DAVID EFFIOM v. THE STATE
(2014)LCN/7666(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 5th day of February, 2014
CA/C/128/2009
RATIO
CRIMINAL PROCEDURE: INFORMATION; THE PROVISION OF THE CRIMINAL PROCEDURE LAW ON WHEN AN INFORMATION CHARGING AN PERSON WITH AN INDICTABLE OFFENCE SHALL BE PREFERRED
Section 314(3)(b) of the Criminal Procedure Law, relied on by the learned SAN, for the Appellant had the following provisions
“No information charging any person with an indictable offence shall be preferred unless………..
(b) The information is preferred by the direction or with the consent of a Judge ……….
1. If an information preferred otherwise than in accordance with the provisions of subsection (2) of the section has been filed by the Registrar, the information shall liable to be quashed.”
These provisions are very clear and unambiguous such that they require no interpretation of all. By ordinary and plain meaning which a court has a duty to accord them, the direction or consent of a judge of the High Court of Akwa Ibom State was a pre-condition or condition precedent for an information/charge to be validly preferred against any person for an indictable offence/s before or in that court. Being a condition precedent, for an information/charge to be validly preferred before that High Court in respect of an indictable offence, failure or non-compliance with the provision would ordinarily be fatal to the information/charge for it shall be liable to be quashed by that court. This was the position stated by the Supreme Court in Abacha v State (supra) while interpreting similar provision of the Criminal Procedure Law of Lagos State. The apex court had referred to the cases of Ikomi v The State (1986) 3 NWLR (28) 340 and Zik’s Press Ltd. (1947) 12 WACA 202 on the proper procedure for laying. Information under that law and stated that the adoption of a wrong method in laying on information at the High Court will not vitiate the information once it is clear what the intendment of the Attorney-General is. It was in that regard that the Supreme Court held in the case that, since no format was prescribed by the Criminal Procedure Law, for laying an information, a simple letter was enough in so far as it was accompanied by proofs of evidence and the charges containing the counts. This position of the apex court deals with the form or nature the application by the Attorney-General to prefer an information/charge before the High Court, should be in and not the requirement of direction or consent of a Judge of the High Court for the information/charge to be preferred. While by the said position, a letter from the Attorney-General which is accompanied by the proofs of evidence and the charges is enough and qualifies as a proper application to prefer the information/charge, mode to the High Court, it does not mean that the grant of consent or giving of direction by a Judge thereof to prefer the information/charge is thereby automatically presumed. Consent or direction of a Judge to prefer an information/charge is granted or given after a consideration of the application by the Attorney-General whether by way of a letter or any other form or mode as may specifically be prescribed by the relevant laws or Rules of court. per. MOHAMMED LAWAL GARBA, J.C.A.
PRACTICE AND PROCEDURE: PRIMA FACIE CASE; THE PRINCIPLES THAT THE COURT MUST BE GUIDED BY IN CONSIDERING AN APPLICATION TO QUASH THE CHAGES AGINST AN ACCUSED ON THE GROUND THAT THE PROOF OF EVIDENCE AND STATEMNT OF WITNESSES DID NOT DISCLOSE A PRIMA FACIE CASE AGAINST THE ACCUSED, THE DEFINITION OF A PRIMA FACIE CASE AND SITUATIONS WHERE IT MAY ARISE
This court, relying on the cases of Abacha v State (supra); Ohwovoriole v State (supra) and Ubanatu v COP (2000) 2 NWLR (643) 115, had in the case of Grange v FRN (2010) 7 NWLR (1192) 135 at 163 held that:-
“In considering an application to quash the charges against an accused person on the ground that the proof of evidence and statements of witnesses did not disclose a prima facie case against the accused, the court must be guided by the following well laid down principles:-
1. The court must confine itself to the proof of evidence and the witnesses statements attached thereto to show whether a prima facie case has been disclosed. Where the proof of evidence does not disclose a prima facie case, the court will quash the charge against the accused.
2. The proof of evidence must sufficiently link the accused with the offence although it need (sic) not be a conclusive proof of the accused person’s guilt which is a matter to be determined of the substantive trial; and
3. Where there is no sufficient linkage of the accused to the offence allegedly committed, the court would be on a good ground to quash the charge against the accused person.”
See also Nyame v FRN (2010) 7 NWLR (1193) 344, 420 – 1 and Aituma v State (2007) 5 NWLR (1028) 466. The courts have also acknowledged that the phrase “prima facie” is not capable of being precisely defined at the stage of arraignment of an accused person for trial or at the stage of considering an application to prefer an indictable offence against a person. However the accepted and established meaning of the phrase which is said to be simple, has been stated to be “that there is ground for proceeding” with the information/charges against an accused person. A prima facie case is said to be disclosed when the information and statements of the witnesses accompanying the application to prefer the charge, disclose offence/s under the law and some connection, relation or link with the accused person such that if no explanations are offered by him, and is believed by the judge, would warrant and justify a finding that he was guilty of the offences. On the face of the information, essential ingredients or elements of the offences charged must be disclosed and the proof of evidence must show connection or link between the offences and the accused person, how be it slight, that would require some explanations from him at the trial. Let me however be quick to emphasize that it is not proof , of whatever standard, that is required of this stage as all that is required of the information is that it discloses offences cognizable in law and connection/link therewith, to the accused person. Once the information shows facts which constitute defined offences under the law for which penalty has been prescribed there under and a connection/link with the accused person, then a worthwhile ground or reason would be disclosed for proceeding with the trial and so a prima facie case disclosed for the purpose of the charge/s against the accused person. See Ajidagba v Inspector General of Police (1958) 3 FSC, 5; Duru v Nwosu (2009) 1 NWLR (113) 24; Ikomi v State (supra); Chiamigo v State (2001) FWLR (14) 242.-
Perhaps I should state that for the purpose of a criminal trial, prima facie case or evidence may arise for consideration in two situations. One is of the stage of the application for consent of a judge as condition precedent, where applicable, to prefer a charge or file an information before the High Court against a person alleged or accused of the commission of an indictable offence. This is the case of the Appellant here.
The second stage at which the issue of a prima facie case may arise is after the charge or information had been preferred and the trial of an accused had commenced with the prosecution, calling witnesses and producing other documentary evidence that would be subjected to the scrutiny of cross examination by the accused person. At the end or close of the prosecution’s case, an accused person may apt to make a no case submission on the ground that the evidence adduced against him, did not disclose a prima facie case to warrant the trial court to call on him to enter his defence to the charge/s against him. per. MOHAMMED LAWAL GARBA, J.C.A.
Before Their Lordships
MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria
UZO I. NDUKWE ANYANWUJustice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZEJustice of The Court of Appeal of Nigeria
Between
DAVID EFFIOM (a.k.a. DAVID EFFIONG)Appellant(s)
AND
THE STATERespondent(s)
MOHAMMED LAWAL GARBA, J.C.A.: (Delivering the Leading Judgment): The Appellant, along with UNEEPTEE Power Nig. Ltd. and DSP Enoh Usoh Usoh Essien, were arraigned before the High Court of Akwa Ibom State, Uyo, on a nine (9) counts charge No. HU/2C/2008 of conspiracy and stealing contrary to Sections 556(1) and 408, respectively, of the Criminal Code, Cap 38, Vol. II, Laws of Akwa Ibom State, 2000. Specifically, the Appellant and Essien were charged with the offence of conspiracy to steal in counts 1 and 2 while in count 3, he, with UNEEPTEE, were charged with stealing “the aggregate sum of Two Hundred and Forty Eight Million, Four Hundred Thousand Naira (N248,400,000) the property of Akwa Ibom State Government.”
On arraignment, the Appellant vide a motion filed on the 15/4/2008, prayed the High court to quash the charge/information against him and the 2nd accused, on the grounds that:-
a) That the charge/information was preferred with the leave and
b) That the information as preferred, does not disclose a prima facie case against Applicants.
After hearing the motion, the High Court, in a ruling delivered on the 2/6/2009, refused to quash the information/charges against the Appellant but quashed same against the 2nd accused person: UNEEPTEE. It is expedient to set out the reasoning and conclusion of the High Court in the ruling, which runs from page 71 – 72 of the record of the appeal. This is it:-
“I have endeavoured to go through the information which is so badly reproduced that it is difficult to read but it is clear issues of transfer of money, non-payment to designated persons, conversion and stealing are raised. I cannot say whether or not a prima facie case is made out against anyone but I cannot also say that no offence is disclosed against the 1st accused person. In the circumstances it is only after hearing the evidence that one can make a determination one way or the other. This is different from the situation where there is nothing linking the accused persons of all to the offence.
On the issue that the information was preferred without leave there is nothing apparent on the information to suggest that leave was sought or that consent of a judge was obtained. Since the statement taken from witnesses were not verified on oath before a Magistrate the information can only be preferred under the provisions of Section 314(3)(b) of the Criminal Procedure Law which provides as follows:-
“No information charging any Person with an indictable offence shall be preferred unless the information is preferred by the directions or with the consent of a Judge or pursuant to order made under part 31 to prosecute the person charged for perjury.
Section 314(5) provides that an information preferred otherwise than in accordance with the provisions of sub-section (2) of this section has been filed by the Registrar the information is liable to be quashed.
Sub-section (2) deals with the situation where a judge on being satisfied with requirements of information had been met directs that such information be filed.
However a letter from the office of the Director of Public Prosecution forwarding a draft charges and statements of witnesses for purposes of filing of information will in my view quality as an application in the light of the decision in the case of Abacha v The State (2002) 11 NWLR (Pt.779) 437.
If this is the correct position then an application has been made in this case but no judge has signed the consent. Would this be enough to cause the information to be quashed? I think not. I merely did not sign the consent in the original information but I was ready to hear the case.
In the final analysis I hold that the evidence disclosed link the 1st accused person to the offences charged and therefore the information against him is not liable to be quashed. The information against the 2nd accused person is more hazy and cannot stand as it is. It is hereby quashed.”
Aggrieved by the above decision as it affects him, the Appellant appealed against same vide notice of appeal filed on the 16/6/2009.
In line with the Rules of the court, the Appellant’s brief settled by Joe Agi, SAN, was filed on 8/7/2009 while the Respondent’s brief settled by Ekpenyong E. Ntekim, the Hon. Attorney-General and Commissioner for Justice, Akwa Ibom State, was filed on the 10/5/2013 pursuant to the order of the court made on the 9/5/2013.
The briefs of argument were adopted at the oral hearing of the appeal on 19/11/2013 by the learned counsel for the parties as the submissions in support of their respective positions in the appeal, which we were urged by them to uphold in the determination of the appeal.
The learned silk for the Appellant had raised two (2) issues from the three (3) grounds of appeal contained in the notice of appeal, in the Appellant’s brief as follows:-
1. Whether Section 314(3)(b) of Criminal Procedure Law of Akwa Ibom State requiring application for consent to prefer a charge was complied.
2. Whether the proof of evidence disclosed a prima facie case against the Appellant.
These issues were set out of paragraph 3 on page 3 of the Respondent’s brief by the Hon. Attorney-General. Although there is no indication in the briefs as to from which of the grounds of the appeal the above issues were distilled, it appears they are derivable from the grounds and so I would consider and determine them in the order set out in the briefs.
ISSUE 1
The submissions by the learned silk for the Appellant are that the offences for which the Appellant was charged were indictable ones for which consent of Judge of the High Court was mandatory for the information to be preferred against the Appellant, under Section 314(3)(b) and 5, of the Criminal Procedure Law. The provisions were set out and it was submitted that the mere writing of a letter forwarding the charge to the High Court is not enough and that that court must exercise its discretion on the information, otherwise the charge must be quashed. Abacha v State (2002) 11 NWLR (779) 437 was cited and it was further submitted that there is no record before the High Court that an application to prefer the charge was made to it and that it exercised its discretion granting leave or consent to do so. The purpose of consent to prefer a charge as state in the case of Enuma v State (1997) 1 NWLR (479) 1157 & 121 -2 was ref erred to and it was contended that the consequence of failure to comply with the provisions 314(2) of the Criminal Procedure Code was that the information shall be liable to be quashed under section 314(5) which is clear and unambiguous. The learned SAN had set out a portion of the reasoning by the High Court on the leave or consent to prefer the charge earlier and then submitted that that court ought to have quashed the charges against the Appellant. He urged us to do so for failure to comply with mandatory provisions of the criminal code.
On his part, the Hon. Attorney-General, had pointed out on the issue that section 314(3) relied on by the Appellant on the requirement of consent/leave to prefer a charge before the High Court had been amended by the provisions of section 1 of the Criminal Procedure (Amendment) Law, 2006 which provides thus:-
“1. Section 314 of the Criminal Procedure Laws, Cap.39 Laws of Akwa Ibom State, 2000 is hereby amend as follows:
a) by deleting the expression “verified on oath before a Magistrate” appearing in paragraph (a) of subsection (3) of the section; and
b) by deleting the whole paragraph (b) of subsection (3) of the section.”
According to him, the effect of these provisions is that there is no statutory requirement for the prior direction or consent of the Judge before information could be preferred before the High Court in Akwa Ibom State. He said in the circumstances, the High Court was not under a duty to comply with the law that was no longer in force and that the charge against the Appellant was not liable to be quashed for failure to obtain leave or consent of a judge before it was preferred. We are urged to resolve the issue against the Appellant.
I would pause here to determine this, apparently, narrow issue.
Section 314(3)(b) of the Criminal Procedure Law, relied on by the learned SAN, for the Appellant had the following provisions
“No information charging any person with an indictable offence shall be preferred unless………..
(b) The information is preferred by the direction or with the consent of a Judge ……….
1. If an information preferred otherwise than in accordance with the provisions of subsection (2) of the section has been filed by the Registrar, the information shall liable to be quashed.”
These provisions are very clear and unambiguous such that they require no interpretation of all. By ordinary and plain meaning which a court has a duty to accord them, the direction or consent of a judge of the High Court of Akwa Ibom State was a pre-condition or condition precedent for an information/charge to be validly preferred against any person for an indictable offence/s before or in that court. Being a condition precedent, for an information/charge to be validly preferred before that High Court in respect of an indictable offence, failure or non-compliance with the provision would ordinarily be fatal to the information/charge for it shall be liable to be quashed by that court. This was the position stated by the Supreme Court in Abacha v State (supra) while interpreting similar provision of the Criminal Procedure Law of Lagos State. The apex court had referred to the cases of Ikomi v The State (1986) 3 NWLR (28) 340 and Zik’s Press Ltd. (1947) 12 WACA 202 on the proper procedure for laying. Information under that law and stated that the adoption of a wrong method in laying on information at the High Court will not vitiate the information once it is clear what the intendment of the Attorney-General is. It was in that regard that the Supreme Court held in the case that, since no format was prescribed by the Criminal Procedure Law, for laying an information, a simple letter was enough in so far as it was accompanied by proofs of evidence and the charges containing the counts. This position of the apex court deals with the form or nature the application by the Attorney-General to prefer an information/charge before the High Court, should be in and not the requirement of direction or consent of a Judge of the High Court for the information/charge to be preferred. While by the said position, a letter from the Attorney-General which is accompanied by the proofs of evidence and the charges is enough and qualifies as a proper application to prefer the information/charge, mode to the High Court, it does not mean that the grant of consent or giving of direction by a Judge thereof to prefer the information/charge is thereby automatically presumed. Consent or direction of a Judge to prefer an information/charge is granted or given after a consideration of the application by the Attorney-General whether by way of a letter or any other form or mode as may specifically be prescribed by the relevant laws or Rules of court.
In the present appeal, the Hon. Attorney-General had submitted that the Criminal Procedure Law of Akwa Ibom State 2000 had been amended by the Criminal Procedure (Amendment) Law of 2006. The nature and extent of the amendment is as set out earlier in a review of the submissions by the Hon. Attorney-General on the issue. There is no dispute as to the existence of the 2006 Amendment Law and so the court has a duty to take judicial notice of it because it is in force and was, of the time the information/charge was preferred against the Appellant.
Section 122(2)(a) of the 2011 Evidence Act (Section 74(1)(a) of the 2004 Act) provides that:-
“122(2)-The court shall take judicial notice of:-
a) all laws or enactments and any subsidiary legislation made under them having the face of law now or previously in force in any part of Nigeria.”
See Victino Fixed Odds Ltd v Ojo (2010) 8 NWLR (1197) 486.
As seen in Section 1(b) of the 2006 Amendment Law, set out earlier, the provisions of section 314(3)(b) of the 2000 Law on the requirement of direction or consent of a judge for an information/charge to be preferred against any person for an indictable offence before the High Court, were deleted. The legal consequence and effect of the deletion of the provisions is that from the date the amendment came into force, the requirement for direction or consent of a judge for an information/charge to be preferred against any person for an indictable offence before the High Court of Akwa Ibom State, had ceased to be a statutory requirement under the Criminal Procedure Law of Akwa Ibom State 2000. Such direction or consent was no longer a condition precedent for an information/charge to be validly preferred before the High Court from the date of the amendment.
Undoubtedly from the record of the appeal, the charge as indicated at the beginning of this judgment, against the Appellant was preferred in the year 2008, which was two (2) years after the amendment of Section 314(3)(b) of the 2000 Criminal Procedure Law, was made. The information/charge against the Appellant was therefore preferred pursuant to and under the provisions of the 2006 Amendment Law in force of the time and not the 2000 Law before the amendment. As of 2008 when the information/charge was preferred against Appellant, Section 314(3)(b) of the 2000 Law had ceased to exist and not longer in force to be complied with. It was no longer a part of the 2000 Law that would be enforced. The Hon. Attorney-General is right and so I agree with him, that the High Court had no duty to comply or ensure compliance with a non-existent provision of the 2000 Law in the consideration of whether the information/charge against the Appellant was validly preferred before it on ground of absence of direction or consent of a judge. In these premises; the High Court was right to have refused to quash the information/charges against the Appellant. I resolve the issue against the Appellant in favour of the Respondent.
ISSUE 2
Whether the proof of evidence disclosed a prima facie case against the Appellant. The learned, SAN, for the Appellant in his submissions on the issue had restated that the charge against the Appellant is that he stole the sum of N248,400,000.00 property of Akwa Ibom State Government. He then posed the following questions, which he also answered as shown below:-
“a) What was stolen
b) How was it stolen
c) Who actually took the stolen money
d) Under what circumstances was the money stolen from Akwa Ibom State Government
e) What is the connection of the appellant to the whole act
f) Is Akwa Ibom State the owner of the money
We shall proffer the answers so as to make the issues crystal clear.
a) The charge is that the sum of N248,400,000.00 (Two Hundred and Forty-eight million, four hundred thousand naira) was stolen.
b) The money was allegedly stolen through the issuance of cheque in the amount of N248,400,000.00
c) The cheque was issued in the name of UNEEPTEE POWER LTD. the 2nd Accused of the lower court.
d) The money was paid by the Akwa Ibom State Independent Electoral Commission willingly for a contract it awarded to Printing and Packaging Aids Ltd. for the printing of ballot papers through UNEEPTEE an agent of Printing and Packaging Aids Limited.
e) The Appellant is the Chairman of UNEEPTEE POWER Ltd. the agent of Printing and Packaging Aids Limited who collected the N248,400,000.00.
f) The Akwa Ibom State Government cannot lay claim to the money its agent had paid out to an agent of a disclosed principal for the execution of a contract which has in fact been executed but yet to be delivered.”
After setting out counts I – IV of the charge, the learned silk said that from the information in the charge, the Respondent just intended to harass the Appellant because:-
“Our submission is predicated on the following facts:
(a) Counts 1 and 2 are the same
(b) In count 3, the appellant and UNEEPTEE POWER NIG. LTD. are charged for stealing N248,400,000.00 property of Akwa Ibom State Government.
(c) In count 4, DSP ENOH USOH USOH ESSIEN is charge for stealing N20,000,000.00 property of Akwa Ibom State Government.
(d) In count 5, DSP ENOH USOH USOH ESSIEN is charged for stealing N87,000,000.00 property of Akwo Ibom State Government.
(e) In count 6, DSP ENOH USOH USOH ESSIEN is charged for stealing N150,000.00 property of Akwa Ibom State Government.”
According to the learned SAN, the Respondent was “just gambling just to satisfy the interest of certain people” and referred to the statements in the cases of Abacha v. State (supra) of pages 503 – 5 and Ohwovoriole v FRN (2003) 2 NWLR (803) 176. It was his argument that from the entire evidence, the case was one of contract awarded and 100% payment made for it and that if any case, should be made, it should be between Printing & Packaging Aids Ltd. and UNEEPTEE, its zonal representatives for not remitting money collected on its behalf.
In further argument, he said since the Akwa Ibom State Government paid out money to the owner of the products it desired through an agent, the money belonged to the producer of the products and not the government, citing “the Criminal Code (sic) Cap 38 laws of Akwa Ibom State” as supporting the position. It was his submission that having paid the money through UNEEPTEE for Printing & Packaging Aids Ltd., the Akwa Ibom State Government has no locus standi to complain that its money has been stolen and so the charge preferred against the Appellant is without foundation. Relying once again on a statement in Abacha v State (supra), the learned silk urged claiming another person’s money. He said the Appellant is in law, different from UNEEPTEE that received the money and against which the charge was quashed and that there is really no evidence against the Appellant other than that he is Chairman of said company. We are urged by him, to dismiss the charge against the Appellant.
The Hon. Attorney-General, citing the case of Nwagbara v FRN (2001) 6 NWLR (708) 171 had said that there is prima facie case where facts clearly reveal a crime and show the accused person is linked with it, it may be prima facie evidence that the accused has something to explain of the trial. Further, in considering what a prima facie is, the courts have cautioned the appreciation of the fact that a prima facie case is not the same thing as proof which comes later in the determination of guilt. The cases of Kalu v State (2012) LPELR 9287: Ohwovoriole v FRN (supra) and Nyame v FRN (2010) 185 LRCN 90 at 102 for the meaning of a prima facie case and when it can be said to be disclosed by evidence were cited. It was also submitted that in considering whether a prima facie was disclosed, a court does not comment or delve into the substantive matter, reliance was placed on Ohwovoriole v FRE (supra), also reported in (2003) 1 SCNJ 484, (03) 1 SC (Pt. 1) 1 and (03) LPER 2364.
In the present appeal, it was contended that the charge and proof of evidence clearly show that the money in question was given to the Appellant and the job for which it was given, had not been delivered. Sections 392(2)(e), 392(4) and 394 of the Criminal Code were cited and it was submitted that the Appellant’s submission that the Akwa Ibom State Government paid money for products through an agent of the producer who failed to pay it over as directed accords with the charge against the Appellant and provides the link which he must explain of the trial. We are urged to consider the proof of evidence particularly of page 6 of the record of appeal and to dismiss the appeal.
This court, relying on the cases of Abacha v State (supra); Ohwovoriole v State (supra) and Ubanatu v COP (2000) 2 NWLR (643) 115, had in the case of Grange v FRN (2010) 7 NWLR (1192) 135 at 163 held that:-
“In considering an application to quash the charges against an accused person on the ground that the proof of evidence and statements of witnesses did not disclose a prima facie case against the accused, the court must be guided by the following well laid down principles:-
1. The court must confine itself to the proof of evidence and the witnesses statements attached thereto to show whether a prima facie case has been disclosed. Where the proof of evidence does not disclose a prima facie case, the court will quash the charge against the accused.
2. The proof of evidence must sufficiently link the accused with the offence although it need (sic) not be a conclusive proof of the accused person’s guilt which is a matter to be determined of the substantive trial; and
3. Where there is no sufficient linkage of the accused to the offence allegedly committed, the court would be on a good ground to quash the charge against the accused person.”
See also Nyame v FRN (2010) 7 NWLR (1193) 344, 420 – 1 and Aituma v State (2007) 5 NWLR (1028) 466.
The courts have also acknowledged that the phrase “prima facie” is not capable of being precisely defined at the stage of arraignment of an accused person for trial or at the stage of considering an application to prefer an indictable offence against a person. However the accepted and established meaning of the phrase which is said to be simple, has been stated to be “that there is ground for proceeding” with the information/charges against an accused person. A prima facie case is said to be disclosed when the information and statements of the witnesses accompanying the application to prefer the charge, disclose offence/s under the law and some connection, relation or link with the accused person such that if no explanations are offered by him, and is believed by the judge, would warrant and justify a finding that he was guilty of the offences. On the face of the information, essential ingredients or elements of the offences charged must be disclosed and the proof of evidence must show connection or link between the offences and the accused person, how be it slight, that would require some explanations from him at the trial. Let me however be quick to emphasize that it is not proof , of whatever standard, that is required of this stage as all that is required of the information is that it discloses offences cognizable in law and connection/link therewith, to the accused person. Once the information shows facts which constitute defined offences under the law for which penalty has been prescribed there under and a connection/link with the accused person, then a worthwhile ground or reason would be disclosed for proceeding with the trial and so a prima facie case disclosed for the purpose of the charge/s against the accused person. See Ajidagba v Inspector General of Police (1958) 3 FSC, 5; Duru v Nwosu (2009) 1 NWLR (113) 24; Ikomi v State (supra); Chiamigo v State (2001) FWLR (14) 242.-
Perhaps I should state that for the purpose of a criminal trial, prima facie case or evidence may arise for consideration in two situations. One is of the stage of the application for consent of a judge as condition precedent, where applicable, to prefer a charge or file an information before the High Court against a person alleged or accused of the commission of an indictable offence. This is the case of the Appellant here.
The second stage at which the issue of a prima facie case may arise is after the charge or information had been preferred and the trial of an accused had commenced with the prosecution, calling witnesses and producing other documentary evidence that would be subjected to the scrutiny of cross examination by the accused person. At the end or close of the prosecution’s case, an accused person may apt to make a no case submission on the ground that the evidence adduced against him, did not disclose a prima facie case to warrant the trial court to call on him to enter his defence to the charge/s against him.
In both of these situation, suspicion alone, no matter how strong and weighty it might otherwise appear, would not be sufficient to amount to a prima facie case that would in law, warrant calling for explanations from on accused person. There must be facts and proof of evidence showing unequivocal link or connection of the offences charged, with the accused person for a prima facie case to be disclosed.
In the present appeal, the information against the Appellant are contained in counts I, II and III of the charge, which are thus:-
“STATEMENT OF OFFENCE COUNT I
CONSPIRACY TO EFFECT AN UNLAWFUL PURPOSE Contrary to Section 556(1)(f) of the Criminal Code Cap 38 Vol. II Laws of Akwa Ibom State of Nigeria 2000.
PARTICULARS OF OFFENCE
DSP ENOH USOH USOH ESSIEN AND DAVID EFFIOM a.k.a. David Effiong, between 3rd August 2007 and 9th August 2007 at Oceanic Bank Plc, Ikot Ekpene Road, Uyo Judicial Division conspired to commit a felony to wit: stealing.
STATEMENT OF OFFENCE COUNT II
CONSPIRACY TO EFFECT AN UNLAWFUL PURPOSE Contrary to Section 556(1)(f) of the Criminal Code Cap 38 Vol. II Laws of Akwa Ibom State of Nigeria 2000.
PARTICULARS OF OFFENCE
DSP ENOH USOH USOH ESSIEN AND DAVID EFFIOM a.k.a. David Effiong, between 3rd August 2007 and 9th August 2007at Skye Bank Plc, Nwaniba Road, Uyo in Oyo Judicial Division conspired to commit a felony to wit: stealing.
STATEMENT OF OFFENCE COUNT III
STEALING Contrary to Section 408 of the Criminal Code Cap 38 Vol. II Laws of Akwa Ibom State of Nigeria 2000.
PARTICULARS OF OFFENCE
DAVID EFFION a.k.a David Effiong and UNEEPTEE POWER NIGERIA LTD. between 30th April 2007 and 10th May 2007 at Zenith Bank Plc, Plot 11 Abak Road, Uyo, in Uyo Judicial Division stole the aggregate sum of Two Hundred and Forty-Eight Million, Four Hundred Thousand Naira (N248,400,000.00) the property of Akwa Ibom State Government.
I have perused the proof of evidence; i.e. the statements of the witnesses of pages 6 – 24 of the record of the appeal as well as copies of documents marked as Exhibits attached to the information, carefully and on its first appearance, on its face and of the first instance, the commission of the offences the Appellant was charged with above, has been disclosed, and an ex facie connection and link with the Appellant, shown. From the charges and the proof of evidence contained in the information preferred against the Appellant, firm ground has been shown to exists which makes it worthwhile, for proceeding with the trial of the Appellant for him to offer explanations to meet the facts and evidence disclosed in the information.
Undoubtedly, a prima facie case is shown by the proof of evidence to justify and warrant proceeding with the trial of the Appellant for the offences he was charged with in the information and I do not hesitate to so find. For that reason, the High Court was right in the finding that a prima facie was disclosed against the Appellant and to proceed with the trial against him as the information is not liable to be quashed.
In the result, I resolve the issue against the Appellant and in favour of the Respondent for the reason set out above.
On the whole, since the two (2) issues submitted for decision in the appeal have been resolved against the Appellant, the appeal is lacking in merit and fails. It is dismissed.
The Ruling of the High Court delivered on the 2/6/2009 in the charge against the Appellant is hereby affirmed. The High Court shall proceed with the trial of the Appellant for the offences he was charged with in the information preferred before it.
UZO I. NDUKWE-ANYANWU, J.C.A.: The facts of this case is as set out by my learned brother Mohammed Lawal Garba, JCA in the lead judgment. I have no difficulty in agreeing with his reasoning and conclusions. I have nothing more to add. This appeal lacks merit. It is therefore dismissed. I abide by all the consequential orders contained in the lead judgment.
CHIMA CENTUS NWEZE, J.C.A.: My noble Lord, Garba JCA, obliged me with the draft of the leading judgment just delivered now. His Lordship has, admirably, resolved all the issues put forward for the determination of this appeal.
Nigerian courts have, approvingly, adopted the definition of the phrase “prima facie” case: a definition which was, ably, put forward by the Indian courts in Sher Singy v Jitendranathsen (I931) I.L.R. 59 Calc 275, see per Abbot FJ in Ajidagba v Police (1958) 3 FSC 5.
In the view of the courts, evidence discloses a prima facie case when it is such that if un-contradicted and if believed, will be sufficient to prove the case against the defendant, Ohwovoriole v FRN [2003] 2 NWLR (Pt 803) 176; [2003] 1 SC [Pt 1] 1; (2003) LPELR-SC.392/2001; Ajiboye v State [1994] 8 NWLR (Pt 364) 587; Ekwunugo v FRN [2008] 15 NWLR (Pt.1111) 630; [2008] 7 SC 196; Tongo v COP (2007) LPELR-SC.105/2000; Abacha v State [2001] 3 NWLR [Pt 699) 35; Daboh v State [1977] 5 SC 197.
I, therefore, agree with the leading judgment that the lower court was right in its finding that a prima facie case was disclosed against the appellant in this appeal. It is for this, and the more detailed, reasons in the leading judgment that I, too, endorse the leading judgment’s affirmation of the lower court’s ruling of June 2, 2009. I abide by the consequential orders in the said leading judgment.
Appearances
Joe Agi SANFor Appellant
AND
Ekpenyong E. Ntekim, Hon. Attorney-General & Commissioner for Justice, Akwa Ibom StateFor Respondent
