MRS. GBONJUBOLA BALOGUN v. FEDERAL REPUBLIC OF NIGERIA
(2015)LCN/7773(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of February, 2015
CA/I/367/2013
RATIO
APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES FOR DETERMINATION IN AN APPEAL ARE DISTILLED FROM THE GROUNDS OF APPEAL
It is the law that issues for determination in an appeal are distilled from the grounds of appeal. That is why, any ground of appeal from which no issue is distilled is deemed abandoned, and should consequently be struck out. See Araka v. Ejeagwu (2000) 12 S.C. (Pt.1) p.99; and Unity Bank Plc & Anor v. Bouari (2008) 2 -3 S.C. (Pt.II) p.1 per. HARUNA SIMON TSAMMANI, J.C.A.
EVIDENCE: INFORMATION AND THE PROOF OF EVIDENCE; HOW THE COURT DETERMINES AN APPLICATION TO QUASH THE INFORMATION, THE MATERIALS THAT AN INFORMATION AND THE PROOF OF EVIDENCE SHOULD CONSIST OF
However, before their arraignment, the two accused persons, filed two separate motions seeking an order of the court below, to quash the information on the grounds stated on the body of the motion paper, which had earlier been reproduced in the course of this judgment.
Now, in an application such as this, the duty of the trial court is to take a cursory look at the proof of evidence so as to determine if facts have been raised which appear in law, to constitute an offence or offences known to the law. See Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria. In the determination of the issue, the trial Court has no duty to make any investigation, as investigation is not the duty of the courts, but only to determine if the facts are provable, for once the facts as disclosed by the proof of evidence tend to bring the conduct of a person within the purview of acts prohibited by Law, it will be sufficient to proceed to trial. Thus, the information is a comprehensive document consists of the materials which will guide the accused, the prosecution and indeed the court at the trial. That is why, an information and the proof of evidence should consist of the following materials.
(a) The charge which consists of the statement of the offence, and particulars of the offence;
(b) Statement(s) of the prosecution witness or witnesses;
(c) The statement or statements of the accused person or persons;
(d) The list of Exhibits, if any; and
(e) All other relevant documents that the prosecution intends to rely on at the trial.
For this, see Ralph Uwazuruike & Ors. v. The Attorney-General of the Federation (2013) LPELR-2039(S.C). per. HARUNA SIMON TSAMMANI, J.C.A.
EVIDENCE: INFORMATION AND PROOF OF EVIDENCE; WHETHER , AN INFORMATION AND THE PROOFS OF EVIDENCE MUST DISCLOSE ON ITS FACE THAT A CRIME HAS BEEN COMMITTED AND THAT THE ACCUSED IS LINKED WITH THE COMMISSION OF THE OFFENCE
In the case of Nyame v. F.R.N. (2010) 7 NWLR (pt.1193) p.344, the Appellant, in that case, had filed a Motion on Notice before the trial court seeking an order quashing all the forty-one (41) counts charge preferred against him for failure to disclose a prima facie case against him and for want of jurisdiction, and competence by the court to adjudicate on the case as constituted. The application was brought on the grounds, inter alia, that the written statement of the witnesses and/or proofs of evidence attached to the charge before the court did not disclose certain of the offences against him. Therein, Adekeye, JSC held at p.391 paragraphs F – G as follows:-
“What the information must disclose at this stage is certainly not the guilt of the accused but a prima facie case to answer. At that stage of deciding whether to prefer a charge, the prosecutor is not obliged to decide as trial Judge should, whether-the available evidence is cogent enough to justify a conviction.”
In the same vein, in the case of Ilechukwu v. F.R.N. (2009) 16 NWLR (pt.1167) p.255, Dongban-Mensem, JCA held at page 264 paragraph G that:-
“A determination whether a prima facie case has been disclosed is not one of declaring guilt or innocence. It is a mere declaration that grounds exist for further inquiry. [Ref. Adebayo Adeyemi v. The State (1991) 6 NWLR (pt.195) p.1; F.E. Odido v. The State (1993) 1 NWLR (pt.369) p.88 and Olu Onagoruwa v. The State (1993) 7 NWLR (pt.3030) p.49, etc.” per. HARUNA SIMON TSAMMANI, J.C.A.
PRACTICE AND PROCEDURE: PRIMA FACIE CASE; THE MEANING OF THE TERM A PRIMA FACIE CASE
It is instructive to note that My Lord Ejiwunmi, JSC in the same case of Ohwovoriole v. F.R.N. (supra) at p.176 while citing Lort-Williams, J who had relied on the case of Sher Singh v. Jitendranathsen (1931) I.L.R. 59 Calc. 275, stated thus:-
“What is meant by a prima facie case? It only means that there is ground for proceeding… But a prima facie case is not the same as proof which comes later when the court has to find whether the accused is guilty or not guilty “… and” the evidence discloses a prima facie case when it is shown that if uncontradicted and if believed it will be sufficient to prove the case against the accused.”
My Lord Nnamani, JSC (of blessed memory) had held in the case of Ikomi v. State (1986) 3 NWLR (pt.28) p.340, that in determining whether a prima facie case has been made, the judge ought to be satisfied that a prima facie case has been established on the proofs of evidence and that a challenge to the information or charge, as in the instant case, can only be successfully established by showing that no prima facie case could have been made on the proof of evidence put before the judge. That the issue is not whether the evidence is sufficient to ground a conviction, but all that is necessary is whether the evidence discloses a prima facie case, even if weak, against the accused person.
Similarly, in the case of Abacha v. State (2002) 11 NWLR (pt.779) p.437, the Supreme Court adopted the definition of prima facie case as enunciated in the case of Sher Singh v. Jitendranathsen (supra), which was quoted with approval by the Federal supreme court in Ajidagba v. I.G.P. (1958) S.C.N.L.R. P.60. In Duru v. Nwosu (1989) NWLR (Pt.113) p.24 at 43, Nnamami, JSC also defined the phrase “prima facie” case in these words:-
“… “There is ground for proceeding”. In other words, that something has been produced to make it worthwhile to continue with the proceeding. On the face of it, “suggests that evidence produced so far indicates that there is something worth looking at.” per. HARUNA SIMON TSAMMANI, J.C.A.
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
MUDASHIRU N. ONIYANGI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
Between
MRS. GBONJUBOLA BALOGUN Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Oyo State High Court of Justice, sitting at Ibadan, wherein the learned trial Judge, A.O. Boade, J dismissed the Appellant’s motion praying the information preferred against him be quashed on the ground that the charge does not disclose any prima facie case against him.
The Appellant and her husband, Dr. Kola Balogun were charged before the court on a three count charge of holding an indirect private interest in a contract on account of public service contrary to and punishable under Section 12 of the I.C.P.C. Act, 2000; soliciting money as reward for using influence to procure a contract with a public body, contrary to and punishable under Sections 22(2)(a) and 22(6); and abetment contrary to Section 26(1)(c) and punishable under Section 22(6) of the I.C.P.C. Act, 2000. While the Appellant was charged with counts 1 and 2 on the charge sheet, the Appellant’s husband, Dr. Kola Balogun was charged on the third count of abetment only. On the date fixed for the arraignment of the accused persons, learned counsel representing them, filed two separate motions praying the court to quash the information filed against the two accused persons. The Appellant’s motion was dated the 18th day of October, 2007 and filed same day. By the said motion, the Appellant prayed for the following reliefs:
1. AN ORDER of the Honourable Court quashing counts 1 and 2 of the charge in Charge No. I/4/I.C.P.C/2007 filed against the 1st Accused/Applicant herein for being incompetent and for non-disclosure of any prima facie case against the 1st Accused/Applicant.
2. PENDING the determination of relief one supra, an order of the Honourable Court staying the arraignment of the 1st Accused/Applicant.
The Grounds upon which the Application was predicated are that:
(i) The counts against the 1st Accused/Applicant contained in the charge sheet filed against the 1st Accused/Applicant before the Honourable Court are incompetent in law.
(ii) Further or in the alternative, the charge and the proof of evidence do not disclose any prima facie case against the Accused/Applicant.
In support of the Application was an affidavit of nine (9) paragraphs deposed to by Odusola Omoyemi, a Legal Practitioner assisting Olalekan Ojo, Esq of learned counsel for the Applicant/Appellant. In opposition to the motion, the Respondents filed a six (6) paragraphs Counter-Affidavit deposed to by one Emmanuel Njoba, a Litigation clerk in the office of the Independent Corrupt Practices and other Related Offences Commission (I.C.P.C). Written Addresses were filed and exchanged by the parties, and in a considered Ruling delivered on the 13/10/2011, the learned trial Judge refused to grant the Application and therefore dismissed same. The Appellant who was the Applicant is aggrieved by the decision of the court and has now filed this appeal.
The Appeal was brought vide Notice of Appeal dated the 08/5/2013 and filed the same day. The Notice of Appeal consists of three Grounds of Appeal, which I hereby reproduce below:
GROUND 1
The learned trial Judge erred in Law by holding that the information dated the 31st July, 2007 and filed on 2nd August, 2007 discloses a prima facie case against the 1st Accused/Appellant and thereby came to a wrong conclusion thereby occasioning a miscarriage of justice against the Accused/Appellant.
PARTICULARS OF ERROR
(i) The depositions in the proof of evidence do not disclose the ingredients of the offence with which the Accused/Appellant had been charged.
(ii) The deposition in the proof of evidence filed with the information do not link the accused with the offence the Accused/Appellant is charged.
GROUND 2
The learned trial Judge erred in Law in treating the document titled proof of evidence of Chukwumah Alexander dated 31/07/2007 and filed on 2nd August, 2007 and signed by Enosa Omognibo Esq, Senior Legal Officer with the Independent and Corrupt (sic) Practices Commission and filed along with the Information before the trial court as the deposition of the investigating officer in the case and relying on the contents of the said document to come to the conclusion that the information disclosed a prima case against the 1st Accused/Appellant and thereby came to a wrong decision occasioning a great miscarriage of justice.
PARTICULARS OF ERROR
(i) The document titled proof of evidence of Chukwumah Alexander which was authored by the said Enosa Omoghibo cannot be substituted for the statement or report of the said Chukwumah Alexander, the Investigating Police Officer in the case.
(ii) The author of the evidence titled proof of Evidence of Chukwumah Alexander was not listed as one of the witnesses in the proof of evidence filed along with the information.
(iii) In considering the 1st Accused/Appellant’s motion to quash the charge preferred against the 1st Accused/Appellant, the Court must conjure itself only to the depositions or statements filed along with the information.
GROUND 3
The learned trial Judge erred in Law by holding that the failure of the prosecution to indicate in counts 1 and 2 of the charge that Queens of Apostles Grammar School, Ibadan is a public school is not fatal to counts 1 and 2 in the information filed against the Accused/Appellant when the offences alleged in counts 1 and 2 of the charge can only be committed by a public servant.
PARTICULARS OF ERROR
(i) The offence laid in counts 1 and 2 of the charge are offences that can only be committed by persons in the public service of the Federation, State or Local Government.
(ii) The failure to indicate that the Queen of Apostles Grammar School, Ibadan where the 1st Accused/Appellant is teaching, is a public school, results in counts 1 and 2 of the charge not containing all the ingredients of the offences laid in the said counts.
(iii) Where any charge does not contain the ingredients of the offence charged, such a count is fundamentally bad and is liable to be quashed by the court.
It was stated therein that further grounds of appeal will be filed upon the receipt of the records of proceedings, but no such further grounds were filed as at the time this appeal was heard on the 13/11/2014.
The parties complied with the rules of this court by filing Briefs of Arguments. The Appellant’s Brief of Arguments was dated and filed the 24/09/2014 but deemed filed the 13/11/14. Therein, the appellant formulated two issues for determination as follows:
1. Whether or not the learned trial Judge was right in treating the contents of the document titled “Proof of Evidence” of Chukwumah Alexander dated 31/07/2007 signed by Enosa Omoghibo Esq, Senior Legal Officer with the Independent and Corrupt Practices Commission and filed with the Information as forming part of the proof of evidence in the case and relying on same to come to the conclusion that there is a prima facie case against the Appellant.
(Ground Two).
2. Whether or not the proof of evidence discloses prima facie case against the Appellant as per the 1st and 2nd counts 1st laid in the charge dated 31/07/2007 and filed on 02/08/2007 before the lower court. (Ground One).
It is the law that issues for determination in an appeal are distilled from the grounds of appeal. That is why, any ground of appeal from which no issue is distilled is deemed abandoned, and should consequently be struck out. See Araka v. Ejeagwu (2000) 12 S.C. (Pt.1) p.99; and Unity Bank Plc & Anor v. Bouari (2008) 2 -3 S.C. (Pt.II) p.1. In this appeal, the two issues distilled for determination by the Appellant are stated to be formulated from Grounds Two and One respectively. It therefore means that no issue has been distilled from Ground Three. That being so, Ground 3 is deemed abandoned and is liable to be struck out.
Accordingly, I hereby order that Ground 3 on the Notice of Appeal be struck out as having been abandoned.
The Respondent also formulated two issues for determination. Those two issues are similar in scope and con with the issues formulated by the Appellant; the only difference being that they are differently worded.
The issues formulated by the Respondent are:
(a) Whether counts 1 and 2 as drafted does not (sic) disclose a prima facie case against the Appellant warranting this court to call upon her to make an explanation.
(b) Whether the proof of evidence attached to the charge sheet meets up with the requirements of the law or not.
It would be seen, and as earlier stated that, the issues formulated by the parties are essentially the same in con and scope. In that respect, I propose to adopt the issues formulated by the Appellant in the determination of this appeal. I shall consider the two issues together, the Appellant having done so.
In arguing this appeal, learned counsel for the Appellant began by stating that, the jurisdiction and power of the court to quash any information for failure to disclose a prima facie case against the accused is well recognized in our jurisprudence. That, the judicial powers of the court is usually exercised so as to prevent an accused person from being oppressed either directly or indirectly through being subject to the rigours and trauma of a criminal trial, where it is clear from the totality of the materials in the proof of evidence that the accused is not or cannot be sufficiently linked with the offence or offences he is alleged to have committed. That in such circumstances, the law recognises the right of the person accused of having committed an offence, to move the trial court for the quashing of the information.
On the meaning of prima facie case, learned counsel referred to the cases of Abacha v. The State (2002) 11 NWLR (Pt.779) p.437 at 486 and 495, and Okoro v. The State (1988) 12 SCNJ; (1988) 5 NWLR (Pt.94) p.255. Learned Counsel then submitted that, the entire proof of evidence must be read together to determine whether or not they disclose any prima facie case. That the evidence which the prosecution may want to adduce at the trial is irrelevant to the determination of the issue, and that deposition in the Counter-Affidavit filed in opposition to the motion to quash the information, or contents of police diaries or investigation report which are not part of the proof of evidence filed along with the information at the time consent for the preferment of the indictment was granted cannot be relied upon or utilized to determine the existence or otherwise of a prima facie case. The case of Ohwovoriole v. F.R.N. (2003) FWLR (Pt.141) p.2019 at 2048 was cited in support.
See also Nyame v. F.R.N. (2010) 7 NWLR (Pt.1193) p.344; Iyabo Obasanjo-Bello v. F.R.N. (2011) 10 NWLR (pt. 1256) p. 605.
It was further contended by learned counsel for the Appellant that, the document titled ‘PROOF OF EVIDENCE’, dated 31st July, 2007, which was signed by Enosa Omoghibo Esq, Senior Legal Officer with the Independent Corrupt Practices and other Related Offences Commission, and which is contained at pages 7 and 8 of the record of appeal is not one of the documents that can be relied upon by the trial court in coming to the conclusion that there is a prima facie case against the Appellant, because:
(i) The said document is not a written statement or deposition of any prospective witness or any of the accused persons.
(ii) The document does not qualify as an Investigation Report or a case diary by an Investigating Officer.
(iii) The document is not the report of an expert in respect of a matter in which expert’s report is recievable in evidence.
Learned counsel referred to the finding of the learned trial Judge at page 124 of the records while dealing with the question of relevance of the said document, to submit that, the fact that something has become common practice does not and cannot mean that it has the force of law or that it is permitted or sanctioned by the law. The dictum of Oguntade, JSC in Okafor v. Nweke (2007) (no proper citation supplied) was cited in urging us to hold that, the lower court gravely erred in law in relying on the contents of the document titled “Proof of Evidence” at pages 7 and 8 of the records, in the resolution of the issue whether or not the information discloses prima facie case against the Appellant.
Learned Counsel for the Appellant then cited the cases of Egbe v. State (1980) 1 N.C.R. 341 at 323 – 324 and R v. Jones (1974) 59 C.A pp. R at 126, to submit that, in considering an application to quash an information, the court is limited to the depositions and other relevant documents in the proof of evidence, and not to any depositions in any Counter-Affidavit or the evidence which the prosecution may intend to adduce at the trial of the case. That in the determination of the issue, the trial court is enjoined to critically look at the statements or depositions of prospective witnesses in the proof of evidence vis-a-vis the ingredients of the offence the appellant has been charged with. It was therefore contended that, in the instant case, the materials in the proof of evidence do not disclose the essential ingredients of the offence of aiding and abetting the commission of the crime of solicitation for money as a reward for using influence to procure contract. Learned Counsel then submitted that, the essential elements of the offence of solicitation under Section 22(2)(a) of the Corrupt Practices and Other Related Offences Act are:
(a) The charge must allege that the accused is a Public Servant or Officer.
(b) That the accused acted without lawful authority or reasonable excuse.
It was therefore submitted that, the act of the Appellant in soliciting any advantages as an inducement or reward must be on account of the Appellant giving or using influence in or having given assistance or used influence in the promotion, execution or procuring any contract or subcontract with a public body. That, the charge did not state that the Queen of Apostle Grammar School is a public school, so as to make the Appellant a public servant. In otherwords, that there is nothing in the proof of evidence that Queen of Apostle Grammar School, Ibadan is a School owned by either the Oyo State Government or any Local Government in Oyo State. That the lower court cannot take judicial notice of the fact that the said Grammar School is a public school in Oyo State by virtue of Section 74 of the Evidence Act. Furthermore, that as regards count one, the depositions in the statement attached to the proof of evidence do not disclose the alleged interest or share of the Appellant in the contract referred to in the said count one. Learned Counsel then submitted that, the information filed against the Appellant does not disclose a prima facie case against the Appellant as stated in the charge.
We were then urged to resolve the two issues in favour of the Appellant and to allow the appeal.
Arguing the Appeal, learned counsel for the Respondent reproduced the two counts charge preferred against the Appellant and further cited the cases of Ikomi & Ors v. The State (1986) 1 N.S.C.C. p.730 at 731 and Mohammed Sani Abacha v. The State (2002) 11 NWLR (Pt.779) p.437 at 486 and 496, wherein the Supreme Court raised and answered the question of what a prima facie case means at the stage of filing an information and arraignment of the accused person in court. He then contended that, what should agitate the mind of the court at that stage is how to determine when information can be said to disclose a prima facie case. He also referred to the case of Mohammed Sani Abacha v. The State (supra), where the Supreme Court held that:
“In deciding whether a prima facie case exists for the accused to answer in an information for indictment, the authorizing Judge, or the Judge before whom the indictment is placed must look at the proof of evidence attached to the information in totality and not pick words out of con”;
to urge us to hold that the information filed in this case discloses a prima facie case against the Appellant. That in doing that, we should hold that, the charge and the attached proof of evidence disclose an offence known to law, and that they link the Appellant to the offences disclosed and charged. That the offences charged in counts one and two, which are “knowingly holding an indirect private interest in a contract made on account of public service” and “soliciting money as a reward for using influence to procure contract with a public body”, are offences defined and punishment prescribed under Sections 12 and 26(2)(a) and 22(6) of the Corrupt Practices and Other Related Offences Act, 2000, which is an extant Law. It was therefore submitted that, a combined reading of the charge and the particulars of the offences stated therein, reveal that the contract was awarded by a public body i.e. Lagelu Local Government of Oyo State. Learned Counsel then relied on the statements of the Appellant and her co-accused included in the proof of evidence, to further submit that, other pieces of evidence as contained at pages 9 – 27 of the record of appeal, all point to the fact that the Appellant was sufficiently linked to the offences committed. That the Appellant should be called upon to explain how she got the contract from Lagelu Local Government while being a public officer – a teacher in the Queen of Apostles Grammar School, Ibadan; how she came to be the business associate of one Bayo Dele and how the contract sum payable to Bayo Dele found its way to the home of the Appellant and her husband.
On the contention of the Appellant that, the information failed to disclose whether the Queen of Apostles Grammar School, Ibadan is a public school, it was submitted by learned counsel for the Respondent that, that assertion by the Appellant is misconceived as it runs foul of the principles of law enunciated by the Supreme Court in the cases of Ikomi v. The State and Mohammed Sani Abacha v. The State (both supra). That the issue is one that will be determined at the conclusion of trial, and if at the end of trial the prosecution fail to prove that the Appellant is a public officer, then he would be titled to an acquittal on the ground that an essential ingredient of the offence has not been proved.
That as stated in the case of Faro v. I.G.P. (1964) N.S.C.C. p.4, a charge is not supposed to take the place of evidence to be adduced during trial, but merely serves as notice to the accused of the case he will meet in court.
Learned Counsel for the Respondent further contended that, assuming (which he does not concede) that counts 1 and 2 on the information do not disclose every bit of the particulars of the offences, we should hold that such omission is not material as to mislead the accused.
That it has been decided by a plethora of cases that, where the charge is clear enough as not to mislead the accused, then the charge is good and sustainable in law. That in any case, in all the depositions in the affidavit in support of the motion, there is nowhere the Appellant had contended that she had been misled by the charge against her. While conceding that a trial court has a duty to quash an information at this stage of the proceedings so that no person is forced to undergo a trial which he or she should not have undergone, learned counsel submitted that, the conditions for the exercise of the power to quash do not exist in the instant case.
On whether the proof of evidence attached to the information satisfy the requirements of the law, learned counsel for the Respondent cited Section 341(1) of the Criminal Procedure Act and the case of Mohammed Sani Abacha v. The State (supra), which require that, a law officer should sign an information; as was done by Enosa Omoghibo of counsel.
That contrary to the contention of learned counsel for the Appellant, the signature of Enosa Omoghibo was not appended to the summary of the testimony of the investigator, but to the document titled “Proof of Evidence” as required by Section 341(1) of the Criminal Procedure Act. We were urged to discountenance with the arguments of the Appellant and to find that the case of Okafor v. Nweke (supra) is inapplicable to the facts and circumstance of this case. We were also urged to hold that the signature of the prosecutor – Enosa Omoghibo Esq. is not for the authorship of the summary of the investigating officer (Mr. Chukwuman Alexander) as erroneously contended by learned counsel for the Appellant, but the signature of the law officer as required by law.
Learned Counsel for the Respondent went on to submit that, learned Counsel for the Appellant totally misconceived this kind of evidence, which is merely a summary of evidence of the investigating officer. That investigating officers do not make statements to themselves, but only a summary of what they will say in court at the trial, is what in practice is usually attached to the proof of evidence. He then cited the case of Ozaki v. The State (1990) 1 NWLR (Pt.124) p.92 at 125 paragraphs G-H, to submit that, the rules of evidence stricto sensu is not applicable to such summary of the evidence of an investigating officer, since it is not on oath. That the purpose of such proof of evidence is to aid the court in the exercise of its discretion whether or not to grant consent, and that once the Judge has exercise his discretion one way or the other, such material becomes worthless. He also cited the case of Ohwovoriole v. F.R.N. (2003) 1 S.C. (pt.1) p.1 at 5 to submit that, it is not the position of the law that only the written and signed statements of the prospective witnesses should be attached to the information. That what the law requires at this stage is that sufficient materials be placed before the Judge, so as to enable him decide whether or not to grant consent to prefer a criminal information against the accused person. We were therefore urged to resolve the two issues in favour of the Respondent; and to dismiss the appeal as lacking in merit.
It is apparent on the record of appeal that, the Appellant and her co-accused, who happened to be her husband, were charged before the court below, on an information containing three counts. The record also reveals that the Appellant was charged on counts 1 and 2. Now, Section 77 of the Criminal Procedure Law, (Cap.39) Laws of Oyo State of Nigeria, 2000 stipulates that:
“77. Subject to the provisions of any other enactment, criminal proceedings may in accordance with the provisions of this Law be instituted.
(a) ….
(b) In the High Court –
(i) By information of the Attorney – General of Oyo State in accordance with the provisions of Section 72, and
(ii) By information filed in the High Court after the accused has been summarily committed for perjury by a Judge or Magistrate under the Provisions of Part 31; and
(iii) Repealed
(iv) On complaint whether or not on oath.”
The Criminal Procedure Law of Oyo State (supra) appears to have repealed or abolished Preliminary Inquiry by a Magistrate in respect of indictable offences. That being so, it appears to me that, all indictable offences under the Law in Oyo State, are generally undertaken or tried by way of information by the Attorney – General of Oyo State pursuant to Section 72 of the Criminal Procedure Law (supra). However, the preferment of a charge upon information to the High Court of Oyo State is not restricted to the Attorney – General of Oyo State, as Section 340(1) of the Law stipulates that:-
“340(1). Subject to the provision of this Section an information charging any person with an indictable offence may be preferred by any person before the High Court charging any person with an indictable offence for which that person may lawfully be indicted, and whenever an information has been so preferred, the registrar shall, if he is satisfied that the requirement of the next following Section have been complied with, file the information and it shall thereupon be proceeded with accordingly:
Provided that if the registrar shall refuse to file an information, a Judge, if satisfied that the said requirements have been complied with, may, on the application of the prosecutor or on his own motion, direct the registrar to file the information and it shall be filed accordingly.”
By the above cited provision, it is my view that, apart from the Attorney – General of Oyo State, any other person, may apply to the High Court of Oyo State to prefer an information seeking to charge a person for an indictable offence. It therefore means that the Independent Corrupt Practices and Other Related Offences Commission (I.C.P.C.) has the power to file or prefer an information charging any public officer with an indictable offence committed under the I.C.P.C. Act. This view of mine is fortified by Section 61 of the said I.C.P.C. Act which stipulates that, every prosecution for an offence under this Act or any other law prohibiting bribery, corruption and other related offences shall be deemed to be done with the consent of the Attorney – General. The I.C.P.C. therefore, in compliance with the Law, wrote a letter to “The Chief Registrar, High Court of Justice of Oyo State, Ibadan”, captioned “APPLICATION FOR CONSENT AND ARRAIGNMENT, FEDERAL REPUBLIC OF NIGERIA VS. MRS. GBONJUBOLA BALOGUN & DR. KOLA BALOGUN”. The said application sought pursuant to Section 340(2)(b) of the Criminal Procedure Law of Oyo State consent of the Oyo State High Court to prefer an information against the Appellant and her co-accused. Accordingly, the Hon. Justice A. L. Akintola of the Oyo State High Court, sitting at Ibadan, gave his consent to the I.C.P.C., to prefer the criminal information against the Appellant and his co-accused.
However, before their arraignment, the two accused persons, filed two separate motions seeking an order of the court below, to quash the information on the grounds stated on the body of the motion paper, which had earlier been reproduced in the course of this judgment.
Now, in an application such as this, the duty of the trial court is to take a cursory look at the proof of evidence so as to determine if facts have been raised which appear in law, to constitute an offence or offences known to the law. See Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria. In the determination of the issue, the trial Court has no duty to make any investigation, as investigation is not the duty of the courts, but only to determine if the facts are provable, for once the facts as disclosed by the proof of evidence tend to bring the conduct of a person within the purview of acts prohibited by Law, it will be sufficient to proceed to trial. Thus, the information is a comprehensive document consists of the materials which will guide the accused, the prosecution and indeed the court at the trial. That is why, an information and the proof of evidence should consist of the following materials.
(a) The charge which consists of the statement of the offence, and particulars of the offence;
(b) Statement(s) of the prosecution witness or witnesses;
(c) The statement or statements of the accused person or persons;
(d) The list of Exhibits, if any; and
(e) All other relevant documents that the prosecution intends to rely on at the trial.
For this, see Ralph Uwazuruike & Ors. v. The Attorney-General of the Federation (2013) LPELR-2039(S.C).
As stated earlier, it is the documents listed above, that a trial court will look at in the discharge of its onerous judicial duty of determining whether or not a prima facie case has been disclosed against the accused person from the proof of evidence. Those documents in their totality are what is referred to as the proof of evidence. In other words, those documents listed above, and referred to as proof of evidence are the materials to be considered in the determination of the issue. That being so, a person charged with an offence may bring an application that the charge be quashed on the ground that it is defective for one reason or the other, or that the proof of evidence do not disclose a prima facie case against him sufficient to warrant calling upon him to provide some explanation or even undergo the rigour of a full trial. See Chief Lere Adebayo v. The State (2012) LPELR-9494(CA) per Kekere-Ekun, JCA (as he then was).
In the instant case, the Appellant questioned the legality of the learned trial Judge’s treating of the document titled “Proof of Evidence of Chukwumah Alexander dated 31/07/2007” as part of the material to be used in the determination of the issue. It was therefore contended that, such document is not one of the documents that can be relied upon by the court in coming to the conclusion that there is a prima facie case against the Appellant because, it is not a written statement or deposition of any prospective witness or that of the Appellant; and that it is neither an Investigation Report nor the Report of an Expert. In the determination of this issue, the learned trial Judge had held at page 127 of the record of appeal as follows:
“There is the contention that there is no prima facie case against the 1st accused person, having regard to the proof of evidence provided by the prosecution in respect of the case. The Applicant’s-counsel referred to the summary of the proposed evidence of Chukwumah Alexander, an investigator with the I.C.P.C. office, Abuja, who was the person who signed the charge sheet.
It is common practice to summarise the evidence of the witness the prosecution intend to call at the hearing of the case in the proof of evidence. This is-what was done in respect of the evidence of Chukwumah Alexander who investigated the criminal matter. The witness does not need to sign the summary of his evidence-as stated in the proof of evidence. As an investigator of the crime, he did not need to make a written statement like other witnesses”.
I have carefully studied the record of appeal. After a careful consideration, I am of the view that, the findings and conclusion of the learned trial Judge reproduced above can hardly be faulted. Particularly, I find from pages 1 – 27 of the records, the application for consent to prefer the information against the Appellant and his co-accused, the charge sheet, list of the prosecution witnesses and the statements of those witnesses, a copy of the Petition Written by the complainant (Bayo Dele) to the commission and the statements of the accused persons, which includes that of the Appellant on record. Those documents are the materials which qualify as the proof of evidence to be relied upon by the court in the determination of whether a prima facie case of the offences for which the Appellant has been charged have been disclosed. The document titled “Proof of Evidence” at pages 7 – 8 of the record of appeal, and signed by Enosa Omoghibo Esq, a Senior Legal Officer with the I.C.P.C. show clearly that it is merely a summary of what Chukwumah Alexander, who investigated the case, would say at the trial. In other words, that document is relevant at the stage of determining whether or not prima case has been disclosed, as a document that reveals clearly what Chukwumah Alexander will say at the trial as a witness. It is indicative of the fact that the said Chukwumah will be called to testify as to his investigation at the trial; the fact that he was not named on the List of witnesses attached to the information is of no moment, as no law to my knowledge states that only witnesses named on the List of witnesses will qualify to testify. In any case, Chukwumah Alexander has been named as number 5 on the List of witnesses. The opening and closing statements in the document is clear testimony that the contents of the document, is a summary of what Chukwumah Alexander would say at the trial.
It is my view, and as rightly pointed out by the learned trial Judge that it is not the practice for an investigator to make a recorded statement, as he cannot give a statement to himself. What such an investigator will say at the trial is usually put into writing in the case diary or an investigation Report. In my view, it is sufficient, for the purpose of an application to prefer an information; if a summary of what such an investigator would say, is reduced into writing. The purpose is to give the trial court a picture of the investigation he has conducted and any relevant material the investigation might have revealed. I am therefore of the opinion that the type of documents or materials required are not restricted to the statements of the witnesses, but any other material which the prosecution intends to rely on will suffice. I also hold that the Appellant is misconceived on the issue, as a summary of what the investigator would say at the trial would qualify as one of the materials the court would rely on in the determination of whether or not the proof of evidence have disclosed a prima facie case against the accused. In any case apart from the document titled “Proof of Evidence” at pages 7 – 8 of the records, the learned trial Judge relied on other materials in arriving at his decision. The learned trial Judge had stated at page 127 of the records as follows:
“The accused person’s counsel conveniently referred to the summarised intended evidence of Chukwumah Alexander, who is one of the operatives of the I.C.P.C. who investigated the case, without giving much consideration to the written statements of the witnesses whose statements are particularly material to the prosecution of the case, including that of Mr. Bayo Dele, who actually wrote the petition that led to the investigation into the criminal matter.”
The learned trial Judge observed as above, after holding in the preceding paragraph that, there are four other witnesses on the List whose statements were not summarised in the document titled “Proof of Evidence” but attached to the information.
I also find it pertinent to point out that at this stage of the proceedings, the trial has not commenced. In fact, the plea of the Appellant has not been taken, so the issue of admissibility or evidential value of the document is not in issue. The purpose of attaching the documents to the application for consent is merely to supply the materials which the prosecution intend to use at the trial for the purpose of discharging the burden cast on it. Such materials are merely attached to aid the court in arriving at a decision, whether or not a prima facie case has been disclosed against the accused person, such as to warrant going into a full trial. The learned trial Judge was therefore on course in relying on the document titled “Proof of Evidence” among others in arriving at a decision in respect of the motion before him, to quash the information.
As stated earlier, the Appellant had brought this application, praying the court below, to strike out or quash counts 1 and 2 as relates to her for not disclosing prima facie case against her. It is the law that, if at the commencement of a trial or the prosecution of a charge upon information, the information or charge does not disclose facts disclosing a prima facie case against the accused person, the charge or information must be quashed. At this stage, all the court is required to do, is to look at the proof of evidence in order to see whether from the facts contained in the proof of evidence, the crime alleged against the accused has been revealed therein, and that the accused has been linked with its commission, which will then necessitate that he faces trial thereon. This is because, even if the depositions and statements attached to the information have disclosed that an offence has been committed, an accused person cannot be put on trial if there is nothing on the information which link him with that offence.
The pertinent question to be unlocked would therefore be, whether from the depositions and other proofs of evidence, it is probable that the accused person is linked with the offence contained on the information.
In the case of Nyame v. F.R.N. (2010) 7 NWLR (pt.1193) p.344, the Appellant, in that case, had filed a Motion on Notice before the trial court seeking an order quashing all the forty-one (41) counts charge preferred against him for failure to disclose a prima facie case against him and for want of jurisdiction, and competence by the court to adjudicate on the case as constituted. The application was brought on the grounds, inter alia, that the written statement of the witnesses and/or proofs of evidence attached to the charge before the court did not disclose certain of the offences against him. Therein, Adekeye, JSC held at p.391 paragraphs F – G as follows:-
“What the information must disclose at this stage is certainly not the guilt of the accused but a prima facie case to answer. At that stage of deciding whether to prefer a charge, the prosecutor is not obliged to decide as trial Judge should, whether-the available evidence is cogent enough to justify a conviction.”
In the same vein, in the case of Ilechukwu v. F.R.N. (2009) 16 NWLR (pt.1167) p.255, Dongban-Mensem, JCA held at page 264 paragraph G that:-
“A determination whether a prima facie case has been disclosed is not one of declaring guilt or innocence. It is a mere declaration that grounds exist for further inquiry. [Ref. Adebayo Adeyemi v. The State (1991) 6 NWLR (pt.195) p.1; F.E. Odido v. The State (1993) 1 NWLR (pt.369) p.88 and Olu Onagoruwa v. The State (1993) 7 NWLR (pt.3030) p.49, etc.”
What emerges from the decided cases is therefore that, where the prosecution seeks to prosecute a person for an offence, they must show by the proofs of evidence that an offence has been committed and that the accused person was linked with the commission of the offence. In other words, the proofs of evidence must disclose on its face that a crime has been committed and that the accused is linked with the commission of the offence either alone or in concert with others. In a nutshell, the proofs of evidence attached to the information must disclose a prima facie case against the accused. Thus in the case of Grange v. F.R.N. (2010) 7 NWLR (pt.1192) p.135, the Appellant and eleven others were arraigned before the High Court of the Federal Capital Territory, Abuja on a 54 counts charge of conspiracy to commit criminal breach of trust and dishonestly receiving money contrary to Sections 97, 315 and 317 of the Penal Code. The Appellant by motion on notice sought for an order quashing the indictments contained in all the counts on the grounds (a) the offences she was charged with were not disclosed by the statement of the witnesses listed by the prosecution and proof of evidence attached to the charge (b) that no offence was disclosed against her by the proof of evidence and (c) that the proofs of evidence and statement of witnesses did not disclose any prima facie case against her. In determining the issue on appeal, Abba Aji, JCA held at p.163 of the report as follows:-
“In considering an application of the nature, to quash the charges against an accused person, and in the instant case, the Appellant on the ground that the proofs of evidence and statement of witnesses did not disclose a prima facie case against the Appellant, the court must be guided by the following well laid down principles:
1. The court must confine itself to the proofs 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 not be a conclusive proof of the accused person’s guilt which is a matter to be determined of (sic) the substantive trial; and
3. Where there is no sufficient linkage of the accused to the offence allegedly committed, the court would be on good ground to quash the charge against the accused person. See Abacha v. State (supra);
Ohwovoriole v. F.R.N. (supra) and Ubanatu v. C.O.P. (supra).”
Those indeed are the principles that would guide a court in determining one way or the other, whether a prima facie case has been established against an accused person as would warrant his standing trial for the offence he is charged with. As stated earlier, in determining the issue, the court will have regard to the entire proofs of evidence attached to the charge. The words contained therein must be read in their con and given their literary meaning. In other words, an interpretation which will give the words contained in the statements of witnesses a meaning not intended by such statements should be avoided, See Aduku v. F.R.N. (2009) 9 NWLR (pt.1146) p.370. This is so because at that stage such statements and other proofs of evidence are yet to be tested by the rigour of a full trial.
Before concluding on the matter, the issue to be resolved or answered is; what is meant by a prima facie case. My research reveals that there is no statutory definition of the phrase “prima facie case”. At least I have not come across such a statute. The definition I came across came from case law as enunciated by the Supreme Court and the Court of Appeal. I however found that most of the cases in which the phrase “prima facie case” was propounded arose from submissions of no case to answer. In the determination of this appeal, I have been careful to see that this application to quash the information filed against the appellant arose before the commencement of trial as no evidence had been led.
This observation is necessary in view of the dictum of Ejiwunmi, JSC in his concurring judgment in the case of Ohwovoriole v. F.R.N. (supra) wherein My Lord said:-
“The principles set down in the above cases were with due respect set down deliberately to emphasise that the case relied upon by the learned trial Judge becomes applicable on the trial of criminal cases only when evidence had been led at the trial and when the prosecution had closed its case. At that stage, the defendant may, if he so wishes, make a submission to the effect that the prosecution by the evidence led in support of the charge had not established a prima facie case to call upon him to make a defence on the said charge… However, whereas in the instant case, the prosecution had not called any evidence and had only filed various statements in support of the charge seeking leave to prosecute the accused, then different principles apply. Therefore, whereas in this case, the defence is contending that the offences alleged in the charge have not disclosed by the statements and proof of evidence before the court, then the court has to consider the position upon the principle laid in Ikomi v. The State (1986) 3 NWLR (Pt.28) P.340,”
It is instructive to note that My Lord Ejiwunmi, JSC in the same case of Ohwovoriole v. F.R.N. (supra) at p.176 while citing Lort-Williams, J who had relied on the case of Sher Singh v. Jitendranathsen (1931) I.L.R. 59 Calc. 275, stated thus:-
“What is meant by a prima facie case? It only means that there is ground for proceeding… But a prima facie case is not the same as proof which comes later when the court has to find whether the accused is guilty or not guilty “… and” the evidence discloses a prima facie case when it is shown that if uncontradicted and if believed it will be sufficient to prove the case against the accused.”
My Lord Nnamani, JSC (of blessed memory) had held in the case of Ikomi v. State (1986) 3 NWLR (pt.28) p.340, that in determining whether a prima facie case has been made, the judge ought to be satisfied that a prima facie case has been established on the proofs of evidence and that a challenge to the information or charge, as in the instant case, can only be successfully established by showing that no prima facie case could have been made on the proof of evidence put before the judge. That the issue is not whether the evidence is sufficient to ground a conviction, but all that is necessary is whether the evidence discloses a prima facie case, even if weak, against the accused person.
Similarly, in the case of Abacha v. State (2002) 11 NWLR (pt.779) p.437, the Supreme Court adopted the definition of prima facie case as enunciated in the case of Sher Singh v. Jitendranathsen (supra), which was quoted with approval by the Federal supreme court in Ajidagba v. I.G.P. (1958) S.C.N.L.R. P.60. In Duru v. Nwosu (1989) NWLR (Pt.113) p.24 at 43, Nnamami, JSC also defined the phrase “prima facie” case in these words:-
“… “There is ground for proceeding”. In other words, that something has been produced to make it worthwhile to continue with the proceeding. On the face of it, “suggests that evidence produced so far indicates that there is something worth looking at.”
From the above stated principles, I understand the term prima facie case to mean that, from the facts as disclosed in the proofs of evidence as contained in the information, there is evidence that the crime the accused is charged with has been committed, and the accused is linked with the crime allegedly committed. At this stage, unlike at a stage where a no case submission is made and the trial court has to decide from the evidence adduced or led before it, whether a prima facie case has been established, the court is only called upon to carefully scrutinise the proof of evidence attached to the charge, so as to see whether the crime alleged has been committed and that the evidence links the accused (Appellant) with the offence charged. In determining the issue, the court should always bear in mind that at this stage, the proofs of evidence are yet to be tested in the rigour of cross-examination during the trial. The issue should thus be determined with the view to determine whether the proof of evidence to be relied upon at the trial, has revealed facts which make it just that the accused person should stand trial thereon. At this stage it is not the business of the court to determine whether or not the proofs of evidence would ultimately lead to conviction of the Appellant.
Now, learned counsel for the Appellant has argued that, the learned trial Judge did not properly examine the proof of evidence as relate to the allegations against her. He contended that, in the determination of the question, whether or not a prima facie case has been disclosed in respect of the offences the Appellant is accused of having committed, it was necessary to consider or identify all the essential ingredients of the offence.
That the Appellant is alleged to have committed the offences of knowingly holding an indirect private interest in a contract made on account of public service, and soliciting money as reward for using influence to procure a contract with a public body. It was therefore submitted that the necessary ingredients of those offences must be disclosed on the information and proof of evidence, but were not so disclosed by the proof of evidence attached to the application to prefer the information.
The agitation of the Appellant here is that the essential elements of the offences alleged against him were not disclosed by the proof of evidence. That the essential ingredients must be disclosed or vividly captured in the charge. It was therefore submitted that, failure to disclose all the essential ingredients of the offence is fatal to the charge as it makes the charge incompetent and thus liable to be quashed. In the determination of the issue, the learned trial Judge after reproducing the provisions of Sections 12 and 22(2) of the Independent Corrupt Practices and Other Related Offences, Act (supra), went on to hold that:
“It is very clear from the provisions of the Act above that the accused person must be a person employed in the public service or a public servant.
What has been disclosed in the charge against the 1st accused person is that she committed the alleged offence in September 2006 whilst being a teacher in Queen of Apostles Grammar School, Ibadan, without stating expressly that she was then a public servant or that the school is a public school owned by the State Government. Her counsel contended that the omission is fatal to the charge and renders it incompetent. On the other hand, the prosecution’s counsel urged me to make use of Section 166 of the Criminal Procedure Law to save the charge.”
Section 166 of the Criminal Procedure Law of Oyo State was also reproduced by the learned trial Judge, who then proceeded to hold that:
“The particulars of offence clearly states that the 1st accused person committed the alleged offence in September, 2006 whilst being a teacher in Queen of Apostles Grammar School, Ibadan, without expressly stating that she was then a public servant or that the school is a public school. I am of the clear view that the accused person, being a teacher in that school, is not misled by the omission in the charge and the provision of Section 166 of the Criminal Procedure Law could be invoked to save the charge. I therefore hold that the charge cannot be rendered incompetent on that ground.”
It is clear to me that, while the learned trial Judge agreed that there was an omission in the charge in respect of the particulars of the offence, he held that such omission is not fatal, as the omission did not mislead the Appellant, and could therefore be saved by Section 166 of the Criminal Procedure Law (C.P.L.) of Oyo State. The said Section 166 of the C.P.L, Oyo State enacts that:-
“166. No error in stating the offence or the particulars required to be stated in charge and no omission to state the offence or those particulars should be regarded at that stage of the case as material unless the accused was in fact misled by such error or omission.”
While determining in a similar case such as this, My lord Dongban-Mensem, JCA observed as follows:-
“An application to quash a charge is one which if successful can terminate a trial at inception; hence the court must be circumspective in considering such an application. The purpose of the application in most cases is to enable the court to filter the proof of evidence filed to ensure that the accused person is not subjected to the ordeal of a criminal trial with the attendant stigma when there is infact no good reason in law to so proceed. The good reason in law pertains to the disclosure of a known offence in law which must also tend to link the accused person to the alleged commission of the said offence. This is an essential requirement which has its source in the 1999 Constitution of the Federal Republic of Nigeria.”
See the case of Christopher Alao Akala vs. Federal Republic of Nigeria, Appeal No: CA/I/154/2013 delivered on the 15th day of April, 2014 at Ibadan. The case has now been reported as Alao-Akala v. F.R.N. (2014) All FWLR (pt.738) p.850 at 872 paragraphs F – H.
The above cited dictum of my learned brother is very apt in the determination of this case. This is so because, in a trial on information, the consent of a Judge has to be first sought and obtained. The purpose is to ensure that an innocent person is not unnecessarily subjected to the rigours of a full trial for an offence of which there is no sufficient evidence disclosed in the proof of evidence or for which he is not linked either directly or circumstantially with its commission, as to warrant his being put on trial. In determining the matter therefore, the trial Judge should apply his judicial wisdom and knowledge by doing a balancing act, between the need to avoid letting an accused person “off the hook” so to say, at this early stage when the trial has not even commenced, and therefore a consideration of ‘prove’ or ‘no prove’ does not arise; and the need to avoid putting a person to trial on facts disclosed on the proof of evidence which are speculative or based on bare suspicion, but do not disclose any offence as charged nor link the accused person with its commission. Thus, to embark on a trial on such facts would amount to persecution rather than prosecution.
It is therefore necessary that, to determine the existence of a prima facie case at this stage, the proof of evidence must disclose the essential elements of the offence charged. Thus, in the case of Ohwovoriole v. F.R.N. & 3 Ors. (2003) 1 S.C. (pt.1) p.1 at 7, Kalgo, JSC held as follows:-
“There is no doubt that the learned trial Judge has the discretion to grant or refuse leave to prefer the charge but the discretion, as usual, must be exercised judicially and judiciously. In that exercise, he must ensure that he has taken into consideration all the materials placed before him including the relevant law applicable thereto. See U.B.A. Limited v. Stabihu GMBH & Co. KG (1989) 6 S.C. (Pt.1) 22; (1989) 3 NWLR (Pt.110) 374.
In the instant case, the relevant materials placed before the trial Judge for the exercise of his discretion are his proofs of evidence and the written cautionary statement of the accused persons.
These are contained in the 1st volume of the record of appeal from pages 6 – 28. The so called proof of evidence on pages 6 and 7 of the record contained the names of 6 witnesses and merely stated what each witness was going to testify at the trial. In none of them was it shown that the Appellant was involved in conspiring to offer the alleged bribe of N3.5 Million or that he actually gave the said amount as bribe to anybody. Also, on the caution statements of the accused persons including the Appellants on pages 9 – 28, none of the 3 accused persons, now Respondents 2, 3 and 4, said in his statement that the Appellant was involved in any discussion or agreement with him to give the N3.5 Million bribe or took part in actual giving of the said bribe, to any person as alleged in the charge. It was true that the 3rd Respondent stated in his statement that the Appellant was their counsel in the matter, and no more. The Appellant, in his own statement did not deny that the 3rd Respondent was his client in the matter, but he vehemently denied that he discussed the issue of N3.5 Million with anybody and his client did not at any time inform him that he gave the said amount to anybody in connection with this matter. The Appellant also denied discussing the issue of the N3.5 Million with one Chief Adefulu whom he wanted to tarnish his character and image as the reason for framing him in this matter.”
I have quoted extensively from this judgment of the Supreme Court, so as to demonstrate the need for the substance of the proof of evidence to clearly disclose all the essential ingredients of the offence charged. Thus, if upon a consideration of the proof of evidence, which may consist of the statements of witnesses and that of the accused person, the exhibits, if any, and other materials which may include the investigation report, all the ingredient of the offence are not disclosed, the court has a duty to discharge the accused. However, the nature of the element or ingredient omitted in the charge or information must be substantial. See Essien v. C.O.P. (1995) 5 NWLR (Pt.449) p.489 at 449 and Abacha v. The State (2002) 11 NWLR (Pt.779) p.437.
Now, the Appellant was charged with the commission of the offences of knowingly holding an indirect private interest in a contract made on account of public service; and soliciting money as reward for using influence to procure a contract with a public body, which are offences contrary to Section 12 and 22(2) of the Independent Corrupt Practices and Other Related Offences Act (supra). The Charge of knowingly holding an indirect private interest in a contract made on account of public service is founded on Section 12 of the I.C.P.C. Act which stipulates that:
“12. Any person who, being employed in the public service, knowingly acquires or holds, directly or indirectly, otherwise than as a member of a registered joint stock company consisting of more than twenty (20) persons, a private interest in any contract, agreement or investment emanating from or connected with the department or office in which he is employed or which is made on account of public service, is guilty of an offence, and shall on conviction be liable to imprisonment for seven (7) years.”
Before I proceed, I find it necessary to point out that, in a charge under Section 12 of the I.C.P.C. Act (supra) the following vital elements of the offence must be disclosed by the proofs of evidence:-
(a) That the accused person is a person employed in the Public Service;
(b) That he knowingly acquired or held, either directly or indirectly, a private interest in any contract, agreement or investment emanating from or connected with the department or office in which he is employed or is made on account of Public Service; and
(c) That he did not acquire or hold such private interest in the contract, agreement or investment as a member of a registered joint stock company consisting of not more than twenty (20) persons.
It appears to me that this provision of the I.C.P.C. Act, is aimed at punishing public servants who knowingly, otherwise than as shareholders in a registered company, siphon government funds fraudulently through the use of fictitious companies and partnerships for that purpose. Such companies and partnerships are then used as smokescreen by public servants in position of authority to award contracts to themselves. It is my view that, this provision is not intended to penalize public servants who acquire interest in a contract, agreement or investment in a government department or office, otherwise than through such gimmick. That being so, it is desirable that the information or charge should disclose those material or essential ingredients of the offence. I say so because, the purpose of a charge in a criminal trial, is to give notice to the accused person of the case he will meet at the trial. In other words, the purpose of a charge is to enable the accused person understand the reason why he is before a court of law or tribunal. It is therefore essential that the accused person understands the charge against him. See Ndukwe v. LPDC (2007) 5 NWLR (Pt.1026) p.1 and Odeh v. F.R.N. (2008) 13 NWLR (pt.1103) p.1. That is why Section 166 of the Criminal Procedure Act of Oyo State (supra) stipulates that no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or the particulars thereof shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission.
It is obvious, from a careful reading of the charge against the Appellant, that the first count and the particulars thereof, that the material particulars or ingredients of the offences alleged against the Appellant were not stated. For example, it was not stated that the Appellant is a public servant or that the Appellant acquired or held the interest in the contract which emanated from or is connected with the department of office in which she is employed or is acquired on account of her having performed a public service. However, there is no indication that the Appellant was misled by such error or omission. Infact, the Appellant had not even been arraigned, in the sense that, the charges had not been read over to the Appellant nor her plea taken. Furthermore, there is nothing in the entire body of the affidavit in support of the motion wherein it is deposed that the Appellant was misled by such omissions.
Indeed, the Appellant did not state the grounds upon which he sought the quashing of the information. She merely stated that the charge sheet filed is incompetent without stating the reasons that makes the charge sheet incompetent. As stated earlier, the affidavit in support is totally devoid of any reason why the charge should be quashed, especially when the Appellant did not depose that she was misled by the charge. See Agbo v. State (2006) 6 NWLR (Pt.977) p.545 at 577; Ogudo v. State (2011) 18 NWLR (Pt.1278) p.1 at 50; Okwnu v. F.R.N (2012) 9 NWLR (Pt.1305) p.327 at 369 and Oduah v. F.R.N. (2012) 11 NWLR (Pt.1310) p.76.
I wish to also point out at this stage that, this is an application in which the discretion of the court is required. I need not restate that, all discretionary powers of a court of law are exercised on the facts of each case. To succeed in securing the discretion of a court in an application such as this, an Applicant must present to the court facts upon which the court would base the exercise of is discretion, since discretionary powers of a court are not exercised just at the bidding of the party seeking the discretion. This is more so, in an application such as this, when the case is still at is embryonic stage, as the trial of the Appellant had not even commenced, so no single evidence had been tendered before the court.
Indeed the Appellant had not even been arraigned as the charge had not been read to him nor her plea taken. The duty of the trial court at that stage was to simply take a cursory look at the proof of evidence so as to determine if the facts disclosed by the proof of evidence, appear to show that the offence charged had been disclosed and the Appellant has been linked with its commission. The duty of the court at this stage is not to go into a voyage of discovery or indulge, in the investigation of the facts in order to determine if the facts are provable or not. Once the facts disclosed by the materials attached to the proof of evidence satisfy him that the offence charged appear to have been committed within the purview of the law prohibiting such acts which constitute the offence, he has a duty to proceed to trial. In any case, there is nothing before the court, pointing to the fact that the Appellant was misled by any defect in the charge.
It should also be noted that at this stage, the court is not called upon to determine the weight of the evidence or to determine that the offences charged have been established or proved. The prosecution still has the burden at the trial, to prove the allegation against the Appellant by calling evidence. It is at the trial that the materials attached to the proof of evidence will be tendered and subjected to cross-examination. That is when the trial court will determine whether or not all the essential ingredients that constitute the offences charged against the Appellant have been proved beyond reasonable doubt as required by law. Indeed, after the prosecution have closed their case, the Appellant may still contend that the evidence adduced by the prosecution and tested by way of cross-examination, have not made out a case against her as to warrant calling on her to answer. He does that by embarking on what is generally called a no case submission.
Now, I had pointed out earlier in the course of this judgment that, the learned trial Judge had found at page 127 (page 11 of the Ruling) of the record of appeal that the Appellant was not misled by the omission in the charge. At the pain of repetition I hereby reproduce what the learned trial Judge said:
“The particulars of the offence clearly states that the 1st accused person committed the alleged offences in September 2006 whilst being a teacher in Queen of Apostles Grammar School, Ibadan, without expressly stating that she was then a public servant or that the school is a public school. I am of the clear view that the accused person, being a teacher in that school, is not misled by the omission in the charge and the provision of Section 166 of the Criminal Procedure Law could be invoked to save the charge. I therefore hold that the charge cannot be rendered incompetent on that ground.”
After holding as above, the learned trial Judge went on to conclude at the last paragraph of page 127 – page 128 of the record of appeal that:
“I have carefully gone through the various written statements of the witnesses the prosecution intend to call at the hearing of this case and also the statements of the two accused persons and I exercise no doubt in my mind that there are facts linking the 1st accused person with the two counts offences of knowingly holding an indirect private interest in a contract made on account of public service and of soliciting money as a reward for using influence to procure a contract with a public body, alleged against her. She therefore has something to explain at the trial of the case. In the circumstances, the proof of evidence has disclosed a prima facie case against her.”
It would be seen that the learned trial Judge, deliberately avoided going into detailed findings and conclusions in respect of the information preferred against the Appellant. This attitude of the learned trial Judge, in my view, is commendable, especially when he was not disposed to granting the Appellant’s application to quash the information. Perhaps, if he had been disposed to quash the information, his going into detailed findings on the proof of evidence would have been necessary. For the purposes of that application and of this appeal, what the learned trial Judge did, in my view, is in order. The reason being that, a court of law should be careful so as not to delve into nor decide on matters or issues which may arise at the hearing of the substantive case. In other words, a court is always circumspective as not to decide or pronounce on the merit of a case at an interlocutory stage. This is more so in a criminal trial, so as not to pre-empt the decision of the court on a point which may arise at the trial. See Ojukwu v. Yar’adua (2009) 12 NWLR (pt.1154) p.50; N.N.P.C. v. Famfa Oil Ltd (2009) 6 M.J.S.C. (pt.II) p.30 and U.B.N. Plc v. Astra Builder (W.A.) Ltd (2010) 5 NWLR (pt.1186) p.1. Thus in the case of Daboh & Anor v. State (1977) S.C. P.197; Sir Udo Udoma, JSC had this to say:-
“Therefore when submission of no prima facie case is made on behalf of an accused person, the trial court is not thereby called upon at that stage to express an opinion on the evidence before it. The court is only called upon to take note and to rule accordingly that there is before the court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged.”
This admonition of the Supreme Court as stated above, is more relevant where the trial court finds and holds that the objection to the information should be overruled. See Tongo v. C.O.P. (2007) 2 NWLR (Pt.1049) p.525 at 540 – 541 paragraphs F-E. In the instant case, the statements of the complainant Bayo Dele and that of his wife, Mrs. Bukola Bayo Dele; the statements of Mr. Adesina Sule (Assistant Information officer for Lagelu Local Government), Mr. Akinpelu Wasiu (cashier for Lagelu Local Government) and the Investigation Report titled “Proof of Evidence”, all support the findings and conclusion of the learned trial Judge that, proof of evidence has disclosed a prima facie case of knowingly holding an indirect private interest in a contract made on account of public service, contrary to Section 12 of the Independent Corrupt Practices and Other Related Offences Act, 2000.
The same principles apply in respect of the allegation or charge of soliciting money as a reward for using influence to procure a contract with public body contrary to Section 22(2)(a) of the Corrupt Practices and other Related Offences Act (supra). As pointed out earlier, the offence created under this provision is not meant to punish all acts where a person solicits a reward for using his influence to secure or procure a contract from a public institution or establishment. It is meant to punish public servants who use their positions to procure contracts for others and ask for reward for their so doing. The offence created here, is to punish what is popularly called “kick – backs” in award of contracts by public servants. It is therefore essential that the prosecution proves that the accused is a public servant and that in his position as such public servant used his position to procure a contract and thereafter asked for a reward (kick back) for it.
Those facts can only be established by evidence at the trial. For now, the Appellant not having been misled by any omission to state the particulars or ingredients of the charge, her application to quash the charge cannot be granted.
On the whole therefore, it is my view that, on the facts disclosed by the proof of evidence, it is in the interest of justice that this matter proceeds to trial. This will allow evidence to be called and tested at the trial as that is the only way to know whether or not, the Appellant committed the offences charged against her.
Having held as above, I hereby hold that this appeal lacks merit and is accordingly dismissed. The Ruling of the Oyo State High Court delivered by B. O. Boade, J on 13th day of October, 2011 in Suit No: I/4/I.C.P.C./2007 is hereby affirmed.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read before now the judgment rendered by my learned brother Haruna Simon Tsammani, JCA. I am in full agreement with the reasoning and conclusion reached therein.
In determination of whether an accused person is to be put on trial, the court is not saddled with whether the materials in the proof of evidence are sufficient to secure a conviction. The term Proof of Evidence, appears confusing when dealing with an application seeking leave to prefer a charge against an accused Person.
It should be noted in dealing with the matter that proof in point of logic is sufficient for assenting to the truth of a preposition. Proof in judicial sense has a wide imports, comprehending everything that could be adduced at a trial. That is referred to as Evidence. I am not unmindful that proof and evidence are often used interchangeably; proof is the perfection of evidence. Where there is no evidence there is no proof, but there can be evidence that does not amount to proof. That is to say that proof is the result of Evidence.
Therefore, what is required in an application for leave to prefer a charge is thus sufficient evidence to establish prima facie that there is probable cause to believe that a crime has been committed and that the accused prima facie committed the offence. Put in another way, it is evidence sufficient to warrant holding the accused for trial. The Supreme court in FRN v. WABARA (2013) 5 NWLR (Pt.1347) at 3458 held:
“Prima facie evidence simply means Evidence on its face value”.
See also Sunday Gabriel Ehindero v. Federal Republic of Nigeria; John Obaniyi (2014) 10 NWLR (Pt.1415) pg.281.
I hold the view therefore that the statement of proposed witnesses in the proof of evidence disclosed sufficient material to cause the appellant to be prosecuted.
That therefore buttresses the finding of the learned trial judge in the court below on pages 20 and 22 of judgment of the court.
Equally, I hold that the appeal is unmeritorious and it is hereby dismissed. I also affirm the Ruling of the Oyo State High Court delivered by B.O. Boade J. on 13th day of October, 2011 in Suit No. I/4/I.C.P.C/2007.
NONYEREM OKORONKWO, J.C.A.: I have had a preview of the judgment in this case by my lord Haruna Simon Tsammani JCA.
In the judgment, my lord Tsammani has recounted the principle guiding applications to quash an information for disclosing no Prima facie case against accused/applicant. In effect, it must be an evaluation of the facts of a given case against the essential elements of the offence charged.
The judgment is replete with appropriate cases on the legal issues involved.
I cannot do more than agree with my lord’s judgment.
Appearances
Olalekan Ojo; Esq with Folorunsho Ahmed; EsqFor Appellant
AND
Enosa Omoghibo; Esq with Mrs. K. F. Adeolu and Miss A. A. Bisi-BalogunFor Respondent
