POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ATANO AND ANOTHER

V.

A-G. (BENDEL)

IN THE SUPREME COURT OF NIGERIA

15TH APRIL, 1988.

SUIT NO. SC 37/1987

3PLR/1988/19 (SC)

OTHER CITATIONS

(1988) 2 NWLR (PART 75) 132

 

BEFORE THEIR LORDSHIPS

NNAMANI, J.S.C.

OPUTA, J.S.C.

AGBAJE, J.S.C.

NNAEMEKA-AGU, J.S.C.

WALI, J.S.C.

 

BETWEEN

1. LAZARUS ATANO
2. EUGENE ODIACHI

AND

A-G. (BENDEL STATE)

 

REPRESENTATION

Dr. Mudiaga Odje, S.A.N. (with him A. L. Keshinro) – for Appellants

Michael I. Edokpayi, S.S.C., Bendel State – for Respondent

 

MAIN JUDGEMENT

CRIMINAL LAW AND PROCEDURE – Conspiracy, stealing and Arson ss. 516, 390, 443, Criminal Code Law, Cap. 48, fool. II Laws of Bendel State, 1976 – No case submission length of the ruling – Effect of.

CONSTITUTIONAL LAW – Fair hearing fair trial – Difference between – Natural justice – Fundamental human rights – S.33 (1) 1979 Constitution.

PRACTICE AND PROCEDURE – Appeals – Court of Appeal – Non-compliance with s.287(1)(6) of the Criminal Procedure Law, Cap. 49, vol. 11 Laws of Bendel State of Nigeria – Where non – Compliance not ground of appeal at court of appeal.- Effect of – appeal to Supreme Court.

PRACTICE AND PROCEDURE – Evidence – Circumstantial evidence – Sufficiency of – Conviction based on.

 

 

MAIN JUDGEMENT

AGBAJE,J.S.C. (Delivering the Lead Judgment):

The appellants, Lazarus Atano and Eugene Odiachi, were arraigned in a Sapele High Court, Bendel State on an information containing three counts, namely, 1st count, Conspiracy punishable under Section 516 of the Criminal Code Law, Cap. 48 Volume II Laws of Bendel State of Nigeria 1976, 2nd count, Stealing contrary to Section 390 of the same Criminal Code Law and 3rd count, Arson punishable under Section 443 of the same Criminal Code Law. The case was tried by Obi, J. who after taking the evidence for the prosecution and the appellants and listening to the addresses of counsel for both sides held in his judgment dated 30th June, 1983 that the prosecution had proved beyond any reasonable doubt all the three counts in the information against the appellants. Accordingly he found them guilty on all the three counts and convicted them on the three counts. After listening to allocutus of counsel for the appellants, the learned trial Judge passed the following sentences on the appellants in respect of each of the counts he convicted them:-

“1st accused:

1st count – cautioned and discharged. 2nd count – 15 months I.H.L.

3rd count – 5 years I.H.L. “2nd accused:

1st count – cautioned and discharged.

2nd count – 15 months I.H.L. 3rd count – 5 years I.H.L.

The sentences to run concurrently.”

The appellants, being dissatisfied with their convictions and sentences appealed against them to the Court of Appeal, Benin Judicial Division. That court, coram Eboh, Ikwechegh, and Ajose-Adeogun, JJ.C.A. dismissed the appellants’ appeals in respects of counts 1 and 3 of the information against them, that is to say, the counts of conspiracy and arson and affirmed the convictions and sentences of the appellants in respect of them. The Court of Appeal, however, allowed the appeals of the appellants in respect of the count of stealing the 2nd count and set aside their convictions and sentences in this respect. The reason why the Court of Appeal allowed the appellants’ appeal on the count of stealing will be found in the following passage from the lead judgment of Abai Ikwechegh, J.C.A. in that court:-

“One area that seems not so clear to me is as to how much money was stolen by the appellants on 18/5/81. There is no question that they did steal a large sum of money, but was it N410,000 or less? The proof as to the exact sum is to my mind not satisfactory, but that is only as to what amount. It is for the obvious effort of covering up the theft that the appellants set this fire and hid away or destroyed those two vital books, the General Ledge and the Cash Reserve Register: for their calculation is that in having destroyed the vital evidence the crime could not be established. What folly!

PW4 and PW10 may have differed as to whether or not the total cash holding could be ascertained without the Ledger and the Cash Reserve Register, but is this any sufficient reason why the appellants should steal the money they were paid to keep and then go scot-free? That consideration does not occasion any mis-carriage of justice for the offence of arson is properly proved. I have earnestly studied the Brief of Arguments for the appellants but I find nothing that could be said to have shown that the trial Judge was wrong in his decision. The very best effort that I can make in favour of the appellants is the conclusion that I have reached that what sum of money was stolen from the Bank on 18/5/81 has not be satisfactorily established. If therefore I am right in this, the sentence of 15 months on the 2nd count will not stand.”

The appellants were not satisfied with the limited success they achieved in the Court of Appeal. They have now appealed to this court against that part of the decision of the Court of Appeal which dismissed their appeals on counts 1 and 3 of the information against them that is the counts of conspiracy and arson.

The appellants, each of them, have attacked the decision of the Court of Appeal appealed against on a number of grounds of appeal. Both of them have retained for their appeal the services of the same counsel Dr. M. Odje, S.A.N. who has filed on their behalf a joint brief of arguments to which there is a respondent’s brief of arguments by the State, the respondent to this appeal.

Since the issues for determination in this appeal arising from the grounds of appeal filed by the appellants have been clearly and to my mind correctly set down in the appellants’ brief of arguments it will be work of supererogation to refer to the grounds of the appeal again.  So I shall confine myself for the purposes of reaching a decision in this appeal to the issues arising for determination in this appeal as identified in the appellants’ brief of arguments which issues are as follows:-

“1.     Whether the Court of Appeal was right in refusing to hold that the appellants were not given a fair hearing in this case.

2. Was the Court of Appeal right in not considering and/or not considering adequately the submissions made on behalf of the appellants, particularly those submissions based on the principle of natural justice, the provisions of section 33(1) of the Constitution as well as the juridical authority of Sir B. Vahe Bairamian, J.S.C. of blessed memory?
3. Whether the Court of Appeal was justified in affirming the conviction of the appellants in respect of the count of arson.
4. Whether it was right for the Court of Appeal to have dealt with, and to have upheld the decision of the trial Judge on count 1 relating to conspiracy to steal after that lower court had acquitted them in respect of the substantive offence of stealing.
5. Whether the Court of Appeal was right in setting aside the decision of the trial Court convicting the appellants of stealing in one breath, and holding that they stole a large sum of money, in the other breath.”

Incidentally the respondent’s brief of argument identified the issues for determination as follows:-

“(a)    Whether the writing of a lengthy Ruling by the learned trial Judge overruling the no-case submission of the Counsel for the appellants necessarily vitiates the trial.

(b)     Whether a discharge and acquittal in an offence of stealing necessarily means a discharge and acquittal in the offence of conspiracy to steal.

(c)     Whether the Court of Appeal was justified in affirming the conviction of the appellants as well as the sentence of 5 years I.H.L. passed on them by the learned trial Judge.

(d)     Whether the appellants had a fair trial.

(e)     Whether the decision in Nsoedo v. Police was rightly overruled by the Court of Appeal.”

Issues (a), (d) and (e) above have to do with issues (1) and (2) stated in the appellants’ brief of arguments. Issue (b) above asks the same question as Issue 4 of the appellants’ brief of arguments. Issue (c) above is concerned with the same point raised in the issue 3 of the appellants’ brief. So it appears clear to me that the issues raised by the respondent in its brief are covered by the issues raised in the appellants’ brief.

Before I consider the issues I would like to state the case for the prosecution and the defence of the appellants to it at the trial court.

The case of the prosecution is as follows: There was a fire in the branch of the New Nigeria Bank Ltd. at Orerokpe Bendel State at about 9 p.m. on 18th May, 1981. The building occupied at Orerokpe by the Bank for its banking business is

a bungalow. Inside it is a space which is called the banking hall. Here is the section for the general staff of the bank and its customers with a counter separating the area for the general staff from that for the customers, and a separate entrance door from outside to each area. By the staff section of the banking hall are three rooms. One with a door leading to the staff section of the banking hall is the Secretary’s room. This room is adjacent to another room, the Manager’s room, with a connecting door in between them. The Manager’s room has a separate door leading outside of the bungalow but no entrance door direct to the banking hall. The third room by the banking hall is the strong room with a door connecting it with the hall. I have to give details of the geography of the building housing the bank for reasons hereinafter appearing. The first appellant Lazarus Atano and the 2nd appellant Eugene Adiachi were the Bank Manager and the Accountant respectively of the New Nigeria Bank Ltd. at its Orerokpe Branch at all times material to this case. The 2nd appellant, the Accountant, did his work somewhere in the staff section of the banking hall and needless to say the 1st appellant, the Bank Manager made use of the Manager’s room.

The fire in the bank premises occurred well after business hours. Immediately before it occurred four officers of the bank were on the premises, the two appellants, 2nd P.W., Eric Azigbo, a security officer, one of whose duties was to lock up the doors and windows of the bank premises when every other member of the staff of the bank shall have gone home at the end of a day’s work and 3rd P.W., Anoro Ajogu, a night watch-man. The appellants were at their desks inside the bank building and the 2nd P.W. was inside the bank building too sitting by the main entrance to the staff section of the banking hall. P.W.3, the night watchman was outside the building presumably in a sentry-box. There was power failure from NEPA shortly before the fire incident. The appellants, both of them ordered 2nd P.W. who was then inside the bank building to go out and put on the stand by generator which he did. He then moved back to the banking hall only to discover that he had been locked out and efforts by him to re-enter the building by knocking at the entrance door to call the attention of the appellants inside the bank to him proved abortive. Consequently P.W.2 had to retire to where the night watchman was outside the bank building and sit by him. Whilst there he switched off the generator when electricity from NEPA came back. It was when P.W.2 and P.W.3 were together outside the bank building that P.W.1, Peter Godwin Ukeema, a clerk of the bank at that branch office came back to the bank premises after having earlier that evening closed for work and left. He asked P.W.2 if the Accountant, 2nd appellant was still at work. Upon P.W.2 replying in the affirmative P.W. 1 went to the bank building. When he got there he could not get in for the entrance door was locked. But he observed from outside that something was burning inside the bank building. Hence he raised an alarm which attracted P.W.2 and P.W.3 to the building and who in turn saw from outside the fire in the Secretary’s office through the window. They too raised an alarm and also knocked at the entrance door to the bank. It was some interval after this that the two appellants came out of the building. There was some discrepancy in the case for the prosecution as to the way and manner they came out of the bank. More will be said later in this judgment to this point at the appropriate time.

The fire in the bank building was eventually put off that night with the combined efforts of the bank staff present there that evening and outsiders including the police, who were attracted to the scene by alarms and calls for help made by those who saw the fire. The building was later inspected the day following the night of the incident to determine the extent of the damage done by the fire. Because of the importance of this aspect of the case for the prosecution I would not Ike to paraphrase it. I would rather reproduce verbatim the evidence in this regard. So I turn to the following passages from the evidence of P.W.4, District Manager, Benin Area New Nigeria Bank Ltd. Head Office, Benin.

In Examination-in-Chief.

“In 1981, I was Chief Inspector for the Bank. . .    .

On the 19/5/81, the 1st accused called on me at our Head Office in Benin to report that a fire incident occurred in his branch at Orerokpe on 18/5/81 ………………….. Mr. Ezomo, himself and the 1st accused made for Orerokpe ……………………………………………………. We sought the assistance of the Police to accompany us to inspect the bank both within and without in relation to the incident. This the police did. On getting back to the branch, the gateman who had the key to the main building opened the door. We discovered that the main banking hall particularly the staff section was affected by the fire. I saw some burnt vouchers. These vouchers were on the floor. The furniture in the section were not affected. I went into the typing section which connects the Manager’s office to banking hall staff section, that is Secretary’ office. The effect of the fire was most severe in that section in that some saving (sic) ledger books, filing cabinets typewriters were badly burnt…………………………………………………………………………………..    ……

The effect of the fire was marginally felt by the door and rug by the Manager’s office. The door is the one linking the manager’s office to the secretary’s office. I did not find any damage resulting from the fire in the Manager’s office. In accompany of 1st accused, we went to the entrance to the strong room. The 1st and 2nd accused were asked to open, the entrance to the strong room which they did. This was to enable us establish the cash position. The two of them are custodians of the keys to the strong room. ……………………………………….. There were debris of burnt materials in the strong room even though there was no connection between the fire in the staff section of the banking hall and the strong room ……………………..

I asked the accused to open the safe and to check the contents of the safe, that is money and traveller cheques. This was done in accordance with the various denominations. Some were cross checked by two of my Assistant Inspectors, Mr. Oniobose athd Mr. Dimoho. The accused and the two Assistant Inspectors, signed the documents in which we recorded the money and travellers cheques ………………………………………………………..

The fire in the secretary’s apartment did not spread to the staff section of the banking hall. This is because, the door connecting the two apartment was not affected. The fire incident in the two apartments were separate and apparently unconnected. The door leading to the strong room was also not affected by the fire. The celling in the banking hall was not affected by the fire……………………………………………………………………………………     ………

I later made a formal report of the incident in writing to the Divisional Police Officer, Orerokpe. A team of inspectors, Oluwa-Tosin, Assistant Chief Inspector as team leader were instructed to go and investigate and rehabilitate the branch so that it could be ready for re-opening to the public.

They carried out the assignment and later submitted report to me. From the report, we established that the sum of N410,000.00, which ought to have been in the safe in the strong room as at 19/5/81, was missing. As a result, we made another report of our findings to the Commissioner of Police.”

In cross examination.

“I consider myself that I am now an expert in banking.   My advise on the banking matters should be taken as an expert opinion. I wrote to the Divisional Police Officer by our letter dated 21/5/81 that in the absence of the Reserve Register, and the general ledger, it was not possible to establish the total cash holding by the branch.”

I wrote this as an expert. ……………………………………………………….. ………………………. Up till now the Cash Reserve Register for Orerokpe has not been found. The accused person told me they did not know the whereabouts of the Cash Reserve Register.

This General Ledger is still nowhere to be found.

…………………………………………..        I am ^.not aware^. of^. any^. faulty wiring in the branch at Orerokpe.”

The prosecution led evidence as to how another general ledger was created from the material existing at the Benin Headquarters of the Bank in respect of its Orerokpe branch. The prosecution also put in evidence various documents referred to as the bank’s primary books of accounts. It was the prosecution’s case that a scrutiny of all these documents showed that the cash in hand in the strong room of the Orerokpe bank on 18/5/81 should have been N831,885.08. The prosecution led evidence to show that no money was burnt in the fire disaster. As only N421,884.80 was recovered from the strongroom after the fire incident and as neither of the appellants could have had access to the room without collaborating with the other appellant both of them were charged with stealing the difference between what ought to be in the strong room and what was actually found there i.e. the sum of N410,000.00. The prosecution also led evidence to negative any theory or suggestion that the fire in question could have been accidental resulting from electrical faults.

The appellants each of them went into the witness box. Their defence is a complete denial of the accusations against them. Both of them agreed that shortly before the fire incident occurred they were the only members of the bank staff inside the building. According to the 1st appellant the fire must have been caused by electrical fault. A witness an electrician who had been called by the appellants previously to the bank building to rectify an electric fault which set a socket point on fire was called to testify about what he did and his observations then.

In the end the learned trial Judge accepted the evidence for the prosecution, he rejected the defences of the appellants found them guilty as I have said above. I have to go back now to what happened at the trial court after the case for the prosecution had been closed. Counsel for the appellants made as he was entitled to do a no case submission on their behalf. The no case submission covered every possible ground on which such a submission should be upheld. The no case submission was over-ruled. In doing so the learned trial Judge did not tersely rule that the appellants had a case to answer as he rightly could have done. He however gave reasons backed by authorities for rejecting each of the grounds relied upon by counsel in his no case submission, the result being that the ruling on the no case submission was not short but was of some considerable length running into 15 pages. It is because of the ruling on the no case submission that the appellants are now complaining to us as they did to the Court of Appeal that they did not have a fair trial in violation of their constitutional right. This is what is-sues (1) and (2) in the appellants’ brief of arguments have to do with.

I shall take Issue 1 first. The complaint of Counsel for the appellants is that the court of Appeal was wrong in refusing to hold that the appellants were not given a fair hearing in this case because the ruling of learned trial Judge contained some elements which vitiated the whole proceedings and infringed the appellants’ fundamental human rights guaranteed in Section 31 of the Constitution of the Federal Republic of Nigeria 1979. These elements in the ruling, according to counsel for the appellants, are as follows:-

“(I)    inordinate length;

(ii)     review of evidence of the prosecution;

(iii)    resolution of contradictions in the evidence of the prosecution;

(Iv)    detailed consideration of several legal authorities germane to the case;

(v)     drawing of inference; and

(vi)    making of vital findings/observations; prejudicial to the Appellants and their defence.”

Before I continue with the considerations of the points raised by counsel on this issue I will refer to issue 2 wherein counsel for the appellants complained that the Court of Appeal did not consider at all or adequately the submissions made on behalf of the appellants particularly those submissions based on the principle of natural justice, the provisions of Section 31(1) of the Constitution as well as the juridical authority of Sir Vahe Bairamian J.S.C. of blessed memory. It is difficult to see how counsel can complain in one breath on issue 1 that the Court of Appeal was wrong in refusing to hold that the appellants were not given a fair hearing at the trial Court and then in another breath to complain on issue 2 that, that Court, the Court of Appeal, did not consider at all or adequately the submissions as regards the failure of fair hearing at the trial Court. This is all more so when counsel for the appellants in his submissions on Issue 1 referred to several pas-sages from the lead judgment of the Court of Appeal dealing with the submissions as to lack of fair hearing. I will say straight away that there is no substance in my judgment in the allegation of counsel for the appellants that the Court of Appeal did not consider adequately or at all the submissions of counsel on behalf of the appellants on the issue of fair hearing raised in that Court. I will however consider all the other points made on Issue 2 as to the failure of fair hearing along with those made on Issue 1 on the same point in this judgment.

Counsel for the appellants relied heavily on what Sir Vahe Bairamian said in his book Criminal Procedure and Evidence for his criticism of the lengthy ruling on the no case submission. This is what Sir Vahe Bairamian had to say in this regard:-

‘The need to write a considered ruling on a point of law arises when the Court is minded to rule that there is no case to answer and to acquit: for the prosecution may wish to appeal.”

And as to what should guide this Court on the issue of whether there is a fair hearing or not in the matter now before us on appeal counsel referred to the following passage from the judgment of Obaseki, J.S.C. in Anon AND OTHERS v. Elemo AND OTHERS (1983) 1 S.C. 13 at pages 23-24:-

“Fair hearing, therefore, must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties.”

Counsel for the Respondents countered the submission of the counsel for the appellants on the issue of fair hearing by saying that a ruling on a no case sub-mission will not on account of its length alone vitiate the proceedings in the case. So according to counsel for the respondents whether the appellants had a fair hearing or not will not be determined by reason of the lengthy ruling the learned trial Judge made. Counsel then drew our attention to the decision of this Court in Isiyaku Mohammed v. Kano Native Authority (1968) 1 All N.L.R. 424 where Ademola, C.J.N. said as follows as regards the test of a fair hearing:-

“It has been suggested that a fair hearing does not mean fair trial. We think a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing …………… is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case.”

At this stage I too must recall what was said in Regina v. Longham in The Times of April 25th, 1972 by the Lord Chief Justice to the effect that in order to show that justice was not seen to be done it was necessary to point to some factor on which the doing of justice depended, and then show that that factor was not visible to those present in court. Again I must refer to the case of Lake District Special Planning Board v. Secretary of State for the Environment AND Anor. in The Times of February 18, 1975 where it was held that there is no such thing as a technical breach of the rules of natural justice since the concept was concerned with matters of sub-stance and not technicalities.

In view of these authorities I will hold straight away that I am in agreement with counsel for the respondent that a lengthy ruling on a no case submission will not by its length alone vitiate the proceedings. In other words a lengthy ruling over-ruling a no case submission will not by its length alone infringe the fundamental human right of an accused person as enshrined in Section 33 Sub-Section 1 of the Constitution.

Counsel for the respondent next called our attention to the decisions in Akpan Ekanem v. The King 13 W.A.C.A. 108 and Odofin Bello v. The State (1966) 1 All N.L.R. 223 at 227, on the point as to the test to be applied in determining whether or not a ruling on a no case submission has vitiated the whole of the criminal proceedings. In Ekanem v. The King, the old West African Court of Appeal said as follows at page 109 in this regard:-

“It is, perhaps, unfortunate that considerable argument has arisen in the course of the hearing of this application by reason of the observation made by the learned trial Judge at the time at which he held that there was a case for the defence to answer. It is our opinion that as a rule where a submission that there is no case to answer is to be rejected by the trial Judge, his observations should be confined to the ruling, and that it is, as a rule, desirable that there should be no observations on the facts of the case at that stage at all.”

On the same point the Supreme Court said in Odofin Bello v. The State (supra) as follows:- –

“Whilst it is not the aim of the Court to discourage a Judge from discussing the matters of interest in his Judgment, we would like to warn against any ruling of inordinate length in a submission of a no-case to answer as too much might be said as was done in this case, which at the end of the case might fetter the Judge’s discretion.”

In the consideration of the point at issue it will perhaps also be helpful to refer to the practice note of the Queen’s Bench Division, England (Lord Parker, C.J., Ashmorth and Fenton Atkinson, JJ.) in (1962) 1 All E.R. 448 given to Magistrates to guide them in the consideration of a no case submission:-

“A submission that there is no case to answer may properly be made and up-held:

(a)     when there has been no evidence to prove an essential element in the alleged offence;

(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 reason-able tribunal could safely convict on it.

Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to render has been placed before it. If how-ever, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.”

The principles I can gather from the Practice Note of Queen’s Bench Division, Ekanem v. The King and Odofin Bello v. The State, all of them supra as regards the issue I am now considering are as follows:-

Where a ruling rejects a no case submission

(i)      the observations of the court on the evidence at that stage should be con-fined to the ruling in the sense only that a reasonable tribunal might convict on it and there should be no observations at all on the facts of the case implying that they have been proved or established at that stage.

(ii)     the ruling should not contain any feature or element suggesting that the court or tribunal has fettered any discretion it can only judicially exercise after the whole of the evidence which either side wishes to tender has been placed before it.

The above principles will in my view constitute the legal rules which ensure that justice is done to the parties in the consideration of a no case submission made by counsel on behalf of an accused person and rejected by the court.

Counsel for the appellants complained that the Court of Appeal misunderstood the decision in Nsoedo v. Police (1972) 2 E.C.S.L.R. 519 as regards the effect of a lengthy ruling. There is. no doubt that the lead judgment of the Court of Appeal gave the impression that Nsoedo v. Commissioner of Police decided it that a lengthy ruling on a no case submission would by its length alone deny the accused person of a fair hearing and, consequently vitiate the proceedings. The case does not decide anything of that nature.

The appellants’ appeal in the case was upheld by the learned Judge on appeal because the learned trial Magistrate in his ruling on a no case submission made definite findings of fact which were the crux of the case against the appellant with-out first giving the appellant an opportunity to defend himself. In the circumstances, the appellate Court was unable to say that the appellant had a fair trial.

The learned Judge on appeal in arriving at his decision applied the decision in Odofin Bello v. The State (Supra).

So there is no question of Nsoedo v. Police being wrongly decided and the question of its being overruled does not arise. I agree with counsel for the appellants that the Court of Appeal misunderstood the decision in Nsoedo v. Police (supra) for it took the wrong view that that case decided it that a lengthy ruling will on account of its length alone vitiate the proceedings. This however does not mean that the Court of Appeal based its decision on the point in issue wholly and solely on the wrong impression it formed of that case. So it will not be right to over-turn that decision without considering the main point made by that court in this regard, namely, that the ruling of the trial court on the no case submission did not amount to a denial of fair hearing to the appellants. This takes me to the following points I will now consider.

Apart from the length of the ruling on the no case submission counsel for the appellants complained about, it was the submission of counsel that the ruling contained In addition the following features:-

“(1)   resolution of contradictions in the evidence of the prosecution;

(2)     drawing of inference; and

(3)     making of vital findings/observations, prejudicial to the appellants and their defence.”

If the ruling in fact features these elements then the proceedings in this case would be vitiated for the learned trial Judge would not have conducted the trial in accordance with the legal rules which would ensure that justice is done to the appellants when ruling on the no case submission. I have stated the principles above.

The resolution of Issues 1 and 2 in this appeal boils down in my judgment to the point whether or not the above allegations counsel for the appellants made against the ruling on the no case submission are well founded.

There is no doubt that the ruling of the learned trial Judge ran into some 15 pages. A considerable part of the ruling was devoted to setting down the case for the prosecution and the submissions of counsel for both sides on the no case sub-mission. There is also no doubt that the learned trial Judge referred to the contradictions in the evidence for the prosecution upon which counsel for the appellant based his submission that 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 can safely convict on it. There is equally no doubt that learned trial Judge referred to the authorities in respect of the submission by counsel that the charge of stealing was wrongly laid under Section 390 of the Criminal Code Law. There is again no doubt that the learned trial Judge referred to the law on the crime of conspiracy.

Pausing here for a moment one cannot validly say that the learned trial Judge in doing all what I just said he had done had in any way fettered any discretion which he had to exercise at the end of the day nor can one say with justification that at that stage he was considering whether he would convict the appellants.

To my mind the effective parts of the ruling of the learned trial Judge on the point at issue are as follows:-

‘The fact however, still remains whether, having regard to the facts disclosed in evidence that the accused persons are officers of the bank who allegedly stole money belonging to their employers, can properly be convicted if these facts are established, for a lesser type or class of stealing under section 390 of the Criminal Code or whether, without amendment, they could be convicted under section 390(7) of the Criminal Code. ……

In the case in hand, the accused^. persons cannot^. be said to have been taken by surprise since the main offence in the indictment is that of stealing.

It is my view that they could defend themselves on the footing of the evidence revealed in the prosecution’s case which clearly establishes a prima facie case of stealing property belonging to the bank their employer. At the end of the day, if it becomes necessary, I will decide the crucial question of the appropriate section of the Criminal Code whether, under the section charged, or under Section 390(7), a conviction may be secured.

In relation to the question of contradictions said to exist in the evidence of the prosecution witnesses it is my view, they are not so fundamental as to vitiate the proceedings, but are matters which may be taken into consideration in the final analysis, in deciding the credibility of the witnesses concerned. The same thing applies to the submission in relation to the authenticity of the computations in accounts tendered by the prosecution. Whether the various documentary evidence tendered are authentic or not, is a matter of weight, with which I am not at the moment concerned in considering the simple question of whether a prima facie case had been established by the prosecution to warrant the accused persons being called upon for their defence.

In view of what have been stated above, I am of the clear conviction that, a prima facie case is made out against the accused persons sufficiently enough to require them to make their defence. The submission of no case to answer made on their behalf is therefore overruled. I accordingly call upon learned defence counsel to proceed with their defence.”

Counsel for the appellants has not been able in the whole of his submissions to us on Issues 1 and 2 to point out to us any other material in support of his sub-mission besides the ones I have quoted above. Taking the most critical view of the above passages from the ruling of the learned trial Judge I cannot come to the conclusion that the allegations of counsel for the appellants against the ruling on no case submission to which 1 have just referred above are in any way substantiated. That being so I cannot hold that the learned trial Judge in making his ruling on the no case submission has violated any legal rule formulated to ensure that justice is done to the parties. I have stated the legal rules as I conceive them earlier in this judgment.

Having held as I have done I cannot say that in the ruling that the learned trial Judge gave on the no case submission there was absent some factor on which the doing of justice to the parties to the case, particularly the appellants, depended. I therefore come to the conclusion that the Court of Appeal was right in refusing to hold that the appellants were not given a fair hearing in this case. So I resolve Issues 1 and 2 against the appellants.

I agree with counsel for the respondents that the submission on behalf of the appellants that the learned trial Judge did not comply with the provisions of Section 287 of the Criminal Procedure Law, Cap. 49, Vol. ll, Laws of Bendel State of Nigeria, 1976 to which the learned Justices of the Court of Appeal did not even advert their minds is untenable and cannot be sustained. Non compliance with the provisions of Section 287(1) of the Criminal Procedure Law did not form part of the grounds of Appeal filed and argued before the Court of Appeal so it was not an issue for determination in that court. It is therefore not right for learned counsel for the appellants to accuse that court of not considering the point.

I also agree with learned counsel for the respondent that, in any case, the learned trial Judge after reading his ruling on the no case submission and since the appellants were represented by counsel what would apply would be the pro visions of Section 287(1)(b) of the Criminal Procedure Law which enjoin the court to call upon the legal practitioner representing the appellants to proceed with the defence which the learned trial Judge did. There was no obligation on the learned trial Judge under Section 287(1) of the Criminal Procedure Law to do more than this in the circumstances. See Edet Akpan v. The State (1986) 3 N.W.L.R. Part 27 p.225 at 227 and 235 to 236.

I shall take the other issues seriatim starting with Issue 3 whether the Court of . Appeal was justified in affirming the conviction of the appellants in respect of the count of arson. I will say that in view of my ruling on Issues 1 and 2 above, it follows that I reject the submissions of counsel for the appellants that the count of arson must fail because of the length of the ruling of learned trial Judge on the no case submission. It remains for me to determine whether or not on the totality of the evidence before the trial court the conviction on the count of arson can be sustained.

There is no doubt as submitted by counsel for the appellants that there was no direct evidence that the appellants committed the offence and that the case for the prosecution was based entirely on circumstantial evidence. There is equally no doubt that the learned trial Judge correctly directed himself on this point. The relevant authorities on the point to wit Tepper v. The Queen (1952) A.C. 486 and Uko-rah v. The State (1977) 4 SC.167 were present to his mind. These authorities and others like Malekodunmi v. Queen (1952) XIV W.A.C.A. 64 at page 69 and Ikem v. State (1985) 1 N.W.L.R. (Pt.62) 378 at p.389 establish it that circumstantial evidence to warrant the conviction of an accused must be cogent and compelling and that

there must be no aspect of the case which weakens or destroys any inference as to the guilt of the accused person that could be drawn from the circumstantial evidence.

The complaint of the counsel for the appellants is that the learned trial Judge did not correctly apply the principles in these cases to the case in hand. Earlier on in this judgment I have outlined the evidence for the prosecution and the defence. This evidence shows and it is not in dispute that the appellants were the only persons in the bank building shortly before a fire broke out there. There was evidence from the prosecution which the trial Judge accepted that P.W.2 was locked out of the premises after he had gone out of the behest of the appellants to switch on the generator when the electricity supply from the national grid failed for a short while. There was also evidence for the prosecution which. the learned trial Judge again accepted that the fire incident was not due to an accident that is to say it did not occur as a result of an electric fault as contended for by the appellants. To this extent the prosecution has negatived, [as it was its duty to do see R. v. Bone (1968) 2 All E.R. 644]; Sholuade v. The Republic (1966) 1 All N.L.R. 134 ……. the defence of accident raised by the appellants. There was equally evidence from the prosecution which again the learned trial Judge accepted that the fire occurred at isolated places in the bank building and that the fire did not spread to the other sections.

There is no evidence at all suggesting that any of the prosecution witnesses were implicated in the fire incident, nor was there any evidence that any of the prosecution witnesses was an accomplice of any person implicated in the fire incident. It follows therefore that there is no basis for the suggestion by counsel for the appellants that P. W.1 or P.W.2 was privy to the crime of arson charged in Count 3. Truly enough both of them by itself alone will not make an accomplice in this case. It is this aspect of the case which counsel for the appellants relied upon in the brief of argument for the appellants, for the submission that there is coexisting circumstances in this case which weakened or destroyed any inference as to the guilt of the appellants that can be drawn from the circumstantial evidence in this case. Since as I have just said P.W.1 or P.W.2 cannot be said to be implicated in the fire incident nor can they be said to be accomplices there is no basis whatsoever for the submission put across by Counsel for the appellants to which I have just referred.

The case for the prosecution established it _.beyond doubt that the fire at the back premises was caused by human agencies. It was also established beyond doubt by the evidence for the prosecution that it was the appellants alone who had any opportunity of committing the crime and that no other person had that opportunity. In the circumstances I agree with the submission of counsel for the respondent that the circumstantial evidence in this case was cogent and compelling enough to warrant the conviction of the appellants.

The contradictions referred to by counsel for the appellants in the evidence of the prosecution witnesses are not such as will raise any doubt as to the guilt of the appellant and the trial count in its judgment was right in over-looking them. See the case of Jimoh Ishola alias Ejigbadero v. The State (1978) 9 AND 10 S.C. 81 at 110-111; Christian Nwosisi v. The State (1976) 6 S.C. 109 at 110-111.

Counsel for the appellants raised the point that because the Court of Appeal found the appellants not guilty of the offence of stealing the appellants could no longer be properly convicted of the offence of arson since, according to counsel, the motive of the appellants as alleged by the prosecution for the offence of arson was to cover up money stolen by them which is the subject matter of count 2. It is true that the motive of the appellants for the offence of arson as alleged by prosecution was to cover up the money allegedly stolen by them. It is however not a sine qua non for the success of the offence of arson charged that the motive for it should be established before the offence itself can be said to have been proved to have been committed by the appellants. So the mere fact that the motive for the offence was not proved will not necessarily detract from the inference to be drawn from the circumstantial evidence in this case as to the guilt of the accused per-sons. And I have said above that the circumstantial evidence irresistibly pointed to their guilt.

It is note worthy that although the Court of Appeal acquitted the appellants on the count of stealing yet it found that the appellants stole a large sum of money. I must confess that I cannot see the true or proper basis for the acquittal or discharge of the appellants by the Court of Appeal on the count of stealing. Even if it is only established that the prosecution proved that the appellants stole part of the money alleged to have been stolen by them, as no doubt the findings of the Court of Appeal in this case implies, that will not be a valid ground for setting aside the conviction of the appellants on the count of stealing. It is trite law that it is un-necessary for the prosecution to prove that all the articles mentioned in the information have been stolen for the charge to be sustained. The charge will be sustained If it is proved that some of the articles have been stolen. It is only when considering the sentence to be imposed that attention may be drawn to the effect that it has not been proved that all the things mentioned in the information or indictment have been stolen by the appellants. See Machent v. The Queen (1970) 2 All E.R. 255.

Although there is no appeal by the prosecution against the acquittal by the Court of Appeal of the appellants on the count of stealing I think I am entitled to comment on this aspect of the judgment of the Court of Appeal since Counsel for the appellant himself had submitted in the appellants’ brief of argument to us that the Court of Appeal having duly acquitted the appellants on the count of stealing, there was no further basis on which the Court of Appeal could either convict the appellants on the count of conspiracy to steal or hold that the appellants had stolen a large sum of money.

I have already earlier on in this judgment set down the reasons given by the Court of Appeal for allowing the appellants’ appeals on the count of stealing. It was said therein that the proof as to the exact sum of money allegedly stolen by the appellant was not satisfactory. The learned Justices of the Court of Appeal did not show in what respect the proof by the prosecution as to the amount stolen by the appellant was not satisfactory. I have earlier on in this judgment set out clearly the evidence relied upon by the prosecution to establish that the sum of N410,000.00 was stolen by the appellants. The evidence showed quite clearly that on 18/5/81 a sum of N831,885.08k ought to have been in the strong room and only a sum of N421,884.80k was found there when the appellants opened it. And the evidence showed clearly that the keys to the strong room were kept by the appellants and that without the two of them being present to present the keys in their pos-session neither of them nor for that matter anybody else can enter the strong room. It is on this circumstantial evidence that the prosecution asked the trial court to hold that the appellants acting in concert must have stolen the difference between the money which ought to have been in the bank 18/5/81 and what was in fact found there on that day. The difference is N410,000.28k which is the amount charged in count 2 as having been stolen by the appellants. On this evidence it is clear that the prosecution had proved not only that the appellants stole a large sum of money but in fact that the sum of N410,000.28k. So I reject the submission of the counsel for the appellants that there was not basis for the finding of the Court of Appeal that the prosecution had proved that the appellants stole a large sum of money. I dare say that there would have been something in an appeal by the State against the acquittal of the appellants on count 2 if such an appeal had been lodged.

From what I have just said above I come to the conclusion that the motive the prosecution attributed to the appellants for the commission of the offence of arson charged has been proved in this case. In other words the prosecution had proved not only that the appellants were the only persons who had the opportunity to commit the offence of arson. It was also proved by the prosecution that they had the motive to commit the crime that is to say to destroy the evidence which could lead to the discovery of the money of the bank stolen by them.

In my judgment therefore I come to the conclusion that the Court of Appeal was right in confirming the conviction of the appellants in respect of the count of arson. What I have just said too will dispose of Issue 5 which is whether the Court of Appeal was right in setting aside the decision of the trial court convicting the appellants of stealing in one breath, and holding that they stole a large sum of money in another breath.

I have said enough above to show that the finding of the Court of Appeal that the proof of the exact sum of money stolen by the appellants proferred by the prosecution was unsatisfactory is definitely questionable and that in any event on the evidence produced by the prosecution it was proved that the appellants stole a large sum of money. So there is no question of the Court of Appeal being wrong in saying that the appellants stole a large sum of money.

Finally I shall deal with Issue 4 which is whether it was right for the Court of Appeal to have dealt with, and to have upheld the decision of the trial Judge on count 1 relating to conspiracy to steal after that court had acquitted them in respect of the substantive offence of stealing.

Learned counsel for the respondents submitted on this issue in the respondent’s brief of argument that is has been held in the Supreme Court case of Francis Tete Lawson AND OTHERS v. The State (1975) 4 S.C. 115 at 121 – 122 that it is not an inflexible rule of law that a discharge on the count of conspiracy must involve a discharge on the substantive offence or offences or vice versa and that the course to be taken by the court must be dictated by the circumstances of the case.

In that case what was at issue was whether the appellants in the case having been discharged by the learned trial Judge on the count of conspiracy it was not inconsistence to have found him guilty of the substantive offence contained in the information. It was held in that case that there was no inconsistency. That case is strictly not in point here for we are now dealing with a reverse situation, that is, the appellants having been found not guilty of the substantive offence would it not have been an inconsistence to have found them guilty of the count of charging conspiracy to commit that offence.

Conspiracy to commit an offence is a separate and distinct offence by itself and it is independent of the offence of the actual commission of the offence to which the conspiracy relates. It is obvious that the offence of conspiracy to commit an offence will necessarily precede in point of time the offence of the actual commission of the offence to which the conspiracy relates. So it is possible that one may be guilty of conspiracy to commit an offence and yet not be guilty of the actual commission of the offence. For it is possible that one might have changed one’s mind before the offence was committed but after the conspiracy might have been hatched. And consequently that one might not have gone along with the other conspirators in the commission of the offence itself. In other words that one might have dropped out of the whole scheme after the conspiracy had been entered into. Everything depends on the circumstances of each case. So the straight answer to this issue in my view is that there is no inconsistency at all in the decision of the court of Appeal upholding the decision of the trial court on count 1 relating to the conspiracy to steal and the decision of the Court of Appeal acquitting the appellants in respect of the substantive offence of stealing. For the evidence of the commission of the substantive offence might have been found wanting. I have said that in the instant case the evidence is not even inadequate.

It follows from what I have been saying above that the appeal of each of the appellants in my judgment fails. The decision of the Court of Appeal is confirmed by me. The convictions and sentences of the appellants are also affirmed by me.

NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, Agbaje, J.S.C. and I agree entirely with his reasoning and conclusions. The facts of this case have been well set down by my learned brother and no useful purpose would be served in repeating them. It is enough to mention that the appellants were convicted by the learned trial Judge, Obi, J. of the offences of conspiracy to steal, stealing and arson. They were sentenced to various terms of imprisonment. On appeal to the Court of Appeal, Benin Judicial Division, that court quashed the conviction on the second count i.e. stealing but affirmed the conviction and sentence on the other counts. The appellants then appealed to this Court.

In his brief of argument, learned Senior Advocate for the Appellants, Dr. M. Odje, set down 5 issues as arising in this appeal. It is only in respect of issues t and 2 that I would wish to make a concurring comment. The other 3 issues, and indeed all the issues, have been fully dealt with in the lead judgment. The circumstantial evidence available in this case was so positive and conclusive that I can-not fault the two lower courts in finding the appellants guilty of arson. As regards the count on stealing, I am equally at a loss to understand the basis on which the Court of Appeal held that the amount stolen had not been established. From the evidence at the trial, the appellants were the only people who had access to the strongroom and the safe. The ledger book was last seen with the 1st Appellants. The Cash Reserve Register was in the custody of the 2nd Appellant. After taking stock of the money in the safe after the fire, it was found that N410,000, the subject of the charge, was missing.

As for the contention that the appellants ought to have been convicted of conspiracy to steal once they were discharged on the substantive offence of stealing, it is well settled that conviction on conspiracy does not fail merely because the conviction on the substantive offence had failed See Francis Tete Lawson and OTHERS v. The State (1975) 4 S.C. 115, 121 and 123. Also Ogbozor v. Inspector-General of Police (1964) 1 All N.L.R. 9. Anything could have happened after the conspiracy was complete. Besides, in this case it seems fairly clear that the conspiracy, stealing and arson were closely connected. Issues 1 and 2 in the appellant’s brief were as follows:-

“1. Whether the Court of Appeal was right in refusing to hold that the Appellants were not given a fair hearing in this case.

2. Was the Court of Appeal right in not considering an/or not considering adequately the submissions made on behalf of the Appellants, particularly those submissions based on the principle of natural justice the provisions of Section 33(1) of the Constitution as well as the judicial authority of Sir Vahe Bairamian, J.S.C. of blessed memory.”

The main complaint of Dr. Odje here was that the ruling of the learned trial Judge on the submission of no case was of inordinate length. The learned trial Judge had so fully dealt with the issues of law and fact that his discretion was fettered – in effect that he had decided all the issues before hearing the defence of the appellants. Dr. Odje referred to Ntukidem and OTHERS v. Oko and OTHERS (1986) 5 N.W.L.R. (Part 45) 909, 933; Adigun and OTHERS v. Attorney-General of Oyo State and OTHERS (1987) 1 N.W.L.R. (Pt. 53) 673 at 708-709, two recent decisions of this Court on fair hearing. In oral argument too, he took the Court through the record of proceedings indicating portions of the learned Judge’s ruling he though sup-ported his complaint.

Any complaint of absence of fair hearing is always serious. Not only is the right to fair hearing a Constitutional right but fair hearing is fundamental in our system of administration of justice. Is the trial fair such that all in Court would go away with the feeling that justice had been done? In the instant case, it seems to me that the learned trial Judge’s ruling on the no-case submission was unduly long. Per-haps he was tempted to answer all the points raised by the learned Senior Advocate in that submission. It is wiser to say very little at the point of a no-case submission particularly ff the Court is inclined to rule against the accused person. Such a course would remove the danger of dealing with matters which can be properly dealt with after the accused person’s defence. The proper approach was stated by the late Sir Vahe Bairamian when he stated as follows:-

‘The need to write a considered ruling on a point of law arises when the court is minded to rule that there is no case to answer and to acquit: for the prosecution may wish to appeal.”

[Criminal Procedure and Evidence (1971) 11].

But I think it would be wrong to hold that just the inordinate length of the ruling would be enough to vitiate it. See Odofin Bello v. State (1967) N.M.L.R. 1. The central question must remain, whether the Judge has said so much that his discretion has been so fettered that he cannot do justice to the accused person after his defence. In this case, I have carefully gone through the ruling and I do not think that the learned Judge had fettered his discretion. Perhaps all I can say is that Abai Ikwechegh, J.C.A. was right when he said that the ruling “is a brilliant exercise over-done.” Most of the portions of the ruling to which the learned Senior Advocate referred us, showed that the learned trial Judge still kept an open mind. for in-stance, at page 96 line 12 and page 97 line 5 the following passage occurred:

“It is appropriate to consider first the court charging the accused person with conspiracy in relation to the no case submission which has been made on their behalf…………………………………………………………………………………   ………….

If therefore, as has been impressed^. by^. the^. prosecution in this case, the accused persons after defrauding their employer of the high sum alleged, in the bid to cover up the crime, caused the disappearance of some vital documents and proceeded thereafter, to set ablaze the Secretary’s Office where other vital documents are stored, it is to my mind, idle to argue, that conspiracy cannot be inferred from these facts If established in evidence.”

For these reasons, and the more detailed reasons ably set down in the lead judgment, I too would, and do, dismiss this appeal. The judgment of the Court of Appeal is affirmed.

OPUTA, J.S.C.: I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother Agbaje, J.S.C. and I am incomplete agreement with his reasoning and conclusions. The facts were carefully and painstakingly set out in minute details in the lead judgment and there is no need here to repeat those facts unnecessarily.     Suffice it to say that the salient and important facts of this sad case were really not in dispute:

1. It was not in dispute that on the night of the fateful day 18/5/81 both Appellants were inside the bank on some business legitimate or illegitimate.
2. It was not disputed that Eric Azigbo (P. W.2) a security officer could not lock up because the Appellants were still in their offices in the bank ‘Working” late.
3. It is common ground that at a certain stage at about 8 p.m. N.E.P.A. light went off and the 2nd Appellant, the Bank Accountant ordered P.W.2 to start their stand-by generator. The P.W.2 went, started the generator and coming back, he discovered the door had been locked from inside. He could not get into the banking hall where he sat earlier on.
4. It is common ground that N.E.P.A. light was afterwards restored.
5. It is not in dispute that P.W.1, another Bank official P. G. Ukeema, called at the Bank on his way home. He then discovered that the Secretary’s office was in flames.
6. There is no dispute at all that certain sections of the bank were gutted by fire.
7. It is common ground that the two Appellants were still inside the bank building when the fire started.
8. From their own admissions the two Appellants were the only officials of the bank who came out from the burning bank.

The only issue of fact that was in dispute was – whether the fire which gutted some carefully chosen sections of the bank on the night of 18/5/81 was deliberate as the prosecution alleged or accidental, due to some electrical fault as the appellants suggested? On this solitary issue the learned trial Judge Obi, J. made the following finding at p.164 of the record of proceedings:-

“I am in no doubt at all that the fire which gutted the bank on the crucial date was deliberately caused by the two accused persons. It is of course, true that motive is not essential to find an accused person guilty but I should state in this particular case that the motive for the fire was to destroy all relevant documents that could give a clue to the cash holding of the bank on that date and thus destroy evidence of their theft. I am fortified in this view by my firm conviction that the 2nd accused locked out Eric Azigbo obviously to enable them perpetrate their nefarious and ignoble act in utmost secrecy ……………..

The above findings of the learned trial Judge were not disturbed nor upset on appeal. This means that the appellants now have the concurrent findings of the two Courts below to contend with. On the facts, it is an uphill task for the appellants. Before going to the law and the Issues and Questions For Determination, I will pause to observe that the facts of this case offer yet another solid example of the moral decay in our society. That a Bank Manager appointed to manage, and entrusted with the bank’s money, should steal the very money entrusted to him shows how deep the “get rich quick” virus has eaten into our social fabric. That an Accountant appointed and paid to keep the books of his bank, will burn those books in order to destroy all evidence of his theft, looks grossly machiavellian. And yet this is what one sees everyday. It is the recurring decimal of theft followed by arson. This raises a social question – Are we not now paying very dearly for the wrong emphasis we have placed on the mere acquisition of wealth no minding how it is acquired? After all the view of Criminology is that society prepares the crime and the criminal merely commits it. Do we not need urgently a reorientation and a transvaluation of our value system especially our view on money? That is the question of our society. The question for me is to consider the Questions for Determination.

Issue No. 1: Fair Hearing

In the appellants’ Brief this issue was formulated as follows:

‘Whether the Court of Appeal was right in refusing to hold that the appellants were not given a fair hearing in this case?

The Respondent’s Brief brought out the crux of the question:-

‘Whether the writing of a lengthy Ruling by the learned trial Judge overruling the no case submission of learned counsel for the Appellants necessarily vitiates the trial?”

The right of the appellants to a fair hearing in this case implies a corresponding obligation in the Court that heard them, the obligation to act fairly and judicially and to reach a just decision by just means: Board of Education v. Rice (1911) A.C. 179; Kanda v. Government of Malaya (1962) A.C. 322. No general rule can be postulated to embrace all elements of unfairness. Different circumstances may in different cases amount to breach of the rule and principle of fair hearing. In this case the radical question is – Will the fact of a long ruling, over-ruling a No Case Submission, ipso facto, amount to denial of a fair hearing? The answer is obviously No. It is not the length of the Ruling, standing by itself alone, that will smear the trial with paint of unfairness. It is rather whether the trial Judge in his Ruling (be it short or long) has shown bias for the prosecution and against the accused; or has fettered his discretion, or has, as it were, decided the case against the accused person without even hearing his own side of the story. These are some of the factors that will call into question the fairness of the trial.

A no case submission is a submission that no prima facie case as required by Section 287(1) of the Criminal Procedure Act Cap. 43 of 1958 has been made out against the accused sufficiently to warrant his being called upon to make a defence. This submission may mean that even if all the prosecution witnesses are believed, yet still the prosecution is doomed to fail. This will arise when and where an essential ingredient of the offence charged had not been proved. If this is the aim and intendment of the submission, then counsel for the accused has no right to comment on the evidence which he has by necessary implication taken as true. At this stage the attack should not be on the veracity of the evidence led but on its sufficiency. If the evidence so far led is sufficient to cover all the essential ingredients and elements of the offence or offences charged (or any other offence or offences of which the court may convict on the charge – like lesser offences) then it will be futile to make a submission of no case in the first instance: Regina v. Coker AND OTHERS 20 N.L.R. 62.

Sometimes counsel makes a no case submission and indicates that he will be resting on his submission. If that is the case then he can freely address on the facts and the law. He can then deal with issues of veracity of witnesses and the insufficiency of the remaining credible witnesses to establish the offence or offences charged. A decision to discharge an accused person on the ground that no prima facie case has been made against him must thus be one which a calm and rational view of the evidence led considered as a whole would suggest: Gafari Ajidegba AND OTHERS v. I.G. Police 3 F.S.C. 65. It then follows that if the evidence of the prosecution has been so discredited as a result of effective cross-examination or is so patently and manifestly unreliable that no reasonable tribunal could safely convict on it – in such a case a submission of no case can also be made. It will thus be to the advantage of all If in making a submission of no case counsel knows exactly what he is attacking – sufficiency of the evidence or veracity of the witnesses. It is also necessary to indicate whether counsel wants to rest on his sub-mission. It is also necessary to indicate whether counsel wants to rest on his sub-mission. Such initial fore knowledge will surely limit the scope of the submission and prevent any long Ruling on an equally long submission of no case.

In this case the Ruling was of inordinate length – 15 paged ruling. So was the submission. Trial Judges ought to appreciate that unless counsel is resting on his submission of no case, the Court has heard only half the case – the prosecution’s case. It is thus wiser to be brief in the ruling and avoid any observations on the facts. That will come at the end of the case: See R. v. Ekanem (1950) 13 W.A.C.A. 108. Even in Ekanem’s case supra where the Ruling on a no case submission was long and where the trial Judge in his ruling “gave expression to the fact that he might have been disposed to agree with the submission made by counsel in certain respects but nevertheless held that on the totality of the evidence – that not only was there a case to answer but also that the prosecution established the guilt of the accused beyond reasonable doubt”, even there the appeal to the West African Court of Appeal was dismissed. But the Court (W.A.C.A.) observed at p.109 as follows:-

“It is, perhaps, unfortunate that considerable argument has arisen in the course of the hearing of this application by reason of the observation made by the learned trial Judge at the time at which he held that there was a case for the defence to answer. It is our opinion that as a rule when a submission that there is no case to answer is to be rejected by the trial Judge, his observation should be confined to the ruling, and that it is, as a rule, desirable that there should be no observation on the facts of the case at that stage.”

Strictly speaking, as a submission of no case should be limited to the law, there will be no harm 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 thus to be discussed then it is much wiser to be extremely short. In fact one single sentence is enough: “I over-rule the submission and will give my reasons in my judgment.” It is much more wiser to be brief: Bello v. The State (1966) 1 All N.L.R. 223 at p.227. 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. In Nsoedo’s case supra is not that it is a decision of the High Court which is not binding on this Court. The difficulty lies in the fact that it did not attend sufficiently to the real cause or reason for avoiding long ruling – namely the possibility of the trial Judge giving the unfair impression that he had already made up his mind on half of the evidence. An accused person in such a predicament will be entitled to feel that the Judge was not being fair to him, that he had already made up his mind against him without as much as hearing his explanation. That is the highly objectionable feature. And that is the aspect that dangerously encroaches on the realm of denial of a fair hearing to an accused person. The true test is whether the ordinary citizen looking at the trial as a whole would feel that justice had been not done: Isiyaku Mohammed v. Kano Native Authority (1968) 1 All N.L.R. 424 at p.426.

In the case now on appeal, I agree with Mr. Edokpayi learned Senior State Counsel that although the ruling was long yet there was nothing in it to indicate that the learned trial Judge’s discretion had been unduly fettered. In any event the learned trial Judge did not make any definite finding in his ruling which started with “if at the end it is proved.” This means that he knew that that was not the end: he knew that he had to hear the other side before coming to a decision. My answer to Issue No. 1 therefore is that there had been no breach of the rule relating to fair hearing merely because of the inordinate length of the Ruling on the No Case Sub-mission.

Issue No.2

Whether acquittal on the charge of stealing would necessarily and automatically imply an acquittal on the charge of Conspiracy to steal?

Conspiracy and the offence committed in pursuance thereof are two separate and distinct offences. An accused can be found guilty of the one and not guilty of the other or vice versa, depending on the evidence. Similarly, a discharge on the count of conspiracy must not involve a discharge on the substantive offence or

. vice versa. Much will depend on the evidence available and the surrounding circumstances of each particular case: Francis Tete Lawson AND AND OTHERS v. The State (1975) 4 S.C. 115 at p.123; R. v. Sweetland (1957) 42 Cr. App. R. 62 at p.66. In this there were evidence, compelling circumstantial evidence of conspiracy and stealing. The trial Judge so found. The Court of Appeal also found stealing but allowed the appeal on that count merely because there was not satisfactory proof of the actual amount stolen. Failure to prove the amount stolen has not in any way affected the guilt of the appellants on the crime of conspiracy. My answer to Question No. 2 is that the acquittal on the technical ground of insufficient proof of stealing did not in any way detract from the conviction on conspiracy. The appeal on this ground fails.

Issue No. 3

Whether the Court of Appeal was justified in affirming the conviction of the Appellants in respect of the charge of arson?

If anything was proved in this case, it was the offence of arson. The only issue of fact in dispute was the question of whether the burning of the bank was accidental – due to some faulty electric wiring or deliberate. The learned trial Judge made a devastating finding on this issue at p.164 of the record “that the fire which gutted the bank on the crucial date was deliberately caused by the two accused persons.” As long as the finding subsists there can be no question about the guilt of the appellants on the count charging them with arson.

For all the reasons given above and also for the fuller reasons in the lead judgment of my learned brother, Agbaje, J.S.C. which I now adopt as mine, the appeals of the two appellants fail and are hereby dismissed. The judgment and sentence of the Court below are both affirmed and confirmed.

NNAEMEKA-AGU,          J.S.C.: I have had the privilege of a preview of the judgment of my learned brother, Agbaje, J.S.C., just delivered. I agreed with him that the appeal has no merit.

The appellants who had been charged on three counts of conspiracy, stealing, and arson said to have been committed at the New Nigerian Bank, Orerokpe, Bendel State, in which they were both employed as the Manager and Accountant respectively, were found guilty on the three counts by Obi, J., on the 30th of June, 1983. They were each cautioned and discharged on the 1st count of conspiracy and sentenced to terms of imprisonment for 15 months and 5 years respectively on the 2nd and 3rd counts of stealing and arson. On appeal to the Court of Appeal, Benin Division that Court upheld the appeals in count 2 but dismissed the appeal of each appellant in counts 1 and 3. In the lead judgment of Ikwechegh, J.C.A., to which Omo-Ebo and Ajose- Adeogun, JJ.C.A. concurred, he said:

…………. I uphold the decision of the learned Judge as to counts 1 AND 3 and affirm the sentence passed thereon. I set aside the decision and sentence on count 2. And each appellant is yet to serve 5 years I.H.L.”

On further appeal to this Court the learned Senior Advocate on their behalf, Dr. Odje, filed 6 grounds of appeal. Counsel on both sides have agreed on the is-sues raised by those grounds and which have been set out in the lead judgment.

The first two issues raised on behalf of the appellants could be taken together. It has been contended on their behalf that the 15-page ruling on a “no case’ sub-mission was of inordinate length and not only reviewed the whole evidence but also considered legal authorities and the possibility of conviction for a lesser of-fence. The Judge was also said to have considered the contradictions in the evidence and drawn inferences from facts. Counsel pointed out that the Court of Appeal found a link between the ruling and the judgment and in fact described it as brilliant exercise over-done. He submitted that the Court of Appeal misunderstood the ratio in part of the dicta of Egbuna, J., in Nsoedo v. Police (1972) 2 E.C.S.L.R. 519. Then he submitted that as the appellants had not testified at that stage the ruling deprived them of a fair hearing.

The learned Senior State Counsel for the respondent, Mr. Edokpayi, submitted that a lengthy ruling on a “no case” submission does not ipso facto vitiate the ruling. He relied on the cases of: Odofin Bello v. The State (1966) 1 All N.L.R. 223, at p.227; and Akpan Ekanem v. The King 13 W.A.C.A. 108. He also submitted that so far as Ephraim Nsoedo v. Commissioner of Police (1972) 2 E.C.S.L.R. (Part 2) decided that the length of such a ruling alone was enough to vitiate the trial, it was rightly over-ruled by the Court of Appeal. He, however, submitted that the trial Judge merely made observations in the ruling and made no findings. The appellants he submitted, had a fair trial. He relied on Isiyaku Mohammed v. Kano N.A. (1968) 1 All N.L.R. 424, at p.426.

I agree that there is force in the argument of the learned counsel for the respondent that the length of a ruling does not, ipso facto, vitiate the ruling. I believe the law was correctly stated by the Supreme Court in Chief Odofin Bello v. The State (1966) 1 All N.L.R. 223, at p.227 where Ademola, C.J.N. observed as follows:

“After the prosecution had closed its case, submissions were made to the learned trial Judge that a prima facie case had not been made out to put the accused persons on their defence. In a ruling of inordinate length the learned Judge ruled against these submissions and called upon the accused persons for their defence. Whilst it is not the aim of the Court to discourage a Judge for discussing matters of interest in his judgment, we would like to warn against any ruling of inordinate length in a submission of no case to answer, as too much might be said, as was done in this case, which at the end of the case might fetter the Judge’s discretion. On the ruling made by the learned Judge in this case, we can appreciate his manifold difficulties later in discharging Lasekan, and 2nd accused. It is wiser to be brief and make no observations on the facts: See R. v. Ekanem 13 W.A.C.A. 108 at 109.”

In Ekanem’s Case (supra), Verity, C.J. in the West African Court of Appeal said at p.109.

“It is, perhaps, unfortunate that considerable argument has arisen in the course of the hearing of this application by reason of the observations made by the learned trial Judge at the time at which he held that there was a case for the defence to answer. It is our opinion that as a rule where a submission that there is no case to answer is to be rejected by the trial Judge, his observations should be confined to the ruling, and that it is, as a rule, desirable that there should be no observations on the facts of the case at that stage at all.”

It is clear from the observations in the two cases that although a trial court is advised to be brief, a trial does not become vitiated simply because the ruling is lengthy. In Ekanem’s Case, the appeal of the 1st accused was dismissed inspite of the inordinate length of the ruling.

In Bello’s Case the appeal was allowed on other grounds. As this is the case, it becomes unnecessary on the doctrine of precedent to consider what Nsoedo’s Case – a High Court decision – decided. If it decided the contrary the Court of Appeal in the instant case properly over-ruled it. But it did not. Where, however, the trial Court in giving its ruling not only made lengthy observations but also made definite findings or reached certain conclusions at that stage of the proceedings, a different situation arises in that such findings have been made or conclusions reached without hearing the accused person in his defence. An aspect of the rule i.e. audi alteram partem would have been involved. As the Supreme Court of British Guyana said in Demara Turf Club v. Phang (1961) reported in (1963) 26 M.L.R. 412, at p.416:

……… in the quest for justice under the Rule of Law there has been no more spontaneously acceptable idea than the principle embodied in the maxim: audi alteram partem.”

That principle is breached not only when there has been a hearing in the absence of a party, as was the case in Fleet Mortgage v. Lower Maisonette (1972) 1 W.L.R. 765 but also where although a party has been present all though the proceedings an order is made during the proceedings which adversely affects his interest but he was not heard before ft was made. It was applied to set aside the proceedings where a charge was dismissed before Justices and, without hearing the defendants as to whether they should be bound over, they were bound over: see Sheldon v. Bromfield J.J. (1973) 1 W.L.R. 1502. If, in this case, findings were made and conclusions reached on the evidence called by the prosecution before the appellants made their defence, it would have come within this aspect of the principle. And as Alexander, C.J.N. said in A.U. Deduwa AND AND OTHERS v. Emmanuel Amoma Okorodudu (1976) 9-10 S.C. 329, at pp. 346-347:

“A fair hearing must, of course, be a hearing that does not contravene the principles of natural justice. Evershed, M.R. said in Abbot v. Sullivan (1952) 1 K.B. 189, at p.195:

‘The principles of natural justice are easy to proclaim, but their precise extent is far less easy to define’.”

If we established in this appeal that this aspect of the audi alteram patem rule was breached, I would have had no hesitation to set aside the decision. But all that learned counsel succeeded in satisfying me on was that the learned Judge, as a result of the equally inordinately long “no case” submission of learned counsel for the appellants, made lengthy comments on the facts and the law without reaching any definite conclusions. Where he appeared to have reached what would have appeared to be conclusions, he predicated his observations of “if’ without really deciding that the situation existed. It is a truism that judicial decisions are not reached on “ifs.” I cannot think of a more apt description of what the learned trial Judge did in the ruling than the words of Ikwechegh, J.C.A., in the court below where he described i[ as “a brilliant exercise overdone.” Although the

This attitude is only desirable, in fact necessary when the submission is being up-held.

On the evidence presented and accepted by the learned trial Judge, his finding and convicting the appellants for arson cannot be faulted. The fact that appellants were cautioned and discharged on conspiracy charge, did not mean that they were not found guilty on that charge. It is only a way of being lenient to the appellants.

The appeal lacks merit and it is dismissed. The judgment of the Court of Appeal, Benin is hereby confirmed.

Appeal dismissed.