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IN THE COURT OF APPEAL OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

On THURSDAY, THE 16TH DAY OF FEBRUARY, 2023

BEFORE THEIR LORDSHIPS:

JIMI OLUKAYODE BADA                     JUSTICE, COURT OF APPEAL

ABUBAKAR SADIQ UMAR                    JUSTICE, COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO        JUSTICE, COURT OF APPEAL

 

APPEAL NO. CA/LAG/CR/1006/2021

BETWEEN:

KAYODE ODUKOYA = = = = = = = = = = = === APPELLANT 

AND

FEDERAL REPUBLIC OF NIGERIA = = = ===== RESPONDENT 

                                               

JUDGMENT

(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)

The Appellant and 2 others were arraigned before the High Court of Lagos State, Ikeja Judicial Division (hereinafter called the lower court), on a 7-count 2nd Amended Information dated 15/02/2021, for the offences of forgery, use of false document, perjury, stealing and obtaining credit by fraud contrary to various sections of the Criminal Law of Lagos State, 2011. The 2nd Amended Information reads: 

“STATEMENT OF OFFENCE- COUNT 1
Forgery contrary to Sections 361 (1)(a) & (b) and 363(1) of the Criminal Law of Lagos State of Nigeria, 2011.

PARTIGULARS OF OFFENCE.
Kayode Odukoya on or about the 21st day of March, 2013 in Lagos within the Ikeja Judicial Division knowingly forged the Memorandum of Loss of Lagos State Certificate of Occupancy registered as No.33 at page 33 in Volume 1011 at the Lagos State Registry, Alausa, Ikeja, in respect of property being and situate at No. 29 Oduduwa Way, GRA Ikeja, Lagos State with an intent that the document may in anyway be used or acted on as genuine to the prejudice of another.

STATEMENT OF OFFENCE- COUNT 2.
Use of false document contrary to Section 364(1) of the Criminal Law of Lagos State of Nigeria, 2011.

PARTICULARS OF OFFENCE.
Kayode Odukoya on or about the 21st day of March, 2013 in Lagos within the Ikeja Judicial Division fraudulently used as genuine the forged Memorandum of Loss of Lagos State Certificate of Occupancy registered as No.33 at page 33 in Volume 1011 at the Lagos State Registry, Alausa, Ikeja in respect of property being and situate at No. 29 Oduduwa Way, GRA Ikeja, Lagos State to the prejudice of some person.

STATEMENT OF OFFENCE - COUNT 3.
Perjury contrary to Sections 85(1) and 86(1) of the Criminal Law of Lagos State of Nigeria, 2011.

PARTICULARS OF OFFENCE.
Kayode Odukoya on or about the 18th March, 2013 in Lagos within the Ikeja Judicial Division knowingly gave false statement on oath concerning Loss of Certificate of Occupancy registered as No. 33 at No.33 at page 33 in Volume 1011 at the Lagos State Registry, Alausa, Ikeja in respect of property being and situate at No. 29 Oduduwa Way, GRA Ikeja, Lagos.

STATEMENT OF OFFENCE - COUNT 4.
Stealing contrary to Section 278(1) & (b) and 285(1) of the Criminal Law of Lagos State of Nigeria, 2011.

PARTICULARS OF OFFENCE.
Kayode Odukoya, First Nation Airways Limited and Bellview Airlines Limited on or about the 7th day of October, 2016 in Lagos within the Ikeja Judicial Division dishonestly converted for your own use the sum of N1,741,994,962.04 (One Billion, Seven Hundred and Forty One Million, Nine Hundred and Ninety Four Thousand, Nine Hundred and Sixty Two Naira, Four Kobo) property of Skye Bank now Polaris Bank.

STATEMENT OF OFFENCE - COUNT 5.
Obtaining Credit by fraud contrary to Section 313(1) (a) and (b) of the Criminal Law of Lagos State of Nigeria, 2011.

PARTICULARS OF OFFENCE
Kayode Odukoya and First Nation Airways Limited on or about the 26th day of February, 2013 in Lagos within the Ikeja Judicial Division by means of fraud obtained the credit of N100,000,000.00 (One Hundred Million Naira) for yourselves from Skye Bank PIc (Now Polaris Bank Ltd) and made the Bank to incur liability by presenting a Memorandum of Loss of Lagos State Certificate of Occupancy registered as No.33 at page 33 in Volume 1011 at the Lagos State Registry, Alausa, Ikeja in respect of property being and situate at No. 29 Oduduwa Way, GRA Ikeja, Lagos State.

STATEMENT OF OFFENCE - COUNT 6.
Obtaining Credit by fraud contrary to Section 313(1) (a) and (b) of the Criminal Law of Lagos State of Nigeria, 2011.   

PARTICULARS OF OFFENCE

Kayode Odukoya and First Nation Airways Limited on or about the 29th day of August, 2013 in Lagos within the Ikeja Judicial Division by means of fraud obtained the credit of N307,268,406.43 (Three Hundred and Seven Million, Two Hundred and Sixty Eight Thousand, Four Hundred and Six Naira, Forty Three Kobo), for yourselves from Skye Bank Plc (Now Polaris Bank Ltd) and made the bank to incur liability by presenting a Memorandum of Loss of Lagos State Certificate of Occupancy registered as No. 33 at page 33 in Volume 1011 at the Lagos State Registry, Alausa, Ikeja in respect of property being and situate at No. 29 Oduduwa Way, GRA Ikeja, Lagos State.

STATEMENT OF OFFENCE – COUNT 7

Obtaining Credit by fraud contrary to Section 313(1)(a) and (b) of the Criminal Law of Lagos State of Nigeria, 2011.

PARTICULARS OF OFFENCE

Kayode Odukoya and First Nation Airways Limited on or about the 8th day of September, 2014 in Lagos State within the Ikeja Judicial Division by means of fraud obtained the credit of N50,000,000.00 (Fifty Million Naira) for yourselves from Skye Bank Plc (now Polaris Bank Ltd) and made the bank to incur liability by presenting a Memorandum of Loss of Lagos State Certificate of Occupancy registered as No. 33 in Volume 1011 at the Lagos State Registry, Alausa, Ikeja in respect of property being and situate at No. 29 Oduduwa Way, GRA Ikeja, Lagos State.”

The facts of the case leading to the filing of the charges above are that, the Economic and Financial Crimes Commission (Complainant herein)
received a petition dated 1st March, 2017 from the law firm of Charles Mekwunye & Co on behalf of Skye Bank Plc (now Polaris Bank) titled " Fraudulent Loan Acquisition and conversion". The crux of the case of the Petitioner was that sometime between 2007-2015 or thereabout, Skye Bank Plc (now Polaris Bank Ltd) offered several loan facilities to First Nation Airways Limited and Bellview Airlines Limited, who were charged along with the Appellant, which loan accumulated to about N3.4 Billion Naira and $2.4Million USD as at December, 2016. That the Appellant, being the alter ego of these two companies, guaranteed the loans and at the point of the application for these loan facilities, there was an undertaking by the Appellant to provide collateral for these loans. In fulfillment of that undertaken, the Appellant provided the following as collaterals (i) No. 29 Oduduwa Way, G.R.A., Ikeja (ii) No.31. Oduduwa Way, G.R.A, Ikeja, (iii) No.35 Ladipo Babaye Street, Ikeja, (iv) Ground Handling Equipment belonging to First Nation Airways and (v) Aircraft Boeing 737-200 with registration number 5N-BFM. It was based on this undertaking that the Bank disbursed the loans to the Appellant and his companies. Following persistent pressure by the Appellant for the Bank to disburse the facilities timeously to stem the loss of business by the two companies, the Bank (Polaris Bank Ltd) disbursed the loans prior to completing legal mortgage on the collateral provided by the Appellant. It was at the point of perfecting the legal mortgage on the collaterals provided by the Appellant with particular reference to No. 29 Oduduwa Way, G.R.A, Ikeja that the Bank requested for the original title document of the property but the Appellant could not come up with same. The Appellant claimed that the original title document was lost and came up with a Memorandum of Loss signed by him attached with a sworn affidavit, Police extract and Newspaper publication. The Appellant stated in the Memorandum of Loss dated 21st March, 2013 that No. 29 Oduduwa Way, G.R.A; Ikeja was registered in the Lagos State Certificate of Occupancy as No.33 at page 33 in Volume 1011 at the Lagos State Registry, Alausa, Ikeja. Based on this information, the Bank instructed its external Solicitor to conduct search at the Land Registry and to use the Memorandum of Loss to complete the perfection of the legal mortgage, but the search was unsuccessful as the said certificate of occupancy number quoted on the Memorandum of Loss was found to be non-existent. When the Bank confronted the Appellant with the latest
discovery of the false information contained in the Memorandum of Loss, the Appellant changed the narrative and claimed that he remembered he used the same property to secure loan at Zenith Bank Plc and that he has discussed with Zenith Bank Plc to release the title documents to Polaris Bank Ltd. The Bank (Polaris Bank Ltd) immediately wrote to Zenith bank Plc asking her to release the title document but Zenith Bank Plc replied that the loan facility granted to the Appellant and the two companies with which he used the title document is still subsisting and that she cannot release any title document to Polaris Bank. The Bank has made concerted efforts to get the Appellant and the two companies charged with him to repay the loan facility granted to them but all efforts to retrieve her money proved abortive, hence the petition to the Economic and Financial Crimes Commission (EFCC).

In proof of its case, the Prosecution (now Respondent) called four (4) witnesses and tendered Exhibits P1 – P59. At the conclusion of the Prosecution’s case, the Defendant/Appellant and the two others charged with him, made a submission of no case, to which the Respondent joined issues by filing a response. In a considered ruling delivered on 22/10/2021, copied at pages 444 - 449 of the Notice of Appeal, the lower court overruled the no case submission and ordered the Appellant and 2 others to enter their defence. Aggrieved by the ruling of the lower court, the Appellant appealed to this court on a four-count Notice of Appeal filed on 27/10/2021. He sought for an order allowing the appeal, setting aside the ruling of the lower court and dismissing the 7-count charge against him.

Briefs of Argument were filed and exchanged. Appellant’s Brief of Argument settled by Dr. A.I. Layonu, SAN, with A.B. Folarin, E.D Onyeke and G.A. Omole, signed by E.D. Onyeke, was filed on 16/08/22. Respondent’s Brief authored by Nnaemeka Omewa was filed on 06/01/2023. At the hearing of the appeal on 11/01/2023, the Appellant’s Brief was adopted by the same team of Lawyers who settled it, just as the Respondent’s Brief was adopted by the same counsel who authored it, i.e., Nnaemeka Omewa.

In the Appellant’s Brief, a lone issue was distilled for determination from the four grounds of appeal, couched thus:

“Did the Respondent establish a prima facie case in respect of the offences contained in the 2nd Amended Information dated 15/2/2021, to warrant the dismissal of the Appellant’s no case submission application dated 5/7/2021?”

The Respondent also submitted a lone issue for determination which he coined as follows:

“Whether, having regard to the evidence of the Prosecution witnesses and the exhibits tendered before the trial court, it could be said that the Respondent has not made out a prima facie case to enable the trial court call upon the Appellant to enter his defence.”

In substance, there is no difference between the issues formulated by both parties to this appeal as both issues are concerned with whether prima facie case has been established by the Prosecution. But in terms of style, the issue formulated by the Appellant is more concise, precise and direct, and I shall adopt it in the determination of this appeal.

Appellant’s Argument

Learned counsel for the Appellant submitted that in arriving at its decision that a prima facie case has been established against the Appellant, the learned trial Judge did not give any reason in his ruling for arriving at that decision, other than merely stating “I am satisfied that there is a prima facie case made out against the Defendants…” Relying on the authorities of Morka & Ors vs. State (1998) LPELR-5631 (CA); Ajayi vs. Ashipa (2004) 46 WRN 35 @ 53; Nwololo vs. Ukegbu (1997), counsel argued that being a judicial responsibility, the ruling of a court must contain a reason instead of mere recourse to expressions such as “I believe”, “I disbelieve” or “I am satisfied”, as done by the trial Judge. It was further submitted that whilst it is trite, that it is not the duty of the Court to weigh evidence or decide substantively on the merits of the charge, at the stage of considering a no case submission, the Court is however expected to give a consideration to the Charge and the evidence adduced by the Prosecution, and determine whether from the evidence adduced by the Prosecution, a prima facie case had been made out against the Defendant, or whether the testimonies of the Prosecution witnesses had been severely discredited during cross-examination, such that same cannot be relied on by the Court to convict the Defendant. It was contended that it was perverse for the lower court to have dismissed the Appellant's no case submission without a reason, relying on Ufoma Paul Eto vs. The State (2008) 43 WRN 112 - 133; State vs. Ajuluchukwu [2011] 5 NWLR (Pt.1239) 78 @ 89-90, and Section 239 Administration of Criminal Justice Law of Lagos State. The court was urged to invoke its powers under section 15 of the Court of Appeal Act to consider the evidence led and decide whether or not a prima facie case was made out against the Appellant.

On the merit of the lone issue for determination, it was submitted on counts 1 & 2 that the Respondent, having failed to establish the elements/ingredients of the offences charged, the lower court was in grave error when it dismissed the Appellant’s no case submission, placing reliance on State vs. Emedo (2001) 12 NWLR (Pt.726) 13; State vs. Ajuluchukwu (supra) and section 239 of the Administration of Criminal Justice Law of Lagos State. On the first count of forgery, counsel submitted that the evidence adduced by the Respondent did not establish any of the ingredients of forgery in the manner alleged in the charge, since two documents, one genuine and the other forged, have not been produced before the lower court, as the Appellant cannot be held to have forged a document that was not proved to be in existent. On this submission, the court was referred to George vs. FRN (2013) LPELR-21895 (SC); Abdulmumin vs State (2021) LPELR-55912 (CA); Agbanimu vs. FRN (2018) LPELR-43924 (CA); Akeem Ogunronbi vs. FRN (2014) LPELR-24391 (CA); Mrs. Grace Onochie vs. State of Lagos (2019) LPELR-52301 (CA); Alake vs. State (1992) LPELR-403 (SC). Learned counsel argued further that since the Memorandum of Loss was prepared by Skye Bank, it cannot be said that it was the Appellant that forged it. That fraudulent intent has also not been established on the part of the Appellant, which negated the establishment of a crucial element of the offence in counts 1 & 2.

On the offence of perjury in count 3, it was the submission of the Appellant’s counsel that none of the ingredients of perjury as defined in section 85 of the Administration of Criminal Justice Law of Lagos State has been established, in that the affidavit alleged to contain the perjury was not shown to have been sworn to in a judicial proceeding or that it concerned a matter that is material to any question intended to be raised in the judicial proceeding, citing Omoregie vs. DPP (1962) LPELR-40916 (SC). He maintained that the existence of judicial proceedings or the intention to institute judicial proceedings remains a mandatory element for the commission of the offence of perjury. Counsel cited A.G. Ekiti State vs. C.O.P. Ekiti State (2018) LPELR-44421 (CA), to support the proposition that all the ingredients of an offence must be proved before it can be said that a prima facie case has been established against a Defendant.

On the allegation of stealing under count 4, it was submitted for the Appellant that it was established at the trial that the sum allegedly stolen were the same loan facilities availed the Appellant’s companies, which were secured with landed properties, an Aircraft and Aircraft Ground Handling Equipment belonging to the Appellant, hence no prima facie case of stealing could have been legally established against the Appellant. That the provision of collaterals by the Appellant for the credit facilities, removed any element of fraud or permanent deprivation of ownership of the funds allegedly stolen.

On the charge of obtaining credit by fraud through the presentation of Memorandum of Loss of Certificate of Occupancy in respect of No. 29 Oduduwa Way, GRA, Ikeja, Lagos, contained in counts 5, 6 and 7 of the 2nd Amended Information, learned counsel submitted that the operating influence on the mind of the Bank, at the time the loans were granted to the Appellant’s company was not established to be the false representation allegedly made to the Bank that there was a Memorandum of Loss of Certificate of Occupancy in respect of the said property, which the Appellant knew to be false, relying on Ezechi Okereke vs. IGP (2021) LPELR-55763 (CA): Michael Ijuaka vs. C.O.P (1976) LPELR-1466 (SC): Jegede vs. FRN (2021) LPELR-55072 (CA). He submitted that the Memorandum of Loss dated 21/03/2013 was not in existence as at 26/02/2013 when the Offer Letter was written, meaning that the document allegedly containing the false representation was not even in existence when the loan facility was granted, to constitute the operating influence on the mind of the Bank in granting the credit facilities to the Appellant’s company. That the Memorandum of Loss was not mentioned in the Letters of Offer. The court was referred to Ogbe vs. Kogi State Government & Ors (2018) LPELR-44796 (CA).

Learned counsel also opined that the evidence of the Respondent’s witnesses was severely discredited during cross examination that no reasonable court can rely and convict on it. This court was called upon to resolve the appeal in favour of the Appellant and hold that no prima facie cases has been established against him in respect of any of the 7 counts, to warrant calling him to enter a defence.

Respondent’s Argument

After referring to the provision of section 239 of the Administration of Criminal Justice Law of Lagos State, learned counsel for the Respondent submitted that at the stage of no case submission, the court does not need to determine the guilt or innocence of the Defendant, rather, all that a court need to do is to ascertain whether a prima facie case has been made out against the Defendant. Reliance was placed on Daboh vs.The State (1977) NSCC Vol.2 p.3095: Aminu vs. The State (2005) 2 NWLR (Pt.909) 180 @ 191; Ya’u vs. The State (2005) 5 NWLR (Pt.917) 1 @ 22. He submitted, relying on Chianugo vs. State (2002) NWLR (Pt.750) 225; Abacha vs. The State (2002) 11 NWLR (Pt.779) 437 @ 486; Ubanatu vs. COP (2000) 7 NWLR (Pt.643) 115 @ 128-129, that prima facie case simply implies that there is a ground for proceeding; that a piece of evidence discloses a prima facie case when it is such that if uncontroverted and it is believed, it will be sufficient to prove the case against the Defendant.

On counts 1 & 2, learned counsel submitted that by its definition, forgery is making a false document and includes a document which tells a lie about itself; Babalola vs. State (1989) 4 NWLR (Pt.115) 264 @ 77; Nigerian Airforce vs. Kamaldeen (2007) 7 NWLR (Pt.1032) 164; Chief Victor Ndoma Egba vs. African Continental Bank Plc (2005) 14 NWLR (Pt.944)79. He submitted that for a document to be held as false, all it needs to do is to tell a lie about itself. It was argued that it is not in all cases of forgery that the prosecution is required to produce the original or genuine document that was forged, and that once it is established that a document which was used/uttered, as the case may be, was in itself false, the offence of forgery is complete. Relying again on Nigerian Airforce vs. Kamaldeen (2007) LPELR-2010 (SC), counsel posited that where a document, which prior to its making by the Defendant is non-existent, once it is made by the Defendant and used for any purpose as it the document was existing, the offence of forgery is complete. Counsel submitted that evidence abound in the Record of Appeal that the Appellant forged a Memorandum of Loss of Lagos State Certificate of Occupancy, which investigation, by way of Exhibits P18 & P19, proved to be non-existent, and it was on the basis of the Memorandum of Loss of Certificate of Occupancy that the Bank continued doing business with the Appellant. It was further argued that the Appellant used the Memorandum of Loss which contained false Certificate of Occupancy number in respect of No. 29, Oduduwa Way, GRA, Ikeja, as collateral for the loan facility that Polaris Bank disbursed to him and his companies. Counsel referred to Ngadi vs. FRN (2018) LPELR-43636 (CA); Awobutu vs. State (1976) LPELR-649 (SC); Osondu vs. FRN (2000) 12 NWLR (Pt.682) 483 @ 504, to buttress the legal position that forgery includes making a false document that was originally non-existent.

On the charge of stealing in count 4, counsel contended that the essential elements required to be proved to establish a prima facie case have been outlined in the cases of Chianugo vs. State (2002) NWLR (Pt.750) 225 @ 235; Mohammed vs. State (2000) FWLR (Pt.30) 2623 2 2626; (2000) 12 NWLR (Pt.682) 596; Oyebanji vs. State (2015) 14 NWLR (Pt.1479) 270 @ 290. He submitted that the Respondent has been able to successfully establish a prima facie case of stealing against the Appellant by the combined testimony of PW1 – PW3 which shows that the loan facility was disbursed to the Appellant and his companies but the Bank was unable to get hold of the title documents of No. 29 Oduduwa Way, GRA, Ikeja used as collateral, due to the fact that the Appellant gave a forged Memorandum of Loss of Certificate of Occupancy purportedly registered at the Lands Registry. In submitting that the Respondent has established that the Appellant has the intention of converting the Bank’s money to his own use, counsel relied on Esthon vs. FRN (2020) LPELR-49994 (CA). He argued that the purchase of the debt owed the Bank by AMCON when a charge was already pending in court and plea taken, does not in any way absolve the Appellant of the offence of stealing, referring to Okpogo vs FRN (2018) LPELR-44271 (CA).

On the charge of obtaining credit by fraud in counts 5, 6 & 7, it was the submission of counsel that the ingredients of this offence is the same with that of obtaining money by false pretense, which he itemized in the Respondent’s Brief and relied on Onwudiwe vs FRN (2006) ALL FWLR (Pt.319)774 @ 779-780; Oiawa vs. FRN ((2008) ALL FWLR (Pt.439) 436 @ 447; Darlington vs. FRN (2018) LPELR-43850 (SC). It was contended that the Appellant, being the guarantor of the several credit facilities, deceived Polaris Bank into disbursing the loans with false Memorandum of Loss of Certificate of Occupancy over No. 29, Oduduwa Way, GRA, Ikeja, which he used as one of the collaterals for the loan facilities. Counsel argued that through the evidence of PW1-PW4, the Respondent has been able to link the Appellant to the offence of obtaining credit by fraud. The court was finally referred to the dictum of Peter-Odili, JSC, in the case of Adama vs. State (2017) LPELR-42266 (SC), on how the court should rule on no case submission, and urged to dismiss the appeal.

Resolution of the Appeal.

This appeal revolves around the ruling of the lower court holding that a prima facie case has been made out by the Respondent against the Appellant, which led to the dismissal of the Appellant’s submission of no case and an order calling on the Appellant to enter a defence to the 7-count charge levelled against him and 2 others. The 7-count charge has been reproduced verbatim at the beginning of this judgment.

As the alter ego of First Nation Airways and Bellview Airlines, the Appellant was the personal guarantor for the various loan facilities granted to the two companies by Polaris Bank Ltd, then as Skye Bank Plc, between 2012 – 2015. Among the collaterals the Appellant provided in his undertaking to secure the loans, was property No. 29, Oduduwa Way, GRA, Ikeja, Lagos, which according to him, the Certificate of Occupancy was registered as No. 33 at page 33 in Volume 1011, at the Lands Registry, Alausa, Ikeja, Lagos. Based on the undertaking of the Appellant, the Bank disbursed the loans to the two companies. It was at the point of perfecting the legal mortgage on the collaterals provided by the Appellant with particular reference to No. 29 Oduduwa Way, G.R.A, Ikeja that the Bank requested for the original title document of the property but the Appellant could not come up with same. The Appellant claimed that the original title document was lost and came up with a Memorandum of Loss of Certificate of Occupancy signed by him attached with a sworn affidavit, Police extract and Newspaper publication. The Appellant stated in the Memorandum of Loss dated 21st March, 2013 that No. 29 Oduduwa Way, G.R.A; Ikeja was registered in the Lagos State Certificate of Occupancy Registry as No.33 at page 33 in Volume 1011 at the Lagos State Registry, Alausa, Ikeja. Based on this information, the Bank instructed its external Solicitor to conduct search at the Land Registry and to use the Memorandum of Loss to complete the perfection of the legal mortgage, but the search was unsuccessful as the said Certificate of Occupancy number quoted on the Memorandum of Loss was found to be non-existent. On the Bank’s inquiry, the Lands Registry wrote Exhibit P19, stating that the registered numbers of the property at No. 29 Oduduwa Way, GRA, Ikeja, furnished by the Appellant, does not exist in their record. When the Bank confronted the Appellant with the latest discovery of the false information contained in the Memorandum of Loss, the Appellant changed the narrative and claimed that he remembered he used the same property to secure loan at Zenith Bank Plc and that he has discussed with Zenith Bank Plc to release the title documents to Polaris Bank Ltd. The Bank (Polaris Bank Ltd) immediately wrote to Zenith bank Plc asking her to release the title document but Zenith Bank Plc replied that the loan facility granted to the Appellant and the two companies with which he used the title document is still subsisting and that she cannot release any title document to Polaris Bank. This is the summary of the evidence against the Appellant at the lower court.

Now, section 239 (1) & (2) of the Administration of Criminal Justice Law of Lagos State entitles a Defendant to make a no case submission at the close of the Prosecution’s case, if, in his view, a prima facie case has not been made out against him. The Appellant’s no case submission was made pursuant to that provision. Simply put, a no case submission connotes that there is no evidence on which the court will convict the Defendant, even if it believes the evidence adduced by the Prosecution. The essence of a submission of no case to answer has been held to be the contention that the evidence of the Prosecution called in discharge of the burden of proof placed on them by law has failed to establish a prima facie case against the Defendant to make it imperative for the court to call upon the Defendant to defend himself or answer to the charge or enter a defence. Where a no case submission is made, the question that comes up is whether the Prosecution has made out a prima facie case requiring, at least, some explanation from the Defendant. A prima facie case, on the other hand, simply means that there is a ground for proceeding with the case against the Defendant; it is not the same as proof, which comes later, when the case for both sides is considered. See Chyfrank Nigeria vs. FRN (2019) LPELR-46401 (SC); Tongo & Anor vs. C.O.P. (2007) LPELR-3257 (SC); Ikuforiji vs. FRN (2018) LPELR-43884 (SC); Atoyebi vs. FRN (2017) LPELR-43831 (SC); Olagunju vs. FRN (2018) LPELR-43909 (SC); C.O.P. VS. Amuta (2017) LPELR-41386 (SC). All that a court is required to do at the stage of no case submission is to determine whether the evidence adduced by the Prosecution is sufficient to warrant an explanation from the Defendant; Amah vs. FRN (2019) LPELR-46347 (SC). 

It is settled law that a no case submission can be upheld where the Prosecution failed to establish a prima facie case against the Defendant or where the Prosecution's case has been so discreted as a result of cross-examination or is manifestly unreliable that no reasonable Tribunal or court can act on it. At this stage of the Prosecution's case, it is not the duty of the Court to satisfy itself that all the ingredients of the offence are established. That aspect of determination is reserved for a decision on the merit. At this level, the Court is only concerned with the establishment of a prima face case against the Defendant which will require him/her to offer some explanation before a decision is made on the merit. See Daboh & Anor vs. The State (1977) LPELR-904 (SC); Tongo vs. C. O.P. (supra); Ekwunugo vs. FRN (2008) LPELR-1105 (SC). 

At the introductory part of his submission, learned senior counsel for the Appellant submitted that the ruling appealed against is bereft of reasoning. In a submission of no case, the court is not called to determine the guilt or otherwise of the Defendant, but to determine whether the evidence put before the court is sufficient to justify calling on the Defendant to offer some explanation. At that stage, the court is not called upon to express an opinion on the evidence before it, but must, as much as possible, be brief and refrain from making any remarks or observations on the facts or evidence before it. See Atoyebi vs FRN (supra); Daboh vs. State (supra); Adama vs. The State (2017) LPELR-42266 (SC). in the case of Agbo & Ors vs. The State (2013) LPELR-20388 (SC), @ 17, Fabiyi, JSC, summed up the position thus: 

"The purport of a no case submission is that the Court is not called upon at that stage to express any opinion on the evidence before it. The Court is only called upon to take note and rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence charged. But if there is legally admissible evidence, however slight, the matter should proceed as there is something to look at. See: Igabele v. The State (supra); Aituma v. The State (2007) 5 NWLR (Pt. 1028) 466."

What the Appellant wanted the lower court to do was to evaluate the credibility of the evidence and the witnesses. That surely would not accord with the dictate of the law as stated above. I hold that the lower court was right when it rejected the invitation of the Appellant’s counsel to embark on a detailed examination of the one-sided evidence when it restated the law in its ruling at page 449 of the Record, as follows:

“From the submissions of counsel alone, it will appear that the court is being asked to embark on a detailed examination of one-sided evidence before it. The law is trite that no matter how slight the evidence linking a Defendant with the commission of an offence levelled against him might be, same is sufficient to require at least some form of explanation from him which implies that there is a ground to proceed. It is not necessary that the evidence must be sufficient to justify a conviction, but that a prima facie case has been made out against a Defendant.”  

In the circumstance, the Appellant’s prefatory remark that the ruling of the lower court was bereft of reasoning, simply because the lower court refused to make any remark or observation on the evidence adduced, is of no moment and is hereby discountenanced.

On the merits of the appeal, I wish to observe that either out of inadvertence or deliberate omission, the Respondent did not render any address or response to the Appellant’s submission on whether a prima facie case has been established against him on the charge of perjury as contained in count 3 of the 2nd Amended Information. In that count, the Appellant was alleged to have knowingly given a false statement on oath in an affidavit concerning the loss of Certificate of Occupancy over property situate at No. 29, Oduduwa Way, GRA, Ikeja, Lagos. The said affidavit was tendered as Exhibit P4 before the lower court. For the offence of perjury to be committed under section 85 of the Criminal Law of Lagos State, the false statement on oath, where established, must have either been made in a pending judicial proceeding or for the purpose of instituting judicial proceeding, and the false statement must concern a matter that is material to any question intended to be raised in the judicial proceeding. In the first place, the affidavit containing the alleged false statement was not made in a judicial proceeding. Secondly, it was not made for the purpose of instituting a judicial proceeding, rather, it was made to explain the purported loss of the Certificate of Occupancy. The statement in that affidavit may be false, but since it was not made in a pending judicial proceeding or for the purpose of instituting one, an essential ingredient of the offence of perjury has not been established against the Appellant. Even if the court believes the evidence on record, it cannot convict the Appellant for the offence of perjury, which is an offence tied to judicial proceeding. That being so, the lower court was wrong when it found that the Respondent has made out a prima facie case of perjury against the Appellant. That finding is set aside and the Appellant discharged on the charge of forgery levelled against him in count 3 of the 2nd Amended Information.

Under counts 1 & 2, the Appellant was charged with the offences of forgery and use of false document. Forgery as a criminal offence denotes the act of fraudulently making a false document or altering a real one to be used as if genuine. In other words, forgery means a false or altered document made to look genuine by someone with the intent to deceive or defraud. See Black’s Law Dictionary, 9th Edition at page 722; Agi vs. PDP & Ors (2016) LPELR-42578 (SC); Nigerian Airforce vs. Kamaldeen (2007) LPELR-2010 (SC); Ndoma-Egba vs.ACB Plc (2005) LPELR-1973 (SC); Nigerian Army vs. Abuo (2022) LPELR-57980 (SC). The above definition of forgery encompasses two situations. The first is making a false document. In this sense, the document does not exist but someone decides to make it fraudulently with the intent to deceive. The second situation involved altering or uttering an existing original document and presenting it as genuine with the intention to defraud. In the instant appeal, we are concerned with the first scenario in the definition of forgery. The allegation against the Appellant is that the Memorandum of Loss signed by him and used as collateral for loan facilities, contained false statement concerning the purported loss of Certificate of Occupancy over property No. 29 Oduduwa Way, GRA, Ikeja, which the Appellant claimed was registered as No.33 at page 33 in Volume 1011 at the Lagos State Registry, Alausa, Ikeja. That the falsity of the statement was confirmed by Exhibit P19, a letter from the Lands Registry stating that the registered numbers of the property at No. 29 Oduduwa Way, GRA, Ikeja, furnished by the Appellant, does not exist in their record. Based on this evidence, the need for the Appellant to offer some explanation as to the lost Certificate and the registration particulars of the Certificate of Occupancy provided by him becomes obvious. With respect to counts 1 & 2 therefore, the ruling of the lower court calling on the Appellant to enter his defence, cannot be faulted.

Under count 4, the Appellant and his two companies were charged with stealing by way of dishonestly converting the sum of N1,741,994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo) property of Skye Bank, now Polaris Bank, to their personal use. The evidence adduced was that the Appellant and two others used false collateral with respect to property No. 29 Oduduwa Way, GRA, Ikeja to obtain the sums in question as loan but refused to return the said amount despite repeated demands by the Bank. According to the Respondent, this signifies an intention on the part of the Appellant to convert the said sum to their personal use. With the evidence of the failure by the Appellant to provide the title documents for No. 29, Oduduwa Way, GRA, Ikeja, as undertaken by him before the disbursement of the loan, and his failure to refund the loan after several demands, an intention to dishonestly convert the amount to his personal use and the use of his companies, can be inferred. With this inference, it becomes the duty of the Appellant to explain that he has no intention to dishonestly convert the Bank’s money to his personal use, and the Appellant can only discharge that duty by way of entering his defence to the charge.

The 5th, 6th and 7th counts charged the Appellant and another with the offence of obtaining credit by fraud. Each of the counts contained distinct amount of money which were obtained from Polaris Bank as credit facilities, using false document as collateral, i.e., the Memorandum of Loss of Lagos State Certificate of Occupancy registered as No.33 at page 33 in Volume 1011 at the Lagos State Registry, Alausa, Ikeja in respect of property being and situate at No. 29 Oduduwa Way, GRA Ikeja, Lagos State. It was contended that the Appellant, being the guarantor of the credit facilities, deceived Polaris Bank into disbursing the loans with false Memorandum of Loss of Certificate of Occupancy over No. 29, Oduduwa Way, GRA, Ikeja, which he used as one of the collaterals for the facilities. On the basis of my finding in treating counts 1 & 2, which I adopt here, the Appellant is obliged to explain that there was no fraudulent intent on his part in guaranteeing the credit facilities for his company with a false Memorandum of Loss of Certificate of Occupancy as one of the collaterals for the facilities, hence the need for him to be called upon to enter a defence to counts 5, 6 & 7 of the 2nd Amended Information.

On the whole, save for the charge of perjury under count 3, the appeal fails for want of merit. While the Appellant is discharged on count 3, his appeal with respect to counts 1, 2, 4, 5, 6 & 7 is hereby dismissed. The Ruling of the lower court calling upon the Appellant to enter his defence to the charges in counts 1, 2, 4, 5, 6 & 7 is hereby affirmed.

MUHAMMAD IBRAHIM SIRAJO

JUSTICE, COURT OF APPEAL

APPEARANCES:
Dr. A.I. Layonu, SAN, for the Appellant, with A.B. Folarin and E.D. Onyeke.

Nnaemeka Omewa for the Respondent