REGISTERED TRUSTEE OF SYNAGOGUE CHURCH OF ALL NATIONS v. STATE & ORS

CITATION: (2018) LPELR-46631(CA)

In the Court of Appeal In the Lagos Judicial Division Holden at Lagos

ON FRIDAY, 16TH NOVEMBER, 2018 Suit No: CA/L/408C/2018

Before Their Lordships:

BIOBELE ABRAHAM GEORGEWILL Justice, Court of Appeal JAMILU YAMMAMA TUKUR Justice, Court of Appeal TOBI EBIOWEI Justice, Court of Appeal

Between

THE REGISTERED TRUSTEE OF SYNAGOGUE CHURCH - Appellant(s) OF ALL NATIONS (2018) LPELR-46631(CA)And 1. THE STATE OF LAGOS 2. JADNY TRUST LTD. 3. HARD ROCK CONSTRUCTU ENGINEERING CO. - Respondent(s) 4. OLADELE OGUNDEJI 5. AKINBOLA FATISEGUN

RATIO DECIDENDI

1. ACTION - COMPETENCE OF AN ACTION/A SUIT: Importance of competency in an action "In law competence is the soul and spirit of adjudication, whether in civil or criminal proceedings in the Courts. See Madukolu V. Nkendilim (1962) 2 SCNLR 341. See also Efiok V. Govt. of Cross Rivers State (2011) All FWLR (Pt. 593) 1993 @ p. 2003."Per GEORGEWILL, J.C.A. (P. 23, Paras. C-D) - read in context 2. APPEAL - ISSUE(S) FOR DETERMINATION: Effect of issue(s) for determination not distilled from or related to ground(s) of appeal "Finally on the myriads of challenges to the validity of Count one is the issue of whether it is in the name of 'Lagos State' or 'State of Lagos' that the Appellant ought to be prosecuted before the Court below? It was brilliantly contended that the proper nomenclature is 'Lagos State' which is the State created on 27/5/1967 by virtue of the State (Creation and Transitional Provisions) Decree No 14 of 1967 as a component part of Nigeria and not the 'State of Lagos' which is unknown to law. This question or issue appears to be a very interesting one and truly very tempting to be considered head long on the merit in this appeal as alluring as it was presented by the Appellant, but the question is this: from which of the eight grounds of appeal in the amended notice of appeal is this issue arising from in this appeal? An appeal is not an all comer issues affairs but rather one founded on and inextricably tied to the grounds of appeal and issues properly arising there from. Thus, any issue not arising from a valid ground of appeal is both irrelevant and a mere meddlesome interloper or busy body and thus dead on arrival, indeed as dead as 'dodo'. ?I shall therefore, not dissipate any energy on an issue, though appearing so interesting and alluring but has no bearing to any of the grounds of appeal in this appeal and thus irrelevant. It is better such an issue is left for another day when it would validly arise in an appeal to be properly and competently considered and pronounced upon by the Court but until then this issue, being irrelevant in this appeal, is hereby discountenanced in its entirety as going to no issue at all."Per GEORGEWILL, J.C.A. (Pp. 32-34, Paras. D-A) - read in context

3. APPEAL - INTERFERENCE WITH FINDING(S) OF FACT(S): Instances when an appellate Court will not interfere with findings of fact of the lower Courts "The Court below was therefore right when it held that the 1st Respondent did make out a prima facie case against the Appellant on Count 1 necessitating its being called upon to enter upon its defense if it so wishes. In my finding there is nothing perverse or erroneous in the totality of the findings, conclusions and decision of the Court below in this regard. In law, an appellate Court has no business interfering with the correct findings of a trial Court even where the reason adduced and relied upon by the trial Court to arrive at the correct findings turns out to be wrong. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC., had pronounced with finality on this vexed issue, thus: "An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere...." See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46."Per GEORGEWILL, J.C.A. (Pp. 62-63, Paras. F-E) - read in context

4. CONSTITUTIONAL LAW - POWER(S) OF THE ATTORNEY GENERAL: Whether there are limitations on the power of the Attorney General I have considered the submission that the offence as laid in Count 1 is incompetent for failure to serve notice of contravention on the Appellant. In my finding, having considered the submissions of both counsel, Count 1 does not require any proof of service of notice of contravention to be competent as in my view such a contention would at best rather go to the issue of proof beyond reasonable doubt of the offence alleged under Section 75(1) of the Urban and Regional Planning and Development Law. It is thus an issue completely irrelevant at the stage of considering a no case submission. It must await a consideration of proof of the alleged offence beyond reasonable doubt, which can only arise at the conclusion of the substantive trial before the Court below. I cannot therefore, but agree with the submission of the learned DPP, since nothing by way of legislation and or settled principles of law in judicial authority has been shown to the contrary by the Appellant, that in law the constitutional powers of the Attorney General to institute

34

criminal proceedings cannot be hindered by any law or statute of the State. I hold therefore, that there is nothing in Section 75(1) of the Urban and Regional Planning Law amounting to any pre-condition that could impede the exercise of the powers of the Attorney General of Lagos State to institute criminal proceedings in the Court below against the Appellant. See Section 75 (1) of Urban and Regional Planning Development law of Lagos State. See also Olatunbosun V. State (2013) 17 NWLR (Pt. 1382) 167; Okpa V. State (2017) LPELR - 42205(SC) I have looked(2018) at the provisions of Section LPELR-46631(CA)75(1) of the Urban and Regional Planning and Development Law by which provision the offence charged under Count 1 was laid and I find that it was properly laid against the Appellant upon compliance with all due process and conditions precedent and the question of whether they have been proved beyond reasonable doubt or not or would succeed or not is not an issue for determination at the stage of a no case submission. All that the law requires is that an offence and its punishment must be prescribed in a written law. I therefore, see no merit in all the Appellant's submissions

35

that the offence charged under Count 1 is incompetent when on the contrary it was properly laid in line with the provisions of Section 75(1) of the Urban and Regional Planning and Development Law. Consequently, I hold that Count 1 is valid. See Mohammed V. The State (2012) LPELR - 9694 (CA). See also Attorney General of the Federation V. Clement Isong (1986) 1 QLRN 75.Per GEORGEWILL, J.C.A. (Pp. 34-36, Paras. A-B) - read in context

5. CRIMINAL LAW AND PROCEDURE - CHARGE(S): When objection for any formal defect on the face of a charge should be made and taken "Now, one of the major reforms of the new regime of the system of administration of criminal justice in Lagos State is the provision of the law limiting the time for raising objections bordering on validity of a charge or information before the Court. Thus, a Defendant may raise any objection to the validity of the charge or information at any time before Judgment provided however, any such objection, except as it relates to jurisdiction, shall only be considered along with the substantive issue and the ruling thereon made at the time of delivery of the Judgment. It follows therefore, that objections shall not be taken or entertained by the Court during trial on the ground that the charge is imperfect or erroneous, which is now intended to checkmate frivolous preliminary objections that had hitherto littered the paths of criminal trials with unwanted thorns. See Fabian Obodo V. The State (2016) LPELR - 356(CA)."Per GEORGEWILL, J.C.A. (Pp. 24-25, Paras. C-A) - read in context 6. CRIMINAL LAW AND PROCEDURE -OFFENCE UNKNOWN TO LAW:Whether an offence and its punishment must be prescribed by a written law "I have already reproduced the provision of Section 75(1) of the Urban and Regional Planning and Development Law, by which provision the offence charged under Count 1 is both defined and the punishment prescribed. That is all the law requires that an offence and its punishment must be prescribed by a written law. I therefore, see no merit in the Appellant's submissions that the offence charged under Count 1 is unknown to law as not being in any written provision and punishment prescribed by law. The offence charged under Count 1 is known to law and is an offence created, defined and punishment prescribed by Section 75(1) of the Urban and Regional Planning and Development Law. Consequently, I hold that Count 1 is valid. See Mohammed V. The State (2012) LPELR - 9694 (CA), where this Court had succinctly reiterated and held inter alia thus: "The usual practice in criminal matters is for the prosecutor to charge an accused under the penal or punishment section, not the definition section of the enactment - See Criminal Procedure of the Southern States of Nigeria by Nwadialo at page 75 as follows: "The statement of the offence is in short the name by which the offence is known... An offence may be defined in one section and declared punishable by a prescribed penalty in another section (e.g. robbery in Sections 401 and 402 of the Criminal Code respectively), in such a case, the usual practice is to refer to the penal section. The authority for this practice no doubt derives from the fact of its adoption in the models of charges given in the Second and Third Schedules of the Criminal Procedure Act and which models are by virtue of Section 463 good and sufficient in Law." See also Attorney General of the Federation V. Clement Isong (1986) 1 QLRN 75."Per GEORGEWILL, J.C.A. (Pp. 29-31, Paras. D-A) - read in context

7. CRIMINAL LAW AND PROCEDURE -CHARGE(S): Effect of error in stating the offences or the particulars required to be stated in the charge "I now come to the issue of the particulars of the offence as charged in Count 1. I have taken a second look at both the statement of the offence and the particulars as set out therein and it appears to me that all the constituent elements of the offence as created under Section 75(1) of the Urban and Regional Planning and Development Law are clearly stated therein and to the understanding of the Appellant, for which, at its arraignment, a plea of not guilty was entered for it. At any rate, today in Lagos State under and by virtue of Section 158 of the ACJL of Lagos State 2011, no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the Defendant was in fact misled by the error or omission. In the instant case not only was there no such allegation, the Appellant on arraignment on 30/11/2015 understood the charge and duly pleaded not guilty to the Count 1 with which it was jointly charged with the 2nd - 5th Respondents. In Ogbomor V. State (1985) 2 SC 289, the Supreme Court dismissed the appeal of the accused person, holding that the allegation of misdescription of the enactment was not fundamental. In that case, the offence of armed robbery was preferred against the accused person but he was charged pursuant to Robbery and Firearms Act, 1970 instead of the Firearms (Special Provisions) Act 1970. The Supreme Court rejected his argument of having been charged under a nonexistent law and held that the omission of the phrase "Special Provision" from the Act was not fundamental."Per GEORGEWILL, J.C.A. (Pp. 31-32, Paras. B-D) - read in context

(2018) LPELR-46631(CA) 8. CRIMINAL LAW AND PROCEDURE - NO CASE SUBMISSION: Position of the law on a no case submission "Having deeply pondered over all the myriads of other issues raised by the Appellant, I am minded to agree with the submission of the learned DPP that at the stage of consideration of a no case submission the issue of pre - condition not raised by way of objection to the charge at the time plea was taken is truly not an issue for consideration under a no case submission and at any rate by Section 75(1) of the Urban and Regional Planning and Development Law under which Count 1 was laid there is no provision of such condition precedent of notice of contravention. At this stage of consideration of the Appellant's no case submission the only real, proper and relevant issue is whether or not a prima facie case has been made out against the Appellant by the 1st Respondent and not whether or not the 1st Respondent has proved its case beyond reasonable doubt as would warrant at this stage the conviction of the Appellant. Having resolved all the myriads of issues challenging the validity of Count 1 and the jurisdiction of the Court below against the Appellant, I hold that Count 1 is valid and the Court below has the requisite jurisdiction to entertain it along with Counts 2 - 111 as laid in the information. Let me now proceed to consider the main thrust of this appeal, which is the ruling of the Court below overruling the Appellant's no case submission and calling on it to enter upon its defense. In considering a no case submission, the position of the law is that where at the close of the Prosecution's case, evidence has not been led in support of all or any of the essential elements of the offence with which a Defendant was charged, such a Defendant is said to have no case to answer and ought to be discharged at that stage without being called upon to enter upon his defense or make any explanation as that would amount to calling on the Defendant to prove his innocence. See Ibeziako V. COP. (1963) 1 All NLR 61 @ pp. 68 - 69, where the Supreme Court per Ademola, CJF., held as follows: "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; (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 convict on it." See also Dr. Olu Onagoruwa V. The State (1993) 7 NWLR (Pt. 303) 49; Ubanatu V. COP (2000) 1 SC. 31; Omisore V. State (2004) 28 WRN 106; Ekwunugo V. FRN (2008) 15 NWLR (Pt. 111) 630; Practice Direction of Lord Parker Lord Chief Justice of England in 1962 1 All ER 227. ?In our system of administration of criminal justice, a Defendant, who is constitutionally presumed innocent until the contrary is proved, carries no duty under the law to prove his innocence and therefore, where the Prosecution fails to make out any prima facie against him he is entitled to be discharged without much ado by the Court. This is also the position where at the close of the Prosecution's case, the evidence led by the Prosecution has become so discredited as a result of cross examination or is so manifestly unreliable that no reasonable Tribunal can safely convict on it. See Onagoruwa V. The State (1993) 7 NWLR (Pt. 303) 49. See also The State V. Bello (1989) CLRN 370. In law therefore, to make out the essential elements of an offence is to make out a prima facie case against a Defendant for which he shall be called upon to defend himself on the charge(s) against him. This simply implies that once at the close of the Prosecution's case it is found or shown that no prima facie case has been made out against the Defendant, he shall at that stage be discharged and acquitted as there would be no basis for proceeding any further with his trial. See Chianago V. The State (2002) 12 NWLR (Pt. 750) 228 @ p. 233. My lords, what then is a prima facie case in law? A prima facie case has been defined generally to mean such as would prevail until contradicted or overcome by other evidence. A prima facie case is thus a case in which there is evidence which suffices to support the allegation made in it and which will stand unless there is evidence to rebut the allegation. In Duru V. Nwosu (1989) 1 NWLR (Pt. 113) 24 @ p. 43, Nnamani JSC (God bless His soul) had succinctly defined prima facie thus: "It seems to me the simplest definition is that which says that there is ground for proceeding. In other words, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it, it suggests that the evidence produced so far indicates that there is something worth looking at." See also Black's Law Dictionary, 9th Edition @ p. 1159. See also Osborn's Concise Law Dictionary, 8th Edition by Rutherford & Bone @ p. 259. In Emedo V. State (2002) 15 NWLR (Pt. 789) 196, it was stated inter alia thus: "It is the judge's duty however, in a submission of no case to answer is made to discharge an accused where the evidence adduced by the prosecution does not disclose the necessary minimum evidence establishing the facts of the crime charged, in doing so, the Judge does not write a "Judgment", it is not the judge's job, at that stage, to weigh and evaluate evidence or decide who is telling the truth or who is lying and he is not to conclude that what the prosecution has adduce is unreliable....If a submission of no case is made, it is the judge's duty not only to consider whether there is some scintilla of evidence which in law would lead to conviction, but also whether it would be safe to convict on the evidence as it stand....A submission of no case to answer may properly be upheld: a; When there has been no evidence to prove an essential element in the alleged offence and 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. The decision to uphold or reject the submission should not depend upon whether the adjudicating tribunal would at that stage convict or acquit, but upon whether the evidence is such that a reasonable tribunal might(2018) convict...Although those considerationsLPELR-46631(CA) were expressed to be for the guidance of judges during criminal trials it is clear that they are of general applicability." And in Ikomi V. State (1986) 3 NWLR (Pt. 28) 340 it was reiterated inter alia thus: "Prima Facie, means on the face of it. The true meaning of a prima facie case has been explained by Hubbard, J, in his judgment in Regina V. Coker and others. (1952) 20 NLR 62 where he held that a submission that there is no case to answer meant that there was no evidence on which the Court could convict "even if the Court believed the evidence given." So also in Ugbede Ali V. State (2012) 10 NWLR (Pt.1309) @ p. 589, this Court had added its voice to this issue inter alia thus: "There is no doubt and the law is trite as enunciated by Ba'Aba, JCA, in Gwandu vs. Kebbi State (supra,); that trial Courts should not delve into the substantive case at interlocutory stage because if the Court is allowed to revisit the substantive issue at any stage of the trial, it would tantamount to the Judge sitting on appeal on his earlier decision on the substantive matter thereby outraging the sense of justice of an independent dispassionate observer sitting in Court."Per GEORGEWILL, J.C.A. (Pp. 36-42, Paras. C-E) - read in context

9. CRIMINAL LAW AND PROCEDURE - NO CASE SUBMISSION: When a submission of no case to answer will succeed "I agree with the apt submission of learned Senior Advocate for the Appellant that in law where the evidence led by the Prosecution has been badly discredited or deficient in the constituent essential elements of the offence charged, it will readily form the basis of a successful no case submission."Per GEORGEWILL, J.C.A. (Pp. 55-56, Paras. E-A) - read in context 10. CRIMINAL LAW AND PROCEDURE - NO CASE SUBMISSION: Need for Courts to be brief while ruling on a no case submission "My lords, it has long been the admonitions of the apex Court and this Court to trials Courts not to write lengthy rulings where in their view and or finding a prima facie case has been made out against a Defendant by the Prosecution. However, where a trial Court is of the view and or finding that a prima facie has not been made out against a Defendant by the Prosecution, then perhaps, its ruling may be a little, I say a little, longer, since it would then be required to demonstrate the reasoning leading to its finding that no prima facie case has been made out against the Defendant and thereby discharging him of the offences with which he had been charged. There is always the dilemma from the effect of a lengthy ruling in a no case submission, notwithstanding whether the no case submission is being upheld or overruled by the trial Court. I think even at this Court such caution must be exercised. This is so because where a Court writes a lengthy ruling on a no case submission, it may inadvertently pronounce on some of the substantive issues bordering on proof beyond reasonable doubt as would render the trial Court prejudicial to continue with the trial should its finding be overturned on appeal and the case is remitted to the trial Court. In such a situation, the case may have to start de - novo before another judge of the said trial Court. This, in my view, would clearly be against the spirit and intendment of the new regime of expeditious determination of criminal cases in the Courts as envisaged and engendered by the Administration of Criminal Justice Law of Lagos State 2011. The ruling of the Court below was short in relation to Count 1 with which the Appellant and the 2nd - 5th Respondents were jointly charged but yet it met the requirements of the law and the admonition of the apex Court as well as this Court that once a trial Court in a criminal trial has made up its mind and formed a well informed opinion on the totality of the evidence led by the Prosecution that a prima facie case has been made out against a Defendant, it need not write a lengthy ruling in order not to prejudge issues in the substantive trial that would require more mature considerations and deeper reflections in the final judgment. See Atoyebi V. FRN (2018) 5 NWLR (Pt. 1612) 350 @ p. 361, where the Supreme Court per Sanusi JSC., had reiterated so succinctly inter alia thus: "Again, in writing a ruling in no case submission, it is advisable that a trial Court should try as much as possible to be brief and should refrain from making any remarks or observations on the facts". It follows therefore, that it is not part of the duty of the Court below to at the stage of a consideration of a no case submission to weigh and evaluate evidence or to decide who is telling the truth or not and all such likes issues that have been urged upon this Court as part of the failings of the Court below in the ruling appealed against. I think the Court below was rather on the right course when it narrowed down its consideration to only the relevant issues for consideration in a no case submission, resisting the temptation, as it were, to make such a ruling either a final judgment or an all issues comers affairs, perhaps simply to please the Appellant's counsel on the myriads of issues canvassed before it. See Emedo V. State (2002)15 NWLR (Pt.739) 196. See also R. v. Baker (1999) 2 Cr. App. R. 335; Bello V. The State (1967) NMLR 1."Per GEORGEWILL, J.C.A. (Pp. 59-62, Paras. F-E) - read in context

11. CRIMINAL LAW AND PROCEDURE - NO CASE SUBMISSION: Circumstance where a no case submission could be overruled "once the prosecution witnesses has made out a case that calls for the explanation of the conduct of a Defendant in a criminal matter, the no case submission will fail as the prosecution will be said to have made out a prima facie case against the Defendant. See AJIBOYE & ANOR VS. STATE (1995) 8 NWLR (PT 414) 408; ABACHA VS. STATE (2002) 3 SC 53; OKO VS. STATE (2017) LPELR-4226 9SC) 58; ATOYEBI VS. FRN (2017) LPELR- 4383 (SC)."Per EBIOWEI, J.C.A. (P. 65, Paras. C-E) - read in context

12. EVIDENCE - CONTRADICTION IN EVIDENCE: When will a piece of evidence contradict another; nature of contradiction in evidence that will vitiate proceedings "Yet, it is also true that in law for contradictions to be countenanced it must amount to material contradiction. In Onubogu V. The State (1974)9 SC 1 the Supreme Court Per Fatayi - Williams JSC (as he then was) had succinctly explained the rationale for the position of the law inter alia thus: "Where one witness called by the prosecution in another case contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation such as showing that the witness is hostile, before they can ask the Court to reject the testimony of one witness in preference for the evidence of the discredited witness. It is not competent for the prosecution which called them to pick and choose between them. They cannot without showing clearly that one is hostile witness, discredit one and credit the other. See (Summer & Leivesly v. Brown & Co (1909), 25, TLR 745. We also think that even the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial judge, as was the case here to provide the explanation. One of the witnesses should furnish the explanation and thus give the defence the opportunity of testing, by cross-examination, the validity of the preferred explanation." Also in Bassey V. The State (2012) All FWLR (Pt. 633) 1816 @ p. 1832, what amounts to substantial contradiction in evidence(2018) was explained thus: LPELR-46631(CA) "One evidence contradicts another evidence when it says the opposite of what the other evidence has stated and not when there is just minor discrepancy between them. Two pieces of evidence contradicts one another when they are themselves inconsistent on material facts." See also Godwin Igabele II V. The State (2007) 2 NCC 125; Odi V. Iyala (2004) 8 NWLR (Pt. 875) 283; Elewuju V. Onisaodu (2000) 3 NWLR (Pt.647) 95."Per GEORGEWILL, J.C.A. (Pp. 56-57, Paras. B-E) - read in context

13. EVIDENCE - PRIMA FACIE CASE: Whether the establishment of a prima facie case is the same as proof beyond reasonable doubt "Based on the findings of facts, applicable principles of law and the reasons adduced above therefore, I hold firmly that the 1st Respondent placed before the Court below sufficient materials in form of relevant evidence in line with the offence charged in Count 1 amounting to a prima facie case against the Appellant to warrant its being called upon to enter upon its defense to the criminal allegation made against it by the 1st Respondent and far be it from the correct position of the law that at the stage of the close of the Prosecution's case, the Prosecution was or should be expected to prove the alleged offence against the Appellant beyond reasonable doubt. In law, all that was required of the Prosecution at the stage of the close of its case is the establishment of a prima facie case against the Appellant, nothing more, nothing less and nothing else. See Ajiboye V. State (1995) 8 NWLR (Pt. 414) 408. See also Ubanatu V. COP (2001) 22 ACLR 312 @ p. 335. This is why where even if prima facie has been made out against a Defendant, he may yet at the end of the trial still be discharged and acquitted if the Prosecution failed to prove its case against him beyond reasonable doubt as required by law, notwithstanding the fact that at the close of its case it made out a prima facie case against him. In other words, prima facie case is not synonymous with proof beyond reasonable doubt. See Ubanatu V. COP (2001) 22 ACLR 312 @ p. 335. See also Ajidagba V. IGP (1958) 3 FSC 5 @ p. 6; Ajiboye V. The State (1995) 8 NWLR (Pt. 414) 408."Per GEORGEWILL, J.C.A. (Pp. 58-59, Paras. D-E) - read in context 14. JURISDICTION - CRIMINAL JURISDICTION: Position of the law where a non-indictable offence triable by a Magistrate Court is joined with an indictable offence triable by a State High Court in an information/charge "I have considered the submission that the offence as laid in Count 1 being a simple offence, which I agree it is, is outside the jurisdictional competence of the Court below being the High Court of Lagos State and should rather have been commenced before the Magistrate Court of Lagos State. I have looked calmly at the entire information containing Counts 1 - 111 and it is clear that while Count 1, on which both the Appellant and the 2nd - 5th Respondents were jointly charged, is a simple offence, Counts 2 - 111 are serious indictable offences of manslaughter with which the 2nd - 5th Respondents were jointly charged. ?In law, once a non-indictable offence, which ordinarily should be a matter for summary trial, is joined with an indictable offence in an information then the simple or non-indictable would be valid before the Court trying the offences on the Information, notwithstanding the fact that ordinarily a non-indictable offence, such as simple offence, may not on its own alone be the subject of trial by information. I hold therefore, by the joining of Count 1 with Counts 2 - 111 in the information on which the Appellant is being jointly tried with the 2nd - 5th Respondents before the Court below, the High Court of Lagos is conferred with the requisite jurisdiction to entertain same. In arriving at the above conclusion, I have averted my mind to the enormous constitutional powers conferred on the High Court of a State as regards criminal trials generally, when it was succinctly provided in Section 272 (1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) thus: "Subject to the provision of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any criminal proceedings involving or relating to any penalty forfeiture, punishment or other liability in respect of an offence committed by any person." In Aluko V. DPP (1963) All NIR 404, the DPP of Western Nigeria had lodged a complaint in the High Court against an accused person and at the conclusion of the trial the accused was convicted of publishing seditious libel contrary to Section 47(I) (c) of the Criminal Code of Western Nigeria for which he was liable to two years imprisonment or a fine of One Hundred pounds or both. This was clearly a non-indictable offence tried to conclusion by the High Court. On appeal against his conviction on the ground that the Criminal Procedure Ordinance, similar to the contention in the instant appeal by the Appellant, did not provide for trial of the offence of seditious libel alone before the High Court and therefore, the High Court had no jurisdiction to try such offence alone except in addition to other indictable offences, the appeal was dismissed by the Supreme Court, holding amongst others, that the High Court of Western Nigeria has jurisdiction to try any offence whether triable by a Magistrate or not. ?I have taken the pain to search through the entire provisions of the ACJL of Lagos State 2011, since the Appellant's counsel did not cite any such particular Section, that invalidates Count 1 before the Court below, charged along with other indictable offences as grave as manslaughter arising from the same set of transactions, and conferred exclusive jurisdiction on the Magistrate Court to the exclusion of the High Court. In my view, and I so hold, any crime triable by the Magistrate Court of Lagos State is triable by the High Court of Lagos State even if by way of Summary trial, more so where it is charged along with other grave indictable offence. To do otherwise in the circumstances of the facts of this case would mean that the State has to charge the Appellant and the 2nd - 5th Respondents on Count 1 before the Magistrate Court while at the same time charging the 2nd - 5th Respondents before the High Court over offences that arose out of the same set of transactions. ?The above scenario would not only be tardy but also cumbersome both on the Defendants as well as the State to run two parallel trials in two parallel Courts on offences arising from the same set of transactions and for which the same set of witnesses are to be presented by the State before the Court. At any rate since the Magistrate Court would clearly have no jurisdiction over the indictable offence of manslaughter charged in Counts 2 - 111, the law would lean more in favor of the Court that has the powers over the principal issues involved in the case to be the Court with the requisite jurisdiction to hear such a case. In the instant case, that Court is the High Court of Lagos State that has the jurisdiction over the principal issues of manslaughter also arising from the same set of transactions that gave rise to the charge in Count 1 rather than the Magistrate Court of Lagos State. For the analogous position in civil proceedings; See Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. See also Grace Jack V. University of Agriculture Makurdi (2004) 5 NWLR (Pt. 865) 208 @ p. 213."Per GEORGEWILL, J.C.A. (Pp. 25-29, Paras. C-D) - read in context

(2018) LPELR-46631(CA) BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Ruling of the High Court of Lagos State, Ikeja Judicial Division; Coram: L. B. Lawal - Akapo J., in Charge No. ID/1759C/2015: The State of Lagos V. The Registered Trustees of Synagogue Church of All Nations & Ors., delivered on 8/3/2018, in which the Appellant’s no case submission was refused and dismissed.

The Appellant, the 1st Defendant at the Court below, was dissatisfied with the said ruling of the Court below, had filed its original notice of appeal on 22/3/2018 on six grounds. See pages 571 - 573 of the record of appeal. The records of appeal were duly transmitted to this Court. Subsequently, the Appellant sought and obtained the leave of this Court to amend its notice of appeal and the amended notice of appeal on eight grounds filed on 18/4/2018 was deemed as properly filed on 21/6/2018. The Appellant’s amended brief was settled by Lateef O. Fagbemi SAN and filed on(2018) 18/4/2018 LPELR-46631(CA) but was deemed properly filed on 21/6/2018. The 1st Respondent’s brief was settled by Mrs. T. K. Shita - Bey,

1 learned DPP, Ministry of Justice, Lagos State was filed on 13/9/2018 but was deemed properly filed on 8/11/2018. The 2nd - 5th Respondents did not file any brief.

​At the hearing of this appeal on 8/11/2018, H. O. Afolabi SAN learned Senior Advocate for the Appellant, appearing with O. A. Diyan Esq., A. Ayandipo Esq., and O. Arasi Esq., adopted the Appellant’s brief as their arguments in support of the appeal and urged the Court to allow the appeal, set aside the ruling of the Court below and discharge the Appellant. On their part, Mrs. T. K. Shita - Bey, learned DPP, Ministry of Lagos Justice, Lagos State for the 1st Respondent, appearing with Y. D. Oshoala Esq., Director, A. Haroun Esq., Assistant Director, Y. A. Sule Esq., PSC., and Mrs. Bola Akinsete, PSC, adopted the 1st Respondent’s brief as their arguments in opposition to the appeal and urged the Court to dismiss the appeal and affirm the ruling of the Court below. Chief E. L. Akpofure SAN, learned Senior Advocate for the 2nd Respondent, appearing with Chief Edwin(2018) Okonkwo, LPELR-46631(CA) John Okoriko Esq., and Ayodeji Olabinwonnu Esq., having not filed any brief, did not adopt any. Mrs. Titilola Akinlawon SAN, learned Senior

2 Advocate for the 3rd & 5th Respondents, appearing with Mrs. Shade Adebayo, James Aigbe Esq., Remi Adebayo Esq., and Ayomide Ogunsanwo Esq, having not filed any brief, did not adopt any. Olalekan Ojo SAN, learned Senior Advocate for the 4th Respondent, appearing with R.M. Bature Esq., and Adebayo Adedokun Esq., having not filed any brief, did not adopt any.

By an Information filed on 11/9/2015, the Appellant was charged along with the 2nd – 5th Respondents in Count 1 with failure to obtain approved building plan for the construction of the building belonging to SCOAN which collapsed on 12/9/2014 contrary to Section 75 of Urban and Regional Planning and Development Law, No. 31, Laws of Lagos State 2010. The 2nd - 5th Respondents were each and jointly charged in Counts 2 – 111 with involuntary manslaughter of 110 named persons on 12/9/2014 in the collapsed building of the SCOAN at Ikotun/Egbe, Lagos State contrary to Section 222 of Criminal Code, Law No. 11, Laws(2018) of Lagos State LPELR-46631(CA) 2011. See pages 9 – 49 in Vol. I of the records of appeal.

BRIEF STATEMENT OF FACTS According to the case as put forward by the 1st Respondent

3 as Prosecution before the Court below through its witnesses, PW1, Engr. (Dr.) Victor Oyenuga; PW2, Dr. Olutoyin Ayinde; PW3, Mr. Adebayo Musiliu; PW4, Mr. Adesola Babatunde Basir; PW5, Prof. John Oladapo Obafunwa; PW6, Rafiq Olubukola Arogunjo; PW7, Engr. Fadayomi Oreoluwa and PW8, Mr. Gubbi Linus and the tendered several documents numbering 18 but admitted in evidence as Exhibits P1 - P14, on 12/9/2014, a 7 - storey building of the Appellant situate at Ikotun/Egbe, Lagos suddenly collapsed and a good number of people, numbering about 116 persons lost their lives and several others numbering about 131 persons were injured. The Lagos State Government immediately set up a Coroner Inquest to look into the immediate and remote causes of the collapse. The Coroner later delivered his verdict and recommended criminal trial against the Appellant and the others for the construction of the collapsed building. Subsequently, on 30/11/2015, the Appellant, being the owner of the collapsed building as well as four others was arraigned(2018) before the LPELR-46631(CA) Court below on a 111 Count Charge. They each pleaded not guilty. The Appellant was only charged in Count

4 one, alleging failure to obtain approved building plan for the construction of the building which collapsed on 12/9/2014 contrary to Section 75 of Urban and Regional Planning and Development Law, No. 31, Laws of Lagos State 2010.

At the close of the case for the 1st Respondent on 13/7/2017, the Court below adjourned the case to 5/10/2017 for defense. However, the Appellant made an application by way of no case submission contending that the Appellant has no case to answer. In other words, that the 1st Respondent failed to make out any prima facie case against the Appellant to warrant the Appellant being called upon to enter its defense. The parties filed and exchanged written addresses, which were duly adopted on 13/7/2017 and on 8/3/2018, the Court below in its ruling overruled the Appellant’s no case admission and called upon it to enter upon its defense, hence the appeal to this Court by the Appellant. See pages 222 - 229, 231 - 245, 246 - 248, 250 - 253, 255(2018) - 259, 261 -LPELR-46631(CA) 264, 266 – 282 and 283 - 293 in Vol. I of the record of appeal. See also 476 - 483 and 484 - 570 in Vol. II of the record of appeal.

5 ISSUES FOR DETERMINATION. In the Appellant’s amended brief, three issues were distilled as arising for determination from the eight grounds of appeal, namely:

1. Whether the Court below is not in error to have assumed jurisdiction over Count 1 on the information being a simple offence, jurisdiction of which resides only in Magistrate Court of Lagos State and whether in any event the information filed by an entity not known to law is not a nullity? (Distilled from grounds 7 & 8) 2. Whether by the community reading of Section 75, 28(i), 28(6) and 38 of the Urban and Regional Planning and Development Law No. 3 Law of Lagos State 2010 failure to obtain building approval constitutes an offence for which the Appellant could be called upon to enter a defense? (Distilled from grounds 1& 5) 3. Having regard to the totality of evidence adduced by PW2(2018) at the Court LPELR-46631(CA) below and the ensuing cross examination of the said witness whether the Court below was not in error to have dismissed application for no case submission filed by the Appellant? (Distilled from grounds 2, 3, 4 and 6)

In the 1st Respondent’s brief, two issues were distilled as arising for determination in this appeal, namely:

6 1. Whether upon a calm and dispassionate view and considering the overwhelming nature and character of the prosecutorial evidence, the Court below was right to dismiss the Appellant’s submission of a no case? 2. If the answer to issue one is yes, then whether a prima - facie case has not been established against the Appellant to make some explanations?

I have given due consideration to the facts and circumstances of this case as can be seen in the two volumes of the records of appeal as touching on the offence in Count 1 with which the Appellant was charged and the evidence, both oral and documentary, as led by the 1st Respondent at the trial. I have also calmly reviewed the submissions of learned counsel in their respective briefs in the light of the ruling of the Court below dismissing the Appellant’s no case submission and thereby calling upon the Appellant to enter upon its defence to the charge against it,(2018) the 1st Respondent LPELR-46631(CA) having, in the findings of the Court below, made out a prima facie case against the Appellant.

​Upon an anxious consideration of all the above, I am of the

7 view that the only apt issue for determination in this appeal, considering the stage of the proceedings before the Court below and the nature of the application by the Appellant leading to this appeal, is issue three as distilled in the Appellant’s brief, but slightly modified, a consideration of which, in my view, would involve the consideration of the other two issues as distilled in the Appellant’s amended brief as well as issues one and two as distilled in the 1st Respondent’s brief. Consequently, issue three in the Appellant’s amended brief is hereby adopted and set down as the sole issue for determination in this appeal.

SOLE ISSUE Having regard to the totality of evidence adduced by the Prosecution at the Court below and the ensuing cross examination of the said witnesses whether the Court below was not in error to have dismissed the application for no case submission filed by the Appellant?(2018) LPELR-46631(CA)

APPELLANT’S COUNSEL SUBMISSIONS On his issue one, learned Senior Advocate for the Appellant had submitted that under the Administration of Criminal Justice Law of Lagos State 2011, the High Court of Lagos State has no jurisdiction to entertain a

8 simple offence by information, even if the information contained other indictable offence (s) and contended that by the combined effect of Sections 69 and 77 (i) (b) (i) of the Administration of Criminal Justice Law of Lagos State, 2011 it is clear that criminal proceedings on information can only be filed in respect of offences triable on information and therefore, the filing of an information by the Attorney General in the High Court of Lagos State is regulated by Section 77(I)(b)(i) of ACJL subject to Section 69 and urged the Court to hold that from this the commencement of criminal proceeding in the High Court on information is only permissible where the offence is triable on information. Learned Senior Advocate referred to Section 371 of ACJL 2011.

It was further submitted that from the foregoing, any offence punishable by imprisonment for a term less than two years cannot be tried on information at the High Court, including simple offences which are offences other than felony and(2018) misdemeanor LPELR-46631(CA) and contended it is the Magistrate Court in Lagos that has the exclusive jurisdiction to try simple offences as in Count one and urged the Court to hold

9 that the Count one with which the Appellant was charged is not an offence triable by means of an information before the High Court and to strike out Count one for being incompetent before the Court below and to discharge the Appellant. Learned Senior Advocate referred to Section 75(1) of the Urban and Regional Planning and Development Law; Sections 72, 77 & 340(1) of the Criminal Procedure Law of Lagos State and Sections 69 & 77 of the ACJL 2011; J.A. Agaba: ‘Practical approach to Criminal Litigation in Nigeria’ 3rd Edition @ pp. 148 – 149; Section 252 of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Sections 28(2), (3) & 29 (6) of the Magistrate Court Law 2009.

​It was also submitted that the ACJL 2011 the commencement of criminal proceedings at the High Court of Lagos State on information is no longer subject to the practice in England and contended that since non - indictable offences, like simple offences as in Count one with which(2018) the Appellant LPELR-46631(CA) was charged, are not expressly permitted to be prosecuted in the Lagos State High Court, then non - indictable offences cannot be joined with

10 offences triable on information or indictable offences as it was the case under the repealed CPL and urged the Court to so hold and to strike out Count one for being incompetent. Learned Senior Advocate relied on Leadway

Assurance Co. Ltd. V. JUC Ltd. (2005) 5 NWLR (Pt. 919) 539 @ p. 556.

It was also further submitted that in law there is a world of difference between the name “Lagos State” which is a component part of Nigeria and “State of Lagos” which is ambiguous and capable of different interpretation and that what was created on 27/5/1967 vide the State (Creation and Transitional Provisions) Decree No 14 of 1967 was Lagos State and not State of Lagos and contended that it is a great Constitutional flaw to initiate criminal proceeding in the name of “State of Lagos” since the Constitution of the Federal Republic of Nigeria 1999 (as amended) did not donate Prosecutorial power either to the State of Lagos or to the Attorney General of the State of Lagos but rather to Lagos State(2018) and urged LPELR-46631(CA) the Court to hold that the charge as it is filed against the Appellant is therefore invalid and thus

11 robbed the Court below of the jurisdiction to it. Learned Senior Advocate relied on the unreported judgment of the High Court of Osun State in Suit No: HIL/M47/2016:

Kanmi Ajibola V. Governor of Osun State & 2 Ors, delivered on 14/12/2017.

On his issue two, learned Senior Advocate for the Appellant had submitted that while the main kernel of Count one with which the Appellant is charged is failure to obtain building approval contrary to Section 75 of the Urban and Regional Planning and Development Law, No 3 of Lagos State 2010, yet the Prosecution did not make reference to any particular subsection under which the Appellant was charged and contended that the implication of this lapse is that the Appellant is left to wonder and imagine under which particular subsection she was charged since none of the nine subsections of Section 75 criminalizes failure to obtain building approval and urged the Court to hold that none of Sections 28(1), 28(6) and perhaps 38 of the said law imposes(2018) a duty LPELR-46631(CA) on a private developer to obtain building approval, being merely directory and therefore, none created any offence known to law and thereby rendered Count one invalid.

12 Learned Senior Advocate referred to Section 36 (12) of the Constitution of Nigeria 1999 (as amended) and relied on

NPA Supernuation Fund V. Fasel Services Ltd. (2002) FWLR (Pt. 97) 719 @ p. 736; NECO V. Sunday Ojo Tokode (2010) LPELR - 9121 (CA) 23; George V. FRN (2013) LPELR - 21895(SC); Abidoye V. FRN (2014) All FWLR (Pt.722) 1624 @ p. 1649.

It was conceded that in law an offence may be defined in one Section but the Section providing the punishment to the offence may be different but submitted that in such a situation the law is that a Defendant may be charged under the punishment section and urged the Court to hold that the permissible practice now is that the Defendant should be charged by incorporating the two sections into the charge so as not to leave the Defendant in any doubt as to the information preferred against him as an offender.

Learned Senior Advocate relied on Attorney General of the Federation V. Clement Isong (1986) 1 QLRN 75; Timothy(2018) V. FRN (2008) LPELR-46631(CA) All FWLR (Pt. 402) 1136 @ pp. 1152 – 1153; Harb V. FRN (2008) All FWLR (Pt. 430) 705.

​It was further submitted that from the evidence the collapsed building was still under construction and contended that for

13 the offence under Section 75 to crystallize, the prosecution must comply with the provisions of Sections 59 - 70 of the law otherwise the action will be incompetent and amount to non - compliance with a statutory precondition the effect of which makes the action incompetent and urged the Court to hold that Count one was incompetent having been filed without compliance with condition precedent to its validity.

Learned Senior Advocate relied on Efiok V. Govt. of Cross

Rivers State (2011) All FWLR (Pt. 593) 1993 @ p. 2003; Madukolu V. Nkemdilim (1962) 2 SCNLR 341; IAL V. 361 Incorporated Oil (Nig.) Plc (1999) 5 NWLR (Pt. 601) 9; Nobis - Elendu V. INEC (2015) All FWLR (Pt. 812) 1505 @ pp. 1528 – 1529; Rabiu V. Kano State (1980) 8 - 11 SC 130; AG. LAGOS State V. AG. Federation (2014) All FWLR (Pt. 740) 1296; Fawehinmi V. AG. Lagos State (No.1)(1989) 3 NWLR (Pt.112) 707; Ugwu V. State (2013) All FWLR (Pt.669)

1177 @ p. 1187; AG. Western Region V. CFAO (1958) WRNLR 6; CF: Ogbomor V. State (1985) 2 SC 289; Ezeze V.(2018) State (2004] LPELR-46631(CA) 14 NWLR (Pt. 894) 491; FRN V. Ekwunugo (2007) 3 NWLR (Pt. 1021) 209 @ p. 218; Atutu & Ors V. State (2013) LPELR – 22161(CA);

14 Ekwunugo V. FRN (2008) 10 MJSC 79; Suberu V. State (2010) 8 NWLR (Pt. 1197) 586.

​On his issue three, learned Senior Advocate for the Appellant had submitted that the Court below fell into serious error by dismissing the Appellant’s application for no case submission in that even though it appreciated the guiding principle in a No Case submission, yet it detracted from the principle when all it did was to look at the evidence of the witnesses without subjecting the evidence to cross examination and contended that a good look at the evidence of PW1 and PW2 would reveal that it bears no reference to Count one at all and urged the Court to hold that the Court was in grave error and arrived at a perverse finding when it held that the evidence of PW1 - PW5 and PW7 - PW8, which were completely discredited and contradictory linked the Appellant in any way to Count one and to set aside such perverse findings, allow the appeal and discharge the Appellant since in law to call upon the Appellant(2018) to enter its LPELR-46631(CA) defense when no prima facie case has been out against it by the Prosecution would mean requiring it to prove its innocence.

15 Learned Senior Advocate referred to Sections 1, 2, 7(b) and 13 of the Evidence Act 2011; 286 of the Criminal Procedure Act Cap 41, Laws of the Federation of Nigeria, 2004 and relied on Maduka & Ors V. Anyadiegwu (2014) LPELR -

23751 (CA) @ pp. 26 – 27; Ironbar & Ors V. Federal Mortgage Finance (2008) LPELR – 37; Agbahomovo V. Eduyegbe (1999) 3 NWLR (Pt.594) 170; FRN V. Ekwenugo (2007) 3 NWLR (Pt. 1021) 200 @ pp. 209 - 218; Ajidagba & Ors. V. IGP (1958) 3 FSC 5; Mohammed V. The State (2007) NWLR (Pt. 1032) 150 @ pp. 152 – 163; Sunday Chijioke Agbo & Ors V. State (2013) LPELR – 20388 (SC); Ibrahim & Ors V. COP (2010) LPELR - 8984(CA); Onagoruwa V. State (1993) 7 NWLR (Pt. 303) 49 @ p. 82; Ohuka V. The State (No.2) (1988) 4 NWLR (Pt. 86) 36.

1ST RESPONDENT’S COUNSEL SUBMISSIONS On her issue one, learned Director of Public Prosecution, Lagos State had submitted that the prosecutorial powers of the Hon(2018) Attorney GeneralLPELR-46631(CA) of Lagos State to institute or undertake any criminal matter is constitutionally provided for and the offence under which the Appellant is charged forms the same transaction as that of the 2nd - 5th Respondents

16 and contended that in law in the circumstances revealed by the facts of this case it was permissible to charge all the Defendants together as was properly done before the Court below. Learned DPP referred to Section 151 of the Administration of Criminal Justice Law of Lagos State, 2011 and relied on Ajudua V. FRN (2018) LPELR -

43923(CA).

It was further submitted that the jurisdiction of the High Court of Lagos State is exclusive as it relates to criminal proceedings and contended that the submission by the Appellant that the Court below lacks the jurisdiction to try the offence in which the Appellant is charged is misplaced and unfounded, coupled with the failure of the Appellant’s counsel to rely on any authority or legislation which expressly precludes the High Court from trying indictable offences especially as it relates to a joint trial of an accused person and urged the Court to discountenance it. Learned DPP referred to Section 272 (1) of the Constitution of Federal Republic(2018) of Nigeria,LPELR-46631(CA) 1999 (as amended) and relied on Adoki V. COP (2013) LPELR - 21191(CA); Adisa V.

Oyinwola (2000) 10 WLR (Pt. 674) 116.

17 It was further submitted that Count one is properly laid under Section 75 of the Urban and Regional Planning Law which created the offence emanating from failure to comply with the relevant provisions and the elements of which offence was satisfied by the evidence of PW2, who stated emphatically that the records at the disposal of the Government of Lagos State showed that there was no approval on the building that collapsed and led to the death of a over one hundred persons and contended that the Count one to which the Appellant as well as the 2nd - 5th Respondents were charged, they were not misled as they clearly understood and pleaded not guilty to it and urged the Court to hold that in law no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by error or omission. Learned

DPP relied on Mohammed V. The State (2012) LPELR-

9694 (CA). (2018) LPELR-46631(CA)

​It was also submitted that in law the parameters for a no - case submission are very narrow in that at that stage the Court is concerned with only the prosecutorial

18 evidence alone as to whether or not it is sufficient to require an answer from the defense and contended that a consideration of and decision on a no - case submission does not include ascribing probative value to the prosecutorial evidence and urged the Court to hold that the Court below was right when upon an appraisal of the evidence it held that the 1st Respondent had led sufficient evidence and disclosed a prima facie case against the Appellant on Count one for which it ought to enter upon its defense. Learned DPP referred to Section 239 of the ACJL and relied onUbanatu V. COP (2000) 2 NWLR (Pt. 643)

141; Aituma V. State (2006) 10 NWLR (Pt. 989) 452; Abru V. State (2011) 17 NWLR (Pt. 1275) 1; Igabele V. State (2004) 15 NWLR (Pt. 896) pg. 314; Emedo V. State (2002) 15 NWLR (Pt. 789) 196; Aituma V. State (2006) 5 NWLR (Pt. 1028) 466; Suleiman V. State (2009) 15 NWLR (Pt. 1164) 258; Ibeziako V. COP

(1963) 1 SCNLR P. 99; Suberu V. State (2010) 1 NWLR (Pt. 1176) 494. (2018) LPELR-46631(CA)

It was also further submitted that a decision on a no case submission need not be lengthy but should be brief, particularly where it is to be overruled, since in a no - case

19 submission, the Court is not determining the guilt or innocence of the Appellant in this case in that the trial of the case has not yet been concluded for the issue of proof beyond reasonable doubt or the innocence of the Defendant to be determined and urged the Court to hold that the Court below rightly approached the issue of no case in the proper manner allowed by law and came to the correct decision that the Appellant has a case to answer and to dismiss the appeal and affirm the ruling of the Court below. Learned DPP referred to Section 239 of ACJL 2011 and relied onFRN V. Martins (Supra); Abru V. State

(Supra); Suberu V. State (Supra); Aituma V. State (Supra); Igabele V. State (Supra); Emedo V. State (Supra); Suleiman V. State (Supra); Ubanatu V. COP (Supra), Ibeziako V. COP (Supra); State v. Ajuluchukwu (Supra); Ikomi V. State (1986) 3 NWLR (Pt. 28) 340; Chianugo V. State (2002) 2 NWLR (Pt.

750) 225; Tango V. COP (2007) 12 NWLR (Pt. 1049) 525; Shatta V. FRN (2009) 10 NWLR (Pt. 1149) 403; FRN V.(2018) Martins (2012)LPELR-46631(CA) 14 NWLR (Pt. 1320) 287; Ohuka V. The State (No. 2) (1988) 4 NWLR (Pt. 86) 36.

It was further submitted that a look at the evidence led by

20 the 1st Respondent through PW1 - PW8 as was done by the Court below reveal that there were sufficient evidence corroborated by other pieces of evidence from these witnesses linking the Appellant directly to the offence charged in Count one as found rightly by the Court below and contended that since in law at the stage of a no case submission the issue of conviction was not up for consideration, there was no duty on the Court below to ascribe probative value to the prosecutorial evidence as submitted by the Appellant and urged the Court to hold that on the totality of the evidence led by the Prosecution the Appellant as rightly found by the Court below has a case to answer on Count one and should be called upon to enter into its defense if it so desire and give some explanations as required of it by law.

RESOLUTION OF SOLE ISSUE My lords, a consideration of the sole issue as to the constituent elements of the offence in Count 1 with which the Appellant(2018) was chargedLPELR-46631(CA) vis a vis the evidence led in proof thereof by the 1st Respondent in the light of the Appellant’s application of no case submission would involve the

21 interpretation of the provisions of Section 75(1) of the Urban and Regional Planning and Development Law and Section 239 of the Administration of Criminal Justice Law of Lagos State 2011. Now, by Section 75 (1) of the Urban and Regional Planning and Development Law, it is provided thus:

“Any person who contravenes the provisions of this Law and Regulations made pursuant to this Law is guilty of an offence and shall be liable on conviction to a fine not exceeding the Sum of Two Hundred and Fifty Thousand Naira or one month of community service or both.” However, by Section 239 ACJL of Lagos State 2011, it is provided thus:

“If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the Defendant sufficiently to require him to make a defense, the Court shall as to that particular charge discharge him.” My lords,(2018) while the main LPELR-46631(CA) thrust of this appeal is the issue of when a Court can either uphold or overrule a no case submission and whether on the peculiar facts and circumstances of this case as disclosed in the evidence of the Prosecution witnesses the Court below was right or

22 wrong when it held that the 1st Respondent made out a prima facie case against the Appellant on Count 1 for which it should enter upon its defense, yet the Appellant had raised myriads of other issues which, touching on the competence or otherwise of Count 1, shall be considered first in this judgment and resolved one way or the other before if need be the main issue in this appeal, dealing with the Appellant’s no case submission, shall be considered and resolved, should Count 1 be found to be valid.In law competence is the soul and spirit of adjudication, whether in civil or criminal proceedings in the Courts. See

Madukolu V. Nkemdilim (1962) 2 SCNLR 341. See also

Efiok V. Govt. of Cross Rivers State (2011) All FWLR (Pt. 593) 1993 @ p. 2003.

However, it would appear that in one breadth while learned Senior Advocate for the Appellant had vehemently contended that the offence charged under Count 1 is a simple offence which can only be tried by the Magistrate Court of(2018) Lagos State LPELR-46631(CA) and not the Court below, yet in another breadth it was also equally vehemently contended by him that the offence charged in Count 1 is an offence unknown to law, that is to

23 say no longer known to law since he had earlier submitted that it was a simple offence under the law. I was initially inclined to discountenance these obviously irreconcilably inconsistent submissions but on second thought I reasoned it is better and wiser to consider these submissions, though obviously inconsistent, on the merit as submissions made in the alternative, all in the interest of doing substantial justice. Now, one of the major reforms of the new regime of the system of administration of criminal justice in Lagos State is the provision of the law limiting the time for raising objections bordering on validity of a charge or information before the Court. Thus, a Defendant may raise any objection to the validity of the charge or information at any time before Judgment provided however, any such objection, except as it relates to jurisdiction, shall only be considered along with the substantive issue and the ruling thereon made at the time of delivery of the Judgment. It follows therefore, that objections shall not be taken or entertained(2018) by the Court LPELR-46631(CA) during trial on the ground that the charge is imperfect or

24 erroneous, which is now intended to checkmate frivolous preliminary objections that had hitherto littered the paths of criminal trials with unwanted thorns. See Fabian Obodo

V. The State (2016) LPELR – 356(CA). The first port of call in the consideration of the myriads of issues raised by way of challenge to the validity or competence of Count one ought therefore, to have been the Court below. However, I have considered the submission that the offence as laid in Count 1 being a simple offence, which I agree it is, is outside the jurisdictional competence of the Court below being the High Court of Lagos State and should rather have been commenced before the Magistrate Court of Lagos State. I have looked calmly at the entire information containing Counts 1 – 111 and it is clear that while Count 1, on which both the Appellant and the 2nd - 5th Respondents were jointly charged, is a simple offence, Counts 2 – 111 are serious indictable offences of manslaughter with which the 2nd - 5th Respondents were jointly charged.(2018) LPELR-46631(CA) ​In law, once a non-indictable offence, which ordinarily should be a matter for summary trial, is joined with an indictable

25 offence in an information then the simple or non-indictable would be valid before the Court trying the offences on the Information, notwithstanding the fact that ordinarily a non- indictable offence, such as simple offence, may not on its own alone be the subject of trial by information. I hold therefore, by the joining of Count 1 with Counts 2 - 111 in the information on which the Appellant is being jointly tried with the 2nd - 5th Respondents before the Court below, the High Court of Lagos is conferred with the requisite jurisdiction to entertain same. In arriving at the above conclusion, I have averted my mind to the enormous constitutional powers conferred on the High Court of a State as regards criminal trials generally, when it was succinctly provided in Section 272 (1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) thus:

“Subject to the provision of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any criminal(2018) proceedings LPELR-46631(CA) involving or relating to any penalty forfeiture, punishment or other liability in respect of an offence committed by any person.”

26 In Aluko V. DPP (1963) All NIR 404, the DPP of Western Nigeria had lodged a complaint in the High Court against an accused person and at the conclusion of the trial the accused was convicted of publishing seditious libel contrary to Section 47(I) (c) of the Criminal Code of Western Nigeria for which he was liable to two years imprisonment or a fine of One Hundred pounds or both. This was clearly a non- indictable offence tried to conclusion by the High Court. On appeal against his conviction on the ground that the Criminal Procedure Ordinance, similar to the contention in the instant appeal by the Appellant, did not provide for trial of the offence of seditious libel alone before the High Court and therefore, the High Court had no jurisdiction to try such offence alone except in addition to other indictable offences, the appeal was dismissed by the Supreme Court, holding amongst others, that the High Court of Western Nigeria has jurisdiction to try any offence whether triable by a Magistrate or not. ​I have taken the pain to search through the entire provisions(2018) of the ACJLLPELR-46631(CA) of Lagos State 2011, since the Appellant’s counsel did not cite any such particular

27 Section, that invalidates Count 1 before the Court below, charged along with other indictable offences as grave as manslaughter arising from the same set of transactions, and conferred exclusive jurisdiction on the Magistrate Court to the exclusion of the High Court. In my view, and I so hold, any crime triable by the Magistrate Court of Lagos State is triable by the High Court of Lagos State even if by way of Summary trial, more so where it is charged along with other grave indictable offence. To do otherwise in the circumstances of the facts of this case would mean that the State has to charge the Appellant and the 2nd - 5th Respondents on Count 1 before the Magistrate Court while at the same time charging the 2nd - 5th Respondents before the High Court over offences that arose out of the same set of transactions. ​The above scenario would not only be tardy but also cumbersome both on the Defendants as well as the State to run two parallel trials in two parallel Courts on offences arising from the same set of transactions and for which the same set(2018) of witnesses LPELR-46631(CA) are to be presented by the State before the Court. At any rate since the Magistrate Court would

28 clearly have no jurisdiction over the indictable offence of manslaughter charged in Counts 2 – 111, the law would lean more in favor of the Court that has the powers over the principal issues involved in the case to be the Court with the requisite jurisdiction to hear such a case. In the instant case, that Court is the High Court of Lagos State that has the jurisdiction over the principal issues of manslaughter also arising from the same set of transactions that gave rise to the charge in Count 1 rather than the Magistrate Court of Lagos State. For the analogous position in civil proceedings; See Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. See also Grace Jack V. University of Agriculture Makurdi

(2004) 5 NWLR (Pt. 865) 208 @ p. 213.

I have already reproduced the provision of Section 75(1) of the Urban and Regional Planning and Development Law, by which provision the offence charged under Count 1 is both defined and the punishment prescribed. That is all the law requires(2018) that an offenceLPELR-46631(CA) and its punishment must be prescribed by a written law. I therefore, see no merit in the Appellant’s submissions that the offence charged

29 under Count 1 is unknown to law as not being in any written provision and punishment prescribed by law. The offence charged under Count 1 is known to law and is an offence created, defined and punishment prescribed by Section 75(1) of the Urban and Regional Planning and Development Law. Consequently, I hold that Count 1 is valid. See Mohammed V. The State (2012) LPELR -

9694 (CA), where this Court had succinctly reiterated and held inter alia thus:

“The usual practice in criminal matters is for the prosecutor to charge an accused under the penal or punishment section, not the definition section of the enactment - See Criminal Procedure of the Southern States of Nigeria by Nwadialo at page 75 as follows: “The statement of the offence is in short the name by which the offence is known... An offence may be defined in one section and declared punishable by a prescribed penalty in another section (e.g. robbery in Sections 401 and 402 of the Criminal Code respectively),(2018) in such LPELR-46631(CA) a case, the usual practice is to refer to the penal section. The authority for this practice no doubt derives from the fact of its adoption in the models of charges given in

30 the Second and Third Schedules of the Criminal Procedure Act and which models are by virtue of Section 463 good and sufficient in Law.” See also Attorney General of the Federation V.

Clement Isong (1986) 1 QLRN 75.

I now come to the issue of the particulars of the offence as charged in Count 1. I have taken a second look at both the statement of the offence and the particulars as set out therein and it appears to me that all the constituent elements of the offence as created under Section 75(1) of the Urban and Regional Planning and Development Law are clearly stated therein and to the understanding of the Appellant, for which, at its arraignment, a plea of not guilty was entered for it. At any rate, today in Lagos State under and by virtue of Section 158 of the ACJL of Lagos State 2011, no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars(2018) shall be LPELR-46631(CA)regarded at any stage of the case as material unless the Defendant was in fact misled by the error or omission. In the instant case not only was there no such

31 allegation, the Appellant on arraignment on 30/11/2015 understood the charge and duly pleaded not guilty to the Count 1 with which it was jointly charged with the 2nd - 5th

Respondents. In Ogbomor V. State (1985) 2 SC 289, the Supreme Court dismissed the appeal of the accused person, holding that the allegation of mis-description of the enactment was not fundamental. In that case, the offence of armed robbery was preferred against the accused person but he was charged pursuant to Robbery and Firearms Act, 1970 instead of the Firearms (Special Provisions) Act 1970. The Supreme Court rejected his argument of having been charged under a nonexistent law and held that the omission of the phrase “Special Provision” from the Act was not fundamental.

Finally on the myriads of challenges to the validity of Count one is the issue of whether it is in the name of ‘Lagos State’ or ‘State of Lagos’ that the Appellant ought to be prosecuted before the Court below? It was brilliantly contended(2018) that the LPELR-46631(CA)proper nomenclature is ‘Lagos State’ which is the State created on 27/5/1967 by virtue ofthe State (Creation and Transitional Provisions) Decree No 14 of 1967

32 as a component part of Nigeria and not the ‘State of Lagos’ which is unknown to law. This question or issue appears to be a very interesting one and truly very tempting to be considered head long on the merit in this appeal as alluring as it was presented by the Appellant, but the question is this: from which of the eight grounds of appeal in the amended notice of appeal is this issue arising from in this appeal? An appeal is not an all comer issues affairs but rather one founded on and inextricably tied to the grounds of appeal and issues properly arising there from. Thus, any issue not arising from a valid ground of appeal is both irrelevant and a mere meddlesome interloper or busy body and thus dead on arrival, indeed as dead as ‘dodo’. ​I shall therefore, not dissipate any energy on an issue, though appearing so interesting and alluring but has no bearing to any of the grounds of appeal in this appeal and thus irrelevant. It is better such an issue is left for another day when it would validly arise in an appeal to be properly and competently considered and pronounced upon by the Court but until (2018)then this issue, LPELR-46631(CA) being irrelevant

33 in this appeal, is hereby discountenanced in its entirety as going to no issue at all.

I have considered the submission that the offence as laid in Count 1 is incompetent for failure to serve notice of contravention on the Appellant. In my finding, having considered the submissions of both counsel, Count 1 does not require any proof of service of notice of contravention to be competent as in my view such a contention would at best rather go to the issue of proof beyond reasonable doubt of the offence alleged under Section 75(1) of the Urban and Regional Planning and Development Law. It is thus an issue completely irrelevant at the stage of considering a no case submission. It must await a consideration of proof of the alleged offence beyond reasonable doubt, which can only arise at the conclusion of the substantive trial before the Court below. I cannot therefore, but agree with the submission of the learned DPP, since nothing by way of legislation and or settled principles(2018) ofLPELR-46631(CA) law in judicial authority has been shown to the contrary by the Appellant, that in law the constitutional powers of the Attorney General to institute

34 criminal proceedings cannot be hindered by any law or statute of the State. I hold therefore, that there is nothing in Section 75(1) of the Urban and Regional Planning Law amounting to any pre-condition that could impede the exercise of the powers of the Attorney General of Lagos State to institute criminal proceedings in the Court below against the Appellant. See Section 75 (1) of Urban and Regional Planning Development law of Lagos State. See also Olatunbosun V. State (2013) 17 NWLR (Pt. 1382)

167; Okpa V. State (2017) LPELR - 42205(SC) I have looked at the provisions ofSection 75(1) of the Urban and Regional Planning and Development Law by which provision the offence charged under Count 1 was laid and I find that it was properly laid against the Appellant upon compliance with all due process and conditions precedent and the question of whether they have been proved beyond reasonable doubt or not or would succeed or not is not an issue for determination at the stage of a no case submission. All that the law requires is that an offence(2018) and itsLPELR-46631(CA) punishment must be prescribed in a written law. I therefore, see no merit in all the Appellant’s submissions

35 that the offence charged under Count 1 is incompetent when on the contrary it was properly laid in line with the provisions of Section 75(1) of the Urban and Regional Planning and Development Law. Consequently, I hold that

Count 1 is valid. See Mohammed V. The State (2012)

LPELR - 9694 (CA). See also Attorney General of the

Federation V. Clement Isong (1986) 1 QLRN 75.

Having deeply pondered over all the myriads of other issues raised by the Appellant, I am minded to agree with the submission of the learned DPP that at the stage of consideration of a no case submission the issue of pre - condition not raised by way of objection to the charge at the time plea was taken is truly not an issue for consideration under a no case submission and at any rate by Section 75(1) of the Urban and Regional Planning and Development Law under which Count 1 was laid there is no provision of such condition precedent of notice of contravention. At this stage of consideration of the Appellant’s(2018) no case LPELR-46631(CA)submission the only real, proper and relevant issue is whether or not a prima facie case has been made out against the Appellant

36 by the 1st Respondent and not whether or not the 1st Respondent has proved its case beyond reasonable doubt as would warrant at this stage the conviction of the Appellant. Having resolved all the myriads of issues challenging the validity of Count 1 and the jurisdiction of the Court below against the Appellant, I hold that Count 1 is valid and the Court below has the requisite jurisdiction to entertain it along with Counts 2 - 111 as laid in the information. Let me now proceed to consider the main thrust of this appeal, which is the ruling of the Court below overruling the Appellant’s no case submission and calling on it to enter upon its defense. ​In considering a no case submission, the position of the law is that where at the close of the Prosecution’s case, evidence has not been led in support of all or any of the essential elements of the offence with which a Defendant was charged, such a Defendant is said to have no case to answer and ought to be discharged at that stage without being called(2018) upon to LPELR-46631(CA) enter upon his defense or make any explanation as that would amount to calling on the Defendant to prove his innocence.

37 See Ibeziako V. COP. (1963) 1 All NLR 61 @ pp. 68 -

69, where the Supreme Court per Ademola, CJF., held as follows:

“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; (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 convict on it.” See also Dr. Olu Onagoruwa V. The State (1993) 7

NWLR (Pt. 303) 49; Ubanatu V. COP (2000) 1 SC. 31; Omisore V. State (2004) 28 WRN 106; Ekwunugo V. FRN (2008) 15 NWLR (Pt. 111) 630; Practice Direction of Lord Parker Lord Chief Justice of England in 1962 1 All ER 227. ​In our system of administration of criminal justice, a Defendant, who is constitutionally presumed innocent until the contrary is proved, carries no duty under the law to prove his(2018) innocence LPELR-46631(CA)and therefore, where the Prosecution fails to make out any prima facie against him he is entitled to be discharged without much ado by the Court. This is also the position where at the close of the Prosecution’s case, the

38 evidence led by the Prosecution has become so discredited as a result of cross examination or is so manifestly unreliable that no reasonable Tribunal can safely convict on it. See Onagoruwa V. The State (1993) 7 NWLR (Pt.

303) 49. See also The State V. Bello (1989) CLRN 370. In law therefore, to make out the essential elements of an offence is to make out a prima facie case against a Defendant for which he shall be called upon to defend himself on the charge(s) against him. This simply implies that once at the close of the Prosecution’s case it is found or shown that no prima facie case has been made out against the Defendant, he shall at that stage be discharged and acquitted as there would be no basis for proceeding any further with his trial. SeeChianugo V. The State

(2002) 12 NWLR (Pt. 750) 228 @ p. 233. My lords, what then is a prima facie case in law? A prima facie case has been defined generally to mean such as would prevail until contradicted or overcome by other evidence. A prima facie case is thus a case in which there is evidence(2018) which suffices LPELR-46631(CA) to support the allegation made in it and which will stand unless there is evidence to rebut the allegation.

39 In Duru V. Nwosu (1989) 1 NWLR (Pt. 113) 24 @ p.

43, Nnamani JSC (God bless His soul) had succinctly defined prima facie thus:

“It seems to me the simplest definition is that which says that there is ground for proceeding. In other words, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it, it suggests that the evidence produced so far indicates that there is something worth looking at.” See also Black’s Law Dictionary, 9th Edition @ p. 1159. See also Osborn’s Concise Law Dictionary, 8th Edition by Rutherford & Bone @ p. 259.

In Emedo V. State (2002) 15 NWLR (Pt. 789) 196, it was stated inter alia thus:

“It is the judge’s duty however, in a submission of no case to answer is made to discharge an accused where the evidence adduced by the prosecution does not disclose the necessary minimum evidence establishing(2018) the facts LPELR-46631(CA) of the crime charged, in doing so, the Judge does not write a “Judgment”, it is not the judge’s job, at that stage, to weigh and evaluate evidence or decide who is telling the truth or who is lying and he is

40 not to conclude that what the prosecution has adduce is unreliable….If a submission of no case is made, it is the judge’s duty not only to consider whether there is some scintilla of evidence which in law would lead to conviction, but also whether it would be safe to convict on the evidence as it stand….A submission of no case to answer may properly be upheld: a; When there has been no evidence to prove an essential element in the alleged offence and 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. The decision to uphold or reject the submission should not depend upon whether the adjudicating tribunal would at that stage convict or acquit, but upon whether the evidence is such that a reasonable tribunal might convict…Although those considerations were expressed to be for the guidance of judges during criminal trials it is clear that they are of general(2018) applicability.” LPELR-46631(CA) And in Ikomi V. State (1986) 3 NWLR (Pt. 28) 340 it was reiterated inter alia thus:

41 “Prima Facie, means on the face of it. The true meaning of a prima facie case has been explained by Hubbard, J, in his judgment in Regina V. Coker and others. (1952) 20 NLR 62 where he held that a submission that there is no case to answer meant that there was no evidence on which the Court could convict “even if the Court believed the evidence given.” So also in Ugbede Ali V. State (2012) 10 NWLR

(Pt.1309) @ p. 589, this Court had added its voice to this issue inter alia thus:

“There is no doubt and the law is trite as enunciated by Ba’Aba, JCA, in Gwandu vs. Kebbi State (supra,); that trial Courts should not delve into the substantive case at interlocutory stage because if the Court is allowed to revisit the substantive issue at any stage of the trial, it would tantamount to the Judge sitting on appeal on his earlier decision on the substantive matter thereby outraging the sense of justice of an independent(2018) dispassionate LPELR-46631(CA) observer sitting in Court.”

Having reiterated the principles applicable in considering a no case submission and having also set out the provisions of the Law under which the Appellant was tried under Count 1

42 as charged by the 1st Respondent, what are the evidence in support of the essential elements of the offences charged and were the essential elements made out at least on a prima facie basis against the Appellant? Was the evidence led by the 1st Respondent through PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8 so discredited under cross examination or so manifestly unreliable as would support a no case submission as contended by the Appellant in this appeal to render the decision of the Court below perverse and thus liable to be set aside by this Court in this appeal?

​At the trial before the Court below, the 1st Respondent called eight witnesses who testified as PW1 - PW8 and since it is only these pieces of evidence led through these witnesses that are relevant to the resolution of the sole issue for determination in this appeal as to whether or not the 1st Respondent made out a prima case against the Appellant at the close of the Prosecution’s case as would require the Appellant to enter upon its defence to Count 1 charged(2018) against it, LPELR-46631(CA)I shall take the liberty to set out in detail the evidence of these witnesses for the purpose of proper focus and analysis in this judgment.

43 PW1 was one Dr. Victor Olusegun Oyenuga. He stated inter alia that he is a COREN Registered Engineer and that he knows the Synagogue Church of all Nations’ building that collapsed. He is a member of Committee of professionals set up by Council of Registered Engineers (COREN) to determine the fitness of the foundation of the building and it was discovered that the area of the base needed is bigger that what was provided and that the upper structures were undersized in terms of quantity of iron rods used in the beam, which might have led to the collapse of the building. He was cross examined.

PW2 was one Adedamola Ayinde. He is a registered Town Planner and a Consultant Urban Planner. He stated inter alia that he was aware of the collapse of Synagogue Church of All Nations building on 12/9/2014, which was a Friday and that he moved the various State agencies to the site for rescue operation. He saw an approval for 5 floors but by the time the building collapsed, it has gone up to 6 floors. The approval(2018) was noLPELR-46631(CA) longer valid. The collapse building was not registered. He visited the site of the collapse on Sunday two

44 days after the collapse and that the collapsed building has no approval. He was cross examined.

PW3 was one Musiliyu Olayimika Adebayo. He is a retired Chief Fire Officer for Lagos State. He stated inter alia that on 12/9/2014, one Mr. Eze called the Lagos State Fire Service, Alausa, Ikeja, Lagos to report the collapse of Synagogue Church building at Ikotun but they could not enter the site as the Church Personnel were hostile until the next day when the Governor, Raji Fashola came and appealed to the Church Personnel and about 131 persons were rescued alive while 80 dead bodies were recovered. When they got to the scene on Friday 12/9/2014, they left the following Thursday after staying for 7 days and the slaps collapsed on each other like pack of cards. He partook in the rescue operation. He was cross examined.

​PW4 was one Adesola Babatunde Kabir. He is a Civil Defense Officer attached to Disaster Unit of LASEMA. He stated inter(2018) alia that LPELR-46631(CA) at 12 noon his office received a distress call of collapse of Synagogue building and the team got to the collapse site at 1.30 pm. He found that 6 storey building had collapsed and he was there on Friday 12th through

45 Sunday 14/9/2014. His team was able to rescue 131 persons alive and 86 dead bodies. The rescue Operation ended on 18/9/2014 and the Team went back to their duty posts. He saw that the building collapsed, some people were trapped, some died and some alive and his Team brought out both the living and the dead and those alive were taken to the Hospital while those that were dead were taken to the mortuary. They had to use cutter to cut the iron barricade in order to access the victims underneath the rubbles. He was cross examined.

PW5 was one Prof. John Oladapo Obafunwa. He is a professional Pathologist. He stated inter alia that various dead bodies from the site of the collapse were deposited in various mortuaries in Lagos. That 7 corpses were deposited in LASUTH. He conducted the autopsy on the bodies deposited at LASUTH on 23/9/2014. It was a Team work and he was assisted by Forensic Experts from South Africa. Other bodies in other Mortuaries were handled by some other group(2018) of experts. LPELR-46631(CA) Some of the samples taken were sent to South Africa for DNA and that 110 victims out of 116 were identified. He testified that the causes of death to be

46 categories into 6 categories namely: 1; Death resulted from multiple injuries. E.g. Skull or Limb fractures. About 56 fell into this category; 2; Traumatic Asphyxia - Insufficient oxygenation, about 19 bodies fell into this category - the victims are unable to breath.; 3; Exanguinations – severe blood lost, about 19 victims, 4; Severe Fracture of the skull and crushing of the brain issue, about 12 victims; 5; Congested heart failure, the victim that died 7 days after fell into this category and 6; Accumulation of blood in the chest cavity – Haemothoras, about 19 victims. The 116 victims were issued with Death Certificates. He was cross examined by only the Appellant’s counsel.

​PW6 was one Rafiq Olubukola Arogunjo. He is an officer of Nigerian Air Space Management Agency (NAMA). He stated inter alia that on 12/9/2014, he was in the office conducting training exercise between 10.51 and 12.33 pm. During that range of time there was no problem with the flight being used and it landed safely. Two days later he heard of(2018) the collapsed LPELR-46631(CA) building. On playing the radar, he discovered that the aircraft never flew over the collapsed building as it was over half a

47 mile away from the collapsed building. He was cross examined.

PW7 was one Engineer Oreoluwa Fadayomi. He is a member of a non-Government Organization consisting of professionals called Building Collapse Prevention Guild (BCPG). He stated inter alia that he was the structural Engineer to the Technical Committee set up by BCPG to the collapse of the 7 storey building belonging to Church. Upon analysis he discovered that there were rigid or stone point with reinforcement as it ought to be, the reinforcement found on ground is about half of what is expected to be used, the beam was slender and could not support the load it is carrying and thereby making the building unstable, two of the beam column on the ground floor were under reinforced, all the beam on the ground floor were slender and foundation which the columns were sited were under sized. All of the above could be responsible for the collapse. He was cross examined. (2018) LPELR-46631(CA)

​PW8 was one MR. Linui Gubbi. He is an investigator with ICPC. He knows the 4th Defendant. He stated inter alia that he came across the case in the course of this investigation

48 when a petition was written against one Mr. Akinfenwa George who is now at large but fully participated in the construction of the collapse Synagogue 7 storey. The petition was referred to him for investigation. He invited Mr. Akinfenwa George who in his statement claimed that the accused gave him the seal with which he marked the structural drawing of the collapsed building. He identified the said drawing as Exhibit P1. In the course of investigation he discovered that Akinfenwa George knew the 4th Accused in Akure and that Akinfenwa, Ajala and Ogundeji jointly produced the drawing for the collapsed Synagogue Building. He tendered the statements of the 4th and 5th Respondents in evidence as Exhibits P14 (A) & P14 (B).

​My lords, these are the substance of the evidence before the Court below at the close of the Prosecution’s case when the Appellant’s counsel made a no case submission on its behalf and which was overruled by the Court below in the ruling now(2018) appealed LPELR-46631(CA) against. So, did the 1st Respondent fail to make out any prima facie case against the Appellant as contended by the Appellant in this appeal or was the Court below right when it held that the 1st

49 Respondent did made out a prima facie case against the Appellant as contended by the 1st Respondent in this appeal? In its ruling delivered on 8/3/2018, the Court below while holding that the 1st Respondent had made out a prima facie case against the Appellant and dismissing the Appellant’s no case submission, had stated inter alia thus:

“…. I have read the Addresses filed and have listened carefully to oral adumbration made by Learned Counsel on both sides in exposition of their written briefs. The issues formulated by all Counsel (Prosecution and Defense) is basically and essentially the same. That is whether or not from the totality of evidence so far placed before the Court a prima facie case has in any way been established against the Defendants to warrant calling on them to enter their defense. The principle governing No Case submission has been ably and correctly stated by all learned Counsel. The job of this Court therefore is to apply the principle as ably and correctly stated to the facts of this case…These(2018) LPELR-46631(CA) are the guiding principles on a No Case to Answer. The Court at this stage is not to analyze, review or examine the credibility of

50 evidence led… Without going into analysis as to the merit or credibility of the evidence led, one has to look at the evidence and see, whether or not any scintilla of evidence however slight connecting or linking the Accused to the offence charged…. From the statement of the law quoted above, the operative word is evidence however slight. In this case the 1st Defendant was charged with failure to procure approved plan before the commencement of the building in question. PW1 & PW2 gave evidence that there was no approved plan in respect of the building. That has satisfied the requirement in Agbo’s Case. From the proceedings, there is evidence that 1. That the 2nd - 5th Defendants are involved directly or indirectly in the construction of the SCOAN building, 2. That the said building collapsed, 3. The certain number of persons died as a result of the collapse. These questions that raised issues that call for explanations from no other persons but the Defendants.(2018) These LPELR-46631(CA) are material evidence linking the Accused persons to the offences charged before the Court. This clearly have satisfied the requirement in Agbo's Case. Learned Counsel to the

51 1st Accused Prince Lateef Fagbemi SAN in his oral adumbration argued that there was no compliance with Section 75 of the Urban & Regional Planning law and that the condition precedent to preferment of a Charge has not been complied with. These issues that has to do with the substantive Charge… The argument of Mrs. Titilola Akinlawon SAN and that of Mr. Olalekan Ojo that there is no proof of death of persons named and non-compliance with Section 75 (a) of Urban & Regional Planning Law is also caught by the principles in Ali’s Case being matters for substantive hearing which should be entertained at an interlocutory stage. The evidence of the Prosecution witnesses particularly that of 1st-5th 7th & 8th has sufficiently linked the Defendants to the alleged offence, sufficient enough to all on them to enter their defense. In the result, I find no merit in the Submissions of No Case to Answer by all the Defense Counsel. The No Case Submissions are overruled(2018) and accordingly LPELR-46631(CA) dismissed. The Defendants are hereby called upon to enter their Defense.”See pages 484 - 570 in Vol. II of the record of appeal.

52 I have had a calm look at and reviewed the entirety of the evidence as led by the 1st Respondent through PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8, both oral and documentary. On the evidence as above as in the records of appeal it does appear to me that the 1st Respondent did lead sufficient evidence in support of all the essential elements of the offence in Count 1 with which the Appellant was charged and for which it stood trial before the Court below.

​There was evidence that the Appellant’s building constructed between 2008 and 2013 had collapsed on 12/9/2014 and several named persons were killed on the same date in the incident, including 85 foreign nationals from South Africa were also killed and several other persons were injured. The names of 110 out of the 116 persons killed in the incident on 12/9/2014 were clearly stated in Counts 2 – 111. Their bodies were identified and autopsy duly conducted on their bodies. The PW5, one Prof. John Oladapo(2018) Obafuna, LPELR-46631(CA) gave evidence to these facts but surprisingly he was not cross examined by counsel to the 2nd - 5th Respondents as only the Appellant’s counsel cross examined him, wherein he

53 confirmed that he personally carried out autopsy on two of dead bodies, who were amongst the 116 persons killed in the incident of collapsed Appellant’s building on 12/9/2014.

There were also Exhibit P1 is the NBRRI/COREN Technical Committee Report on the collapse of the six storey Guest House building of SCOAN in Ikotun/Egbe Lagos State, while Exhibit P2 is the COREN report on calculation of Beams 7. Exhibit P3 is the Structural Drawing of SCOAN and there is evidence that the detailing on Beam 7 are not adequate and the area of base needed is bigger than the one provided but the super structure were undersized in terms of physical size and quantities or number of iron rods in column and beams. The collapsed building has no approved plan and the existing approved plan is for the Church auditorium and not the collapsed building. Exhibit P4 is the Application form for registration and processing of building, while Exhibits 8(1) - (5) are pictures of the collapsed building. (2018) LPELR-46631(CA)

It was not disputed that 86 dead bodies were recovered from the site of the incident and 131 people were rescued alive. Out of the 116 dead bodies, 6 bodies were deposited at Isolo

54 General Hospital Mortuary, 63 bodies at Mainland Hospital Mortuary Yaba, 7 bodies at LASUTH Mortuary Ikeja. About 110 victims identified out of 116 victims. Deaths resulted from Truamatic asphysia - insufficient oxygenation - 19 victims, Deaths resulted from Exsanguination - severe blood lost - 19 victims, Deaths resulted from congested heart failure – the victim who died 7 days after the incident, Deaths resulted from accumulation of blood in the chest cavity - Haemothoras - 9 victims. Death certificates were issued. I hold that these pieces of evidence covered the entire elements of the offence charged in Count 1. See pages 223 – 224, 233 – 247, 251, 255 – 258, 266, 284 and 290 in Vol. I of the record of appeal.

​The only question then is this: whether these pieces of evidence clearly showing the entire constituent elements of Count 1 alleged against the Appellant were so badly discredited in cross - examination and had thus become manifestly unreliable that no reasonable tribunal can safely convict on(2018) it? I agree LPELR-46631(CA) with the apt submission of learned Senior Advocate for the Appellant that in law where the evidence led by the Prosecution has been

55 badly discredited or deficient in the constituent essential elements of the offence charged, it will readily form the basis of a successful no case submission. I also agree with his submissions on what in law would amount to sufficient evidence in satisfaction of the essential elements of the offence charged under Count 1 or contradiction in evidence. Yet, it is also true that in law for contradictions to be countenanced it must amount to material contradiction.

In Onubogu V. The State (1974)9 SC 1 the Supreme Court Per Fatayi - Williams JSC (as he then was) had succinctly explained the rationale for the position of the law inter alia thus:

“Where one witness called by the prosecution in another case contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation such as showing that the witness is hostile, before they can ask the Court to reject the testimony of one witness in preference for the evidence of the discredited witness. It is not competent(2018) for the LPELR-46631(CA) prosecution which called them to pick and choose between them. They cannot without showing clearly that one is hostile witness, discredit one and

56 credit the other. See (Summer & Leivesly v. Brown & Co (1909), 25, TLR 745. We also think that even the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial judge, as was the case here to provide the explanation. One of the witnesses should furnish the explanation and thus give the defence the opportunity of testing, by cross-examination, the validity of the preferred explanation.” Also in Bassey V. The State (2012) All FWLR (Pt. 633)

1816 @ p. 1832, what amounts to substantial contradiction in evidence was explained thus:

“One evidence contradicts another evidence when it says the opposite of what the other evidence has stated and not when there is just minor discrepancy between them. Two pieces of evidence contradicts one another when they are themselves inconsistent on material facts.” See also Godwin Igabele II V. The State (2007) 2 NCC

125; Odi(2018) V. Iyala LPELR-46631(CA) (2004) 8 NWLR (Pt. 875) 283; Elewuju V. Onisaodu (2000) 3 NWLR (Pt.647) 95.

​Having averted my mind to the above succinct position of the law, I am unable to see any material contradictions in the

57 evidence of the witnesses for the 1st Respondent as would render their evidence so discredited and manifestly unreliable. It is my view, and I so find, that the pieces of evidence led by the 1st Respondent through its witnesses rather than being insufficient or discredited and unreliable at the stage of a no case submission, when the credibility of the witnesses was not yet in issue, concretizes the case of 1st Respondent, at least on prima facie basis, against the Appellant as would warrant the Court below, as it rightly did, in my finding, to call upon the Appellant to enter upon its defense to the charge against it.

​Based on the findings of facts, applicable principles of law and the reasons adduced above therefore, I hold firmly that the 1st Respondent placed before the Court below sufficient materials in form of relevant evidence in line with the offence charged in Count 1 amounting to a prima facie case against the Appellant to warrant its being called upon to enter upon its defense to the criminal allegation made against (2018)it by the 1st LPELR-46631(CA) Respondent and far be it from the correct position of the law that at the stage of the close of the Prosecution’s

58 case, the Prosecution was or should be expected to prove the alleged offence against the Appellant beyond reasonable doubt. In law, all that was required of the Prosecution at the stage of the close of its case is the establishment of a prima facie case against the Appellant, nothing more, nothing less and nothing else. See Ajiboye

V. State (1995) 8 NWLR (Pt. 414) 408. See also

Ubanatu V. COP (2001) 22 ACLR 312 @ p. 335. This is why where even if prima facie has been made out against a Defendant, he may yet at the end of the trial still be discharged and acquitted if the Prosecution failed to prove its case against him beyond reasonable doubt as required by law, notwithstanding the fact that at the close of its case it made out a prima facie case against him. In other words, prima facie case is not synonymous with proof beyond reasonable doubt. See Ubanatu V. COP (2001) 22

ACLR 312 @ p. 335. See also Ajidagba V. IGP (1958) 3

FSC 5 @ p. 6; Ajiboye V. The State (1995) 8 NWLR (Pt. 414) 408. (2018) LPELR-46631(CA)

My lords, it has long been the admonitions of the apex Court and this Court to trials Courts not to write lengthy rulings where in their view and or finding a prima

59 facie case has been made out against a Defendant by the Prosecution. However, where a trial Court is of the view and or finding that a prima facie has not been made out against a Defendant by the Prosecution, then perhaps, its ruling may be a little, I say a little, longer, since it would then be required to demonstrate the reasoning leading to its finding that no prima facie case has been made out against the Defendant and thereby discharging him of the offences with which he had been charged. There is always the dilemma from the effect of a lengthy ruling in a no case submission, notwithstanding whether the no case submission is being upheld or overruled by the trial Court. I think even at this Court such caution must be exercised. This is so because where a Court writes a lengthy ruling on a no case submission, it may inadvertently pronounce on some of the substantive issues bordering on proof beyond reasonable doubt as would render the trial Court prejudicial to continue with the trial should its finding be overturned on appeal and the case is remitted to the trial Court. In(2018) such a situation, LPELR-46631(CA) the case may have to start de - novo before another judge of

60 the said trial Court. This, in my view, would clearly be against the spirit and intendment of the new regime of expeditious determination of criminal cases in the Courts as envisaged and engendered by the Administration of Criminal Justice Law of Lagos State 2011. The ruling of the Court below was short in relation to Count 1 with which the Appellant and the 2nd - 5th Respondents were jointly charged but yet it met the requirements of the law and the admonition of the apex Court as well as this Court that once a trial Court in a criminal trial has made up its mind and formed a well informed opinion on the totality of the evidence led by the Prosecution that a prima facie case has been made out against a Defendant, it need not write a lengthy ruling in order not to prejudge issues in the substantive trial that would require more mature considerations and deeper reflections in the final judgment.

See Atoyebi V. FRN (2018) 5 NWLR (Pt. 1612) 350 @ p. 361, where the Supreme Court per Sanusi JSC., had reiterated so succinctly inter alia thus:

“Again, (2018)in writing aLPELR-46631(CA) ruling in no case submission, it is advisable that a trial Court should try as much as

61 possible to be brief and should refrain from making any remarks or observations on the facts”. It follows therefore, that it is not part of the duty of the Court below to at the stage of a consideration of a no case submission to weigh and evaluate evidence or to decide who is telling the truth or not and all such likes issues that have been urged upon this Court as part of the failings of the Court below in the ruling appealed against. I think the Court below was rather on the right course when it narrowed down its consideration to only the relevant issues for consideration in a no case submission, resisting the temptation, as it were, to make such a ruling either a final judgment or an all issues comers affairs, perhaps simply to please the Appellant’s counsel on the myriads of issues canvassed before it. SeeEmedo V. State (2002)15

NWLR (Pt.739) 196. See also R. v. Baker (1999) 2 Cr.

App. R. 335; Bello V. The State (1967) NMLR 1.

The Court below was therefore right when it held that the 1st Respondent(2018) did makeLPELR-46631(CA) out a prima facie case against the Appellant on Count 1 necessitating its being called upon to

62 enter upon its defense if it so wishes. In my finding there is nothing perverse or erroneous in the totality of the findings, conclusions and decision of the Court below in this regard. In law, an appellate Court has no business interfering with the correct findings of a trial Court even where the reason adduced and relied upon by the trial Court to arrive at the correct findings turns out to be wrong. See Alhaji Ndayako & Ors. V. Alhaji Dantoro &

Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC., had pronounced with finality on this vexed issue, thus:

“An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere....” See also(2018) Abaye V. OfiliLPELR-46631(CA) (1986) 1 NWLR (Pt. 15) 134;

Ukejianya V. Uchendu 18 WACA 46.

​In the light of all my findings above, I have no difficulty resolving the sole issue for determination against the

63 Appellant in favor of the 1st Respondent and hold firmly therefore, that this appeal lacks merit and ought to be dismissed. Consequently, it is hereby so dismissed.

In the result, the Ruling of the High Court of Lagos State, Ikeja Judicial Division; Coram: L. B. Lawal - Akapo J., in Charge No. ID/1759C/2015: The State of Lagos V. The Registered Trustees of Synagogue Church of All Nations delivered on 8/3/2018, in which the Appellant’s no case submission was overruled, refused and dismissed is hereby affirmed.

Consequently, Charge No: Charge No. ID/1759C/2015: The State of Lagos V. The Registered Trustees of Synagogue Church of All Nations is hereby remitted to the Court below for expeditious continuation and conclusion according to law.

JAMILU YAMMAMA TUKUR, J.C.A.: I have read in draft the lead(2018) judgment justLPELR-46631(CA) delivered by my learned brother BIOBELE ABRAHAM GEORGEWILL JCA. I agree with the reasoning and conclusion contained therein. I adopt the judgment as mine with nothing further to add.

TOBI EBIOWEI, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my Learned

64 Brother, BIOBELE ABRAHAM GEORGEWILL, JCA and on the strength of the evidence before the lower Court, I also agree that the appeal lack merit and it is dismissed. The No case submission fails and the ruling of the lower court is upheld.

The appeal is against the lower Court decision overruling the no case submission made by the Appellant. The principles upon which a no case submission can succeed have been adequately brought out by my learned brother in the lead judgment just delivered. He has covered the field on the law. I will just add that,once the prosecution witnesses has made out a case that calls for the explanation of the conduct of a Defendant in a criminal matter, the no case submission will fail as the prosecution will be said to have made out a prima facie case against the Defendant.

SeeAJIBOYE & ANOR VS. STATE (1995) 8 NWLR (PT

414) 408; ABACHA VS. STATE (2002) 3 SC 53; OKO VS. STATE (2017) LPELR-4226 9SC) 58; ATOYEBI VS. FRN(2017)(2018) LPELR- LPELR-46631(CA) 43831 (SC).

​I agree with my Learned Brother that the prosecution has made out a prima facie case against the Appellant and therefore the no case submission fails. I abide by the

65 reasons and conclusion reached by my learned brother, Biobele Abraham Georgewill, JCA in dismissing this appeal.

66

(2018) LPELR-46631(CA) Appearances:

H. O. Afolabi, SAN with him, O. A. Diyan, Esq., A. Ayandipo, Esq. and O. Arasi, Esq. For Appellant(s)

Mrs. T. K. Shita-Bey (DPP, Ministry of Justice, Lagos State) with her, Y. D. Oshoala, Esq.(Director), A. Haroun, Esq.(Assistant Director), Y. A. Sule, Esq. (PSC) and Mrs. Bola Akinsete (PSC) for the 1st Respondent.

Chief E. L. Akpofure, SAN with him, Chief Edwin Okonkwo, John Okoriko, Esq. and Ayodeji Olabinwonnu, Esq. for the 2nd Respondent.

Mrs. Titilola Akinlawon, SAN with her, Mrs. Shade Adebayo, James Aigbe, Esq., Remi Adebayo, Esq. and Ayomide Ogunsanwo, Esq. for the 3rd & 5th Respondents.

Olalekan Ojo, SAN with him, R. M. Bature, Esq. and Adebayo Adedokun, Esq. for the 4th Respondent For Respondent(s)

(2018) LPELR-46631(CA)