By K. idahosa
A no-case submission is available to a Defendant if at the close of the case for the Prosecution, the evidence led fails to establish the essential ingredients or elements of the offence charged.
The relevant provisions are Sections 302 and 303 of the Administration of Criminal Justice Act and provide as follows:
“302 - The court may, on its own motion or on application by the defendant after hearing the evidence for the prosecution, where it considers that the evidence against the defendant or any of several defendants is not sufficient to justify the continuation of the trial, record a finding of not guilty in respect of the defendant without calling on him or them to enter his or their defence and the defendant shall accordingly be discharged and the court shall then call on the remaining defendants, if any, to enter his defence.
303(3) - In considering the application of the defendant under section 303, the court shall, in the exercise of its discretion, have regard to whether:
a). An essential element of the offence has been proved;
b). There is evidence linking the defendant with the commission of the offence with which he is charged;
c). The evidence so far led is such that no reasonable court or tribunal would convict on it; and
d). 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.”
In other words, it is not the law for a defendant to prove his innocence. Applying this principle of law to the facts of the instant case, the prosecution laboured night and day in futility as there were really no need for the charge in the first place, in that they failed woefully to:
1). prove an essential element of the offence against Justice Onnoghen CJN;
2). provide evidence to link to Justice Onnoghen with the commission of the offence with which he is charged;
3). that from the totality of the evidence led by the prosecution it is not such that a reasonable court or tribunal would convict him on it; and
4). that no prima facie case has been made out against him for him to be called upon to answer or defend himself.
On the Presumption of Innocence
By virtue of section 36(5) of the 1999 Constitution (as amended), every person charged with a criminal offence is presumed to be innocent until he/she is proved guilty. It is therefore the duty of the Prosecution who alleges to prove or rebut the presumption of innocence as constitutionally guaranteed in favour of Justice Onnoghen CJN. So, where a no case submission had been made out as been expected in this case at the end of the presentation of the Prosecution’s case, it would amount to asking Justice Onnoghen to establish his innocence if he is called upon to answer, or enter a defence to the charge that failed to established a link/bearing between him and the offence.
The effect of presumption of innocence of an accused person as enshrined in the Constitution inures in favour of the Defendant. The burden is not upon Justice Onnoghen to prove his innocence or that no crime was committed by him, it will be erroneous for the trial court to call upon Justice Onnoghen to explain himself or prove facts especially within his knowledge, where there is no iota of evidence linking him or having bearing with the commission of the crime charged.
The only reasonable thing left to be done now would be to discharge and acquit him and order for his immediate reinstatement while ordering the arrest and prosecution of all the persons who initiated and instigated his trial for malicious prosecution to serve a deterrent to false whistleblowers on innocent Nigerians.
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