COMMISSIONER OF POLICE v OLUSEGUN ADENEGAN EMMANUEL OJUOLAPE SAMUEL ESO (APPEAL No. LD/44CA/1970) [1971] NGHC 4 (19 January 1971)

**CO****M****MI****S****S****I****ON****E****R** **O****F** **P****OL****I****C****E** **(****PR****O****S****E****CU****T****OR****/****A****P****PE****L****L****A****NT****)** **_v._** **OLUSEGU****N** **A****D****ENEGA****N** **EM****M****ANUE****L** **OJUO****L****AP****E** **SAMUE****L** **ES****O** **(AC****C****USED/****R****ESPON****D****ENTS****)** **(1971)** **All** **N.L.R.** **378** **Div****i****si****o****n:** High Court of Lagos **D****at****e** **o****f** **Judgment:** 19th January, 1971 **C****as****e** **Num****b****er:** APPEAL No. LD/44CA/1970 **Before:** Taylor C.J. Appeal from the Magistrate's Court. **_HELD_**** _:_** (1) A submission that there is no case to answer may properly be made and upheld: (_a_) When there has been no evidence to prove an essential element in the alleged offence. In this case, Counsel for the appellant had satisfactorily drawn the attention of the court to the evidence to show that the ingredients of the offence were deposed to by the witnesses for the prosecution, and no where in the ruling of the court below was it held that any ingredient of the offence was not proven. (_b_) When the evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. In this case, the trial Chief Magistrate said that the evidence before him in certain respect, not specifically mentioned, was contradictory; but the court could not say that that came within the above statement of the evidence being so discredited or so manifestly unreliable. (2) After a full consideration of this appeal the court was of the view that the ruling should be set aside and the case remitted to the court below to call on the defence to make a reply. **_P_**** _E_**** _R_** **_C_**** _URIAM_**** _:_** There are three accused and three counts before the court. On the first count only 2 accused are charged i.e. 1st and 3rd and similarly on the 2nd count. On the third count only the 1st accused is charged. On a submission of no case or at the end of a trial the case in respect of each count has to be considered separately as also the case against each accused. _A_ _ppea_ _l_ _allowe_ _d_ _:_ _Rul_ _i_ _n_ _g_ _s_ _e_ _t_ _asi_ _d_ _e_ _:_ _C_ _a_ _s_ _e_ _re_ _m_ _itte_ _d_ _t_ _o_ _C_ _o_ _ur_ _t_ _b_ _elo_ _w_ _f_ _o_ _r_ _d_ _e_ _fenc_ _e_ _t_ _o_ _m_ _a_ _k_ _e_ _a_ _reply_ _._ _Cas_ _e_ _referre_ _d_ _to_ _:_ _I_ _bezi_ _a_ _k_ _o_ _v_ _._ _C_ _o_ _mmiss_ _i_ _one_ _r_ _o_ _f_ _Polic_ _e_ _(1963)_ _1_ _ALL_ _N.L.R._ _61_. APPEAL from the Magistrate's Court. APPEAL No. LD/44CA/1970. _Ala_ _o_ for the Appellant _Aka-Bashorun_ for the Respondents. Taylor, C.J.:-Having heard both Counsel in this matter there can be no doubt that within the principle stated by the Supreme Court in _Ibeziako_ _v._ _Commissione_ _r_ _of_ _Police_ 1963 1 _All_ _N.L.R_. 61 _at_ 69 that the submission of no case to answer should have been overruled by the court below. I state the two matters for consideration again for the benefit of the Learned Chief Magistrate:- "A submission that there is no case to answer may properly be made and upheld: (_a_) When there has been no evidence to prove an essential element in the alleged offence." In the case on appeal Mr Alao, learned Counsel for the appellant has satisfactorily drawn my attention to the evidence to show that the ingredients of the offence were deposed to by the witnesses for the prosecution; and no-where in the ruling of the court below was it held that any ingredient of the offences was not proven. The second occasion on which a submission of no case can be successfully made is: (_b_) When the evidence adduced by the prosecution has been so _discredited_ as a result of cross examination or is _so_ _manifestly_ _unreliable_ that no _reasonable_ _tribunal_ could safely convict on it. I have underlined the words "discredited" and "so manifestly unreliable" and "reasonable tribunal" as being the important governing words in the passage. In the case on appeal the Trial Chief Magistrate said that the evidence before him in certain respect, not specifically mentioned, was contradictory, but I cannot say that that comes within the above statement of the evidence being so discredited or so manifestly unreliable. A and B may give evidence for the prosecution. Their evidence may be contradictory and yet a Court may find that A is telling the truth and B is guilty of falsehood. After full consideration of this appeal I am of the view that the ruling should be set aside and the case remitted to the court below to call on the defence to make a reply. If the defendants choose to give evidence then the case should be considered on its merits. If the defendants do not give evidence the court should re-assess the evidence before it and decide whether the offences are proven. A final point to which I would like to draw the attention of the court below, which under normal circumstances should be unnecessary, is that there are three accused and three counts before the court. On the first Count only 2 accused are charged i.e., 1st and 3rd and similarly on the 2nd Count. On the third Count only the 1st accused is charged. On a submission of no case or at the end of a trial the case in respect of each count has to be considered separately as also the case against each accused. The accused are to be taken into custody and returned to the Chief Magistrates Court for continuation of the trial. The question of bail will be dealt with by that Court. _Appe_ _a_ _l_ _all_ _o_ _wed_ _:_ _R_ _ulin_ _g_ _se_ _t_ _a_ _s_ _ide_ _:_ _Case_ _remitted_ _to_ _Court_ _below_ _for_ _defence_ _to_ _make_ _a_ _reply._