will fail. 

4.      If a no case submission is wrongly overruled and an accused person participates in the proceedings whereby he supplies the evidence incriminating him, it has been held that a conviction founded on such evidence could not stand. To hold otherwise will amount to requiring the accused to prove his innocence – Mumuni v. The State, (1975) 6 S.C. 79, where the legal obligation on the part of the court to discharge an accused person against whom there is no case to answer at the end of the prosecution’s case derives from the fundamental right of the accused person under section 35(5) of the 1979 Constitution [now section 36(5) of the 1999 Constitution]. The Court has however moved away from this position – Okoro v. The State (1988) 5 NWLR (Pt. 94) 255, where it was stated that whatever an accused person does after, and is convicted, the court will look at what led to his conviction, that is, if it is based on evidence that he gave, then such conviction will be set aside – Daboh v. The State (1977) 5 S.C. 197.

5.      Where submission is wrongly overruled or the court does not discharge when there is no case against the accused after the close of the Prosecution's case, such conviction shall be set aside. It is immaterial whether the accused participates in the trial or not – Okoro v. The State (supra).

6.      Where the no case submission is rightly overruled evidence obtained from participation, it will be admissible against the accused – Ohuka v. The State (1988) 4 NWLR (Pt. 86) 36; also, the English case of, Wayne Edward Cockley (1984) Vol. 79 Cr. App. Rep. 18 1.

OPENING ADDRESS FOR THE DEFENCE

The accused person or his counsel may open an address for the defence under section 192 of the CPC.

Section 192 of the Criminal Procedure Code provides thus –

“When the court calls upon the accused person to enter upon the defence, the accused or his counsel may open his case stating the facts or law in which he intends to rely and making such comments as he thinks necessary on the evidence for the prosecution, and the accused may then give evidence for on his own behalf, examine his witnesses, if any, after their cross-examination and re-examination, if any, the accused or his counsel may sum up his case”.

It is uncommon in practice for the accused person or his counsel to commence the case for the defence with an opening address. In practice, the accused person or his counsel goes directly into his defence by adopting any of the alternatives open to him in the law.

The accused person may decide to testify in his defence and call witnesses to testify on his behalf. The defence of the accused person may be a complete denial. For example, where he raises the defence of alibi and states that he did not commit the offence because he was not at the scene of the crime but elsewhere. Where such defence is raised, the accused person must raise the defence at the earliest opportunity and must give particulars of where he was at the time of the alleged commission of the offence. This is necessary in order to enable the police to investigate the alibi and if possible, make contradictions – Gachi v. The State (1965) NMLR 333; Ozaki & Anor. v. The State (1990) 1 NWLR (Pt. 124) 92.

Alternatively, the accused person may admit committing the alleged offence but deny criminal liability totally or partially by raising any of the defenses available in law to the offence alleged against him. For example, he could raise any of the following: accident; mistake of fact; bona fide claim of right; extraordinary emergencies; execution of law; superior orders; self defence and aiding in self-defence; compulsion; and compulsion by husband; immaturity; acts causing slight hurts; defence of dwelling house; provocation; intoxication; automatism; and insanity.

The accused person or his counsel may call as many witnesses as possible and necessary to testify to the defence raised by the accused; and there is no stipulated order to which a witness is to be called by the accused or his counsel. But where the accused person is to give evidence, the accused person must be called first. click on any picture at the left or right hand side for more insight.

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