Sylvester Udemezue

His Excellency, Senator (Dr) Bukola Saraki, former Governor of Kwara State, and present President of the Nigerian Senate, was on Wednesday, 14 June 2017, discharged and acquitted in respect of the 18-count charge earlier brought against him in 2015 at the Code of Conduct Tribunal (CCT) Abuja.

Dr. Saraki had been standing trial before the Tribunal on sundry allegations bothering on false declaration of his assets, etc. His acquittal followed a no-case submission/application made by his counsel (after the close of the case for the prosecution) praying the CCT to discharge and acquit the defendant (Saraki) on grounds that, in the opinion of the defence, the defendant had no case to answer before the Tribunal on the alleged offences. The ruling of the Code of Conduct Tribunal (CCT), headed by Hon Justice Danladi Umar, discharging Dr Saraki, has expectedly drawn mixed reactions from Nigerians and other observers. While some have welcomed it as victory for rule of law, others have described the verdict as “political.” Some others I have read simply wonder why His Excellency was not made to call his own witnesses and to defend himself before the tribunal’s final verdict.

This third school (whose membership is found mainly among non-lawyer observers) has queried the acquittal of Dr Saraki based on the no-case application without first compelling him to prove his innocence. Yet, there are some persons who have openly queried why a man who had for the past two years or thereabouts been advertised and widely publicized in the news media as being grossly “corrupt” would now end up being declared INNOCENT of all allegations against him. To this group, there must be more to the matter than meets the ordinary eye. Bizarre, they say, is the word to describe the scenario! Now, it is in reaction to the view held by the latter groups, albeit erroneously, with respect, that I’ve chosen to make this short comment, on when and how a no-case submission is made, by whom, the implications of a no-case application as well as the options open to the court in the circumstances. It is also intended to point out the legal import of a “discharge” of the defendant in such a case.

This will help the general public, especially non-lawyers, to appreciate the verdict of the CCT in Dr Saraki’s case. The law is that, after the conclusion or close of the prosecution’s case, in any criminal trial in Nigeria, there are THREE options open to the defence, namely — (1) the defence may call its own witnesses and adduce its own evidence to rebut the prosecution’s case; or (2) the defence may, without calling any witness, rest its case on the prosecution’s case; or (3) the defence may enter a NO CASE submission, that is, invite the Court to dismiss the charges and discharge the accused on grounds that, in the opinion of the defence, the evidence produced by the prosecution has not presented a prima facie case against the defendant, to warrant him to enter upon any defence. Section 191(3) of the Nigerian Criminal Procedure Code (CPC, The Code) applicable in northern Nigerian 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.” Similarly, section 286 of the Criminal Procedure Law (applicable in the south) provides that 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 that particular charge, discharge him. SEE ALSO SECTION 303 OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT (ACJA), 2015, which is to the same effect.

In the case of AJISOGUN v. THE STATE (1999) 13 NWLR (Pt.635)437, the court explained as follows: “A submission of ‘no-case to answer in a criminal court or trial is a submission on point of law. Pure and simple. Nothing more and nothing less. It is a legal submission. It is analogous to a demurer in a civil court or trial. All the accused is saying at that stage of the trial is to this effect: Accept all that the prosecution has said through its witnesses, yet it (the prosecution) cannot secure a conviction either of the offence charged or of any other alternative offence of which I may possibly be convicted, upon the evidence.” An application for a NO CASE may be made in any of the following circumstances: (a) when there has been no evidence to prove an essential element of the offence; or (b) 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. See the following cases: R. v. Coker 20 NLR 62; lbeziako v. The C.O.P. (1963) 1 All NLR 6 1, Ubanatu v. COP (2000) 1 SCNJ 50, Emedo v.State (2002) 15 NWLR (Pt. 789) 196. Even where NO such application has been made by the defence for a NO CASE, the court has an obligation to suo motu consider the prosecution’s case to see whether a case has been made out against the accused and if it discovers that the prosecution HAS NOT made out any sufficient case, it should discharge the accused. See OKORO v. THE STATE (1988) 5 NWLR 255 (Pt. 94). SEE ALSO SECTION 302 OF THE ACJA, 2015.

According to section 303 (3) of the ACJA, where such an application is made, the court is guided by the following FOUR FACTORS in reaching a decision one way or the other: (1) whethe`r the essential elements of the offence been proved beyond reasonable doubt; (2) whether there is any evidence linking the defendant with the commission of the offence with which he is charged; (3) whether the evidence so far led by the prosecution is such that ANY reasonable court or tribunal would convict on it; and (4) whether, on any other ground, any prima facie case has been made out against the defendant. Once the court answers all these questions in the NEGATIVE, the court must discharge the defendant. The effect of a discharge in such circumstances (i.e., on a no case submission) is equivalent to an ACQUITTAL. See section 301 (1) Criminal Procedure Law; section 191(5) Criminal Procedure Code. See also NWALI v. IGP (1956) 1 E.N.R.NLR l. In IGP v. MARKE (1957) 2 F.S.C. 5, where the accused persons 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.

Based on the above, it is clear that the the discharge of Dr Bukola Saraki on the strength of the NO CASE SUBMISSION application made by him, therefore amounts to an ACQUITTAL, and thus brought the case to a close, in his favour. He is entitled to raise the bar plea of AUTRE FOIS ACQUIT to any future charge based on the same offences or offences having the same ingredients as the ones with which he was charged, and now acquitted.

On the notion that the defendant was not compelled to defend himself or that he as yet to prove his innocence, I simply take some words from the essay, “THE LAWYER`S PLACE IN MISMANAGEMENT OF MEDIA MISINFORMATION IN DEMOCRATIC NIGERIA:”

“…the Nigerian (criminal) legal system is accusatorial and adversarial, and not INQUISITORIAL in nature. Ours is a system in which the prosecutor or accuser must necessarily establish the guilt of the accused person by credible evidence independently and freely secured, and not on pages of newspapers or on social media or by mere RUMOUR. An accused person is thus presumed innocent unless and until his guilt is established beyond reasonable doubt before a court of law in line with the requirements of section 36 (5) of the Constitution …. SIR WILLIAMS BLACKSTONE`s dictum that “it is better for TEN wrongdoers to go scot-free than for ONE innocent man to suffer unjustly” is appropriate in this circumstance. One major lesson from the Fourth Amendment to the Constitution of the USA is that it is better that the guilty sometimes go free than the citizens be subject to easy arrest. Back here, to borrow from the words the famous English writer, journalist, DANIEL DEFOE (1659-1731), it is sad and shocking that, OFTENTIMES, WE HEAR MUCH OF PEOPLE’S CALLING OUT TO PUNISH THE GUILTY; YET VERY FEW ARE CONCERNED TO CLEAR THE INNOCENT.

This contravenes the very system we’ve accepted for ourselves. The accusatorial/adversarial criminal justice system is carefully designed to ensure fairness and protection of the accused, lest people be wrongly accused or convicted; liberty and freedom are paramount and any reasons for taking them away must be compelling and apparent even in the face of unmitigated advocacy for the accused. The major object of the adversarial processes is, precisely, to give every bit of benefit of the doubt to any person or persons suspected of or accused but not yet convicted. It is only in this way that we can be sure that only the guilty is punished. As JUSTICE BENJAMIN CARDOZO said in Snyder v. Massachusetts, 291 U.S. 97, 122 (1934), ‘justice, though due to the accuser and the society, is due the accused also. The concept of fairness cannot be strained till it is narrowed down to a filament; we are to keep our balance true.

’”(SEE http://thenigerialawyer.com/the-lawyers-place-in-mismanagement-of-media-misinformation-in-democratic-nigeria-by-udemezue/)

SYLVESTER UDEMEZUE: (mrudems@yahoo.com)

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