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Senator Elisha Abbo And His No Case Submission: Did The Court Err?

On Wednesday 29th July, 2020 a Magistrate Court sitting in Zuba, Abuja upheld a no case submission entered by the defendant, Elisha Abbo, a lawmaker representing Adamawa North Senatorial District who was accused of assaulting a woman, Osimibibra Warmate at Pleasure Chest Sex Toy Shop, Banex Plaza, Wuse 2, Abuja on 11th May, 2019, and subsequently charged with two counts of criminal force and assault contrary to sections 262, 264 and 273 of the Penal Code Law. The court’s ruling has drawn public outcry from Nigerians, many of whom watched CCTV footage of the alleged assault by the defendant and believed he had a case to answer, at least. The general consensus is that justice has not been served. This article therefore examines the ruling of the court in the instant case vis-a-vis the principle of no case submission, and the court’s general duty to not only do justice but be seen to have done justice, even if the heavens fall.


In his ruling, the Learned Magistrate observed that the evidence and exhibits tendered did not disclose a prima facie case of the alleged crime of criminal force and assault against the defendant, further adding that the court would rely on the law and not logic or media reports because a person who alleges must prove. Material parts of the court’s ruling are reproduced as follows:

The prosecution’s case centered on the oral evidence of PW1 (Ms. Warmate) and the two discs contained CCTV footage of the incident and alleged video clip of an apology from the defendant (Mr.Abbo)’

‘The medical report of Mega Sight Eye Clinic did not disclose in detail what happened to the victim and Dr. Ambrose Ibegule who wrote the report was not called as a witness’

‘The IPO (Investigating Police Officer) did not investigate this case at all or she just charged the defendant to court via the F.I.R (First Information Report) without due care and attention. In fact, she has succeeded in creating a doubt in the mind of this court during cross-examination and the Supreme Court held that where there is a doubt in a criminal trial, such doubt should be resolved in favour of the defendant. The Defendant is hereby discharged under section 303(3)(c) and (d) of the ACJA 2015’


A no case submission simply means that there is nothing in the evidence adduced by the prosecution that would persuade the court to compel the defendant to put up his defence.[1] In considering the application of the defendant in this light, the court as provided in Section 303(3) of the ACJA is required to take cognizance of the following:

  • whether an essential element of the offence has been proved.
  • whether there is evidence linking the defendant with the commission of the offence with which he is charged
  • whether, on the face of the record, the evidence of the prosecution has been so discredited and rendered unreliable by cross-examination that it would be unsafe to convict on such evidence
  • whether the evidence so far led is such that no reasonable court or tribunal would convict on it; and
  • any other ground on which the court may find that a prima facie case has not been made out against the defendant for him to be called upon to answer.

Apart from the instances above, a court or tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.[2]  See Ibeziakor v. The Police (1963) 1 NLR 61, and Okafor v. The State (2016) All FWLR (pt. 824) 130 at 142-143.

It is difficult to fathom why the court held that the defendant had no case to answer in the circumstances. This is especially when considered against the backdrop of provisions of law and numerous judicial authorities of superior courts, all of which are in agreement that a no case submission is not upheld lightly, and that however slight the evidence linking the defendant with the commission of the offence charged, the case ought to proceed to trial for the defendant to explain his own side of the story.

It is also instructive to note that at the stage of a no case submission, the question as to whether the evidence is believed is immaterial and does not arise, nor is the necessity of the entire evidence adduced by the prosecution or the credibility of witnesses. Thus, even if the medical report did not disclose in detail what happened to the victim and the doctor who made it was not called to testify, the court still had the oral evidence of the victim, the IPO and CCTV footage of the alleged assault. These, it is submitted were sufficient to establish a prima facie case warranting an explanation by the defendant at trial, at the very least. By holding otherwise, one is left with the feeling that the standard required of the prosecution to establish and prove its case against the defendant was not beyond reasonable doubt as required by law, but without every shadow of doubt. An impossible exercise. See Edakarabor v. The State (2008) All FWLR (pt. 428) 333, Okafor v. The State (supra), and Eneji v. State (2013) LPELR 20393 (CA).

Part of the court’s ruling centered on the medical report which it was held did not disclose in detail what happened to the victim and the fact that the doctor who made it was not called as a witness. It is strange that this was one of the planks on which the court based its decision, since it has power in criminal matters to call any witness whether or not such a witness has been called by either party, with a view to arriving at a fair and just determination of the case. This much is provided by Section 256 of the ACJA, 2015. If the court found the report lacking in detail even with CCTV footage of the defendant apparently applying force not justified by law on the victim with intent to cause harm, it ought to have caused the doctor who made the report to appear and testify in the interest of justice, which overrides all other interests. See Orisakwe v. The State (2004) LPELR-2764 (SC).

With the evidence adduced by the prosecution, one struggles to see what else would have been placed before the court to at least satisfy the requirement of a prima facie case. The Learned Magistrate with due respect, stretched the principle of no case submission too far, such that it no longer became a yardstick for ascertaining whether or not any case was made against the defendant, but a path on which he would walk free without the slightest of explanations for the events of 11th May, 2019.

The court in its ruling vowed to rely on the law and not logic or media reports because a person who alleges must prove. However, it appears the court fell into the trap of being overly concerned and sympathetic to criticism of the defendant’s actions by the public and the chastisement he received, which was partly because of his status as a lawmaker and rightly so. But even such sympathy ought not to sway the court to side with the defendant since the concept of justice is not a one way traffic. This accords with the reasoning of the court in Okomu Oil Palm Ltd v. Okpame (2006) LPELR – 7708 (CA) where Aderemi, J.C.A. held as follows:

After all, it must be remembered that justice is not a one-way. It is not even only a two-way traffic in the sense that it is justice for the plaintiff and the defendant alone. I think really justice is a three-way traffic in justice for the plaintiff who is crying for a redress of the wrong done to him; justice for the defendant  who is crying that he should be heard and his defence considered before being ordered to pay any sum claimed against him and also before being mulcted in cost; and finally but very important, justice for the society at large whose social norms and psyche are certainly going to be adversely affected if it cannot be seen by the common but reasonable man that upon the facts as laid down, justice in the real and true sense of the word, has been seen to have been done by the arbiter’

It is not wrong for the public to be interested in any society’s justice delivery system neither is it wrong for the common man on the streets to form opinion about an alleged crime by a person in authority or any person at all using logic and media reports, in the face of overwhelming evidence. This is the least Nigerians deserve for being part of the three way-traffic.


It is the opinion of this writer that the court erred in upholding the defendant’s no case submission. That the evidence adduced by the prosecution was not deemed sufficient to breathe life into proceedings for the defendant to enter defence is something many that are learned in law and even those not so learned, so to say, will struggle to understand for a long time. It remains to be seen whether the prosecution will exercise the right to appeal or not, and what the Appellate Court will have to say in the event that an appeal is filed.

[1] . J.A. Agaba, Practical Approach to Criminal Litigation in Nigeria (3rd edn, Bloom Legal Temple 2017)

[2] Ibid.

Lukwagh Simon Mgbanyi Esq is an Ibadan based Legal Practitioner and Volunteer Writer for Lex Community NG.

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