ACHUSA v. FRN & ANOR
(2020)LCN/14917(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Thursday, December 03, 2020
CA/MK/1C/2019
RATIO
EVIDENCE: BURDEN OF PROOF IN CRIMINAL TRIALS
In all criminal trials, the burden is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the hilt. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt. If the prosecution fails to prove all the ingredients of the offence charged, then there is no proof beyond reasonable doubt. See Bakare V State (1987) 1 NWLR (Pt. 52) 579 and Ankpegher V State (2018) 11 NWLR (Pt. 1630) 249. PER JOSEPH EYO EKANEM, J.C.A.
CRIMINAL PROCEDURE: PROPER PROCEDURE IN AN INDICTMENT CONTAINING CONSPIRACY AND A SUBSTANTIVE OFFENCE
The law is that in an indictment containing conspiracy and a substantive offence, the proper approach is to deal with the substantive offence first and then proceed to see how the conspiracy count has been made out in answer to the fate of the charge of conspiracy. See Jimoh V State (2014) 10 NWLR (Pt. 1414) 105 and Agugua V State (2017) 10 NWLR (Pt. 1573) 254. PER JOSEPH EYO EKANEM, J.C.A.
CRIMINAL LAW: ELEMENTS OF PROVING THE OFFENCE AGAINST ANY PUBLIC OFFICER
The parties are ad idem that the offence consists of two elements, viz;
(i) that the accused person is a public officer; and
(ii) that he has used his office or position (as a public officer) to gratify or confer any corrupt or unfair advantage upon himself or any relation or associate of his or any other public officer. PER JOSEPH EYO EKANEM, J.C.A.
CRIMINAL PROCEDURE: NATURE OF THE ISSUE OF THE IDENTITY OF AN ACCUSED PERSON
The issue of the identity of an accused person is of crucial importance in criminal proceedings. This is to ensure that an innocent person is not convicted for an offence committed by another person. It is the duty of the prosecution to establish beyond reasonable doubt that the person standing trial before a Court is the same person who committed the offence charged. Where the prosecution fails in this regard, the trial Court is under a duty to acquit the person before it and where it fails to do so, an appellate Court will not affirm such a decision. See Fabiyi V State (2015) 18 NWLR (Pt. 1490) 80 and Okiemute V State (2016) 15 NWLR (Pt. 1535) 297. PER JOSEPH EYO EKANEM, J.C.A.
Before Our Lordships:
Onyekachi Aja Otisi Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Between
IHO ANUM ACHUSA APPELANT(S)
And
1. FEDERAL REPUBLIC OF NIGERIA 2. DONALD ORYA ANAGENDE RESPONDENT(S)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): The appellant and the 2nd respondent were arraigned before the High Court of Benue State, holden at Makurdi (the trial Court) in charge No. MHC/73C/16. The appellant was the 2nd accused person while the 2nd respondent was the 1st accused person. The charge contained four counts of offences as follows:
Count One
“That you Donald Orya Anagende (M) staff of Universal Basic Education Board Abuja and Iho Anum Achusa (M) Chairman universal Basic Education Board Benue State between October 2013 to November 2013 at Makurdi Benue State whilst being in the services of Universal Basic Education Commission Abuja and Universal Basic Education Board Benue State respectively conspired among yourselves to knowingly hold indirectly otherwise than as a member of a registered joint stock company consisting of more than 20 persons a private interest in a contract awarded by Benue State Universal Basic Education Board to Brown Sugar Global Resources Limited for the training of teachers on ICT to the tune of N97,500,000,00 (Ninety Seven Million, Five Hundred Thousand Naira) only and you thereby
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committed an offence contrary to Section 26(1)(c) and punishable under Section 12 of the Corrupt Practices and Other Related Offences Act, 2000.
Count Two
That you Donald Orya Anagende (M) staff of Universal Basic Education Commission Abuja between October 2013 to November 2013 at Makurdi whilst being employed in the service of Universal Basic Education Commission knowingly held indirectly otherwise than as a member of a registered joint stock company consisting of more than 20 persons a private interest in a contract awarded by Benue State Universal Basic Education Board to Brown Sugar Global Resources Limited for the training of teachers on ICT to the tune of N97,500,000.00 (Ninety Seven Million, Five Hundred Thousand) Naira only and you thereby committed an offence contrary to and punishable under Section 12 of the Corrupt Practices and Other Related Offences Act, 2000.
Count Three
That you Iho Anum Achusa (M) Chairman Universal Basic Education Board Benue State between November 2013 to December 2013 at Makurdi whilst being in the service of Universal Basic Education Board Benue State, did use your office to confer corrupt advantage upon
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yourself when you received the total sum of N14,000,900.00 (Fourteen Million, Nine Hundred Thousand) Naira only from the contract sum that was paid by your office to Brown Sugar Global Resources Limited and you thereby committed an offence contrary to and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act, 2000.
Count Four
That you Iho Anum Achusa (M) Chairman Universal Basic Education Board, Benue State between November 2013 to December 2013 at Makurdi whilst being in the service of Universal Basic Education Board Benue State accepted the total sum of N14,000,900.00 (Fourteen Million, Nine Hundred Thousand) Naira only from Donald Orya Anagende through Brown Sugar Global Resources Limited and you thereby committed an offence contrary to Section 18(c) and punishable under Section 18(d) of the Corrupt Practices and Other Related Offences Act, 2000.
The appellant and the 2nd respondent entered a plea of not guilty and so the case proceeded to trial. To prove its case, the prosecution called seven witnesses and tendered Exhibits A-N. After the no-case submission of the appellant and 2nd respondent was overruled, the
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appellant testified as DW4, and tendered Exhibit R. That was after the 2nd respondent called three witnesses and tendered Exhibits O, P, P1-P15 and Q. After taking addresses of counsel, the trial Court in a reserved judgment on 19th September, 2018 found the appellant guilty in counts 1 and 3 of the charge. It accordingly sentenced the appellant to 7 years imprisonment and 5 years imprisonment both without option of fine in respect of counts 1 and 3, respectively. The trial Court struck out count 4 for duplicity.
Dissatisfied with the decision, the appellant appealed to this Court by the means of a notice of appeal which was amended by the order of this Court made on 15th May, 2019.
The facts of the case leading to this appeal as presented by the prosecution are that the appellant was at all relevant times the Chairman of the Benue State Universal Basic Education Board (BSUBEB). The Board awarded a contract for the training of teachers in Benue State to the Brown Sugar Global Resources Limited for the sum of N97,500,000:00. The appellant used his office (as Chairman of the Board) to confer corrupt advantage upon himself by receiving the sum of
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N14,900,000:00 from the contract sum paid to Brown Sugar Global Resources Limited as a reward for the contract.
The appellant and the 1st respondent filed and exchanged their briefs of argument pursuant to the rules of this Court. The 2nd respondent did not file any brief of argument.
At the hearing of the appeal on 18th November, 2020, David Iorhemba, Esq. in urging the Court to allow the appeal and set aside the judgment of the trial Court adopted and relied on appellant’s amended brief of argument filed on 27/6/2020 and the reply brief filed on 24/6/2020, deemed filed on 25/6/2020.
Mrs. P.N. Arocha for the 1st respondent adopted and relied on 1st respondent’s brief of argument filed on 9/3/2020 in urging the Court to dismiss the appeal and affirm the judgment.
In the appellant’s amended brief of argument, counsel for appellant formulated the following issues for the determination of the appeal:
“i) Whether having regard to the evidence and discrepancy in the names; Iho Anum Achusa and Iho Emmanuel Anum, the identity of the person accused of committing the offences alleged in Counts one and three of the
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charge, was proved beyond reasonable doubt. (Ground 5).
ii) Whether having regard to the evidence and the circumstances of this case the learned trial Court was right in convicting the Appellant for the offences of conspiracy and using office or position for gratification. (Grounds 1, 2, 3 and 4)”.
1st respondent’s counsel distilled one issue for the determination of the appeal, to wit;
“Whether or not the Prosecution from the evidence laid before the Court proved the case beyond reasonable doubt as required by law.”
I shall be guided by the two issues formulated by appellant’s counsel since they cover all the grounds of appeal in the notice of appeal.
Appellant’s Argument
Appellant’s counsel in respect of issue 1 noted that appellant in his defence stated that he was not the person named on the charge and in the various documents tendered by the prosecution and admitted in evidence. He further noted that he (appellant) stated that his name was Iho Emmanuel Anum and not Iho Anum Achusa. Counsel referred to Exhibit “R”, a National Identity Card bearing the name “Iho Emmanuel
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Anum”. He submitted that it is settled in criminal trials that the identity of the defendant must be certain and not in doubt and that where a suspect disputes identification, the prosecution must prove beyond all reasonable doubt that the accused was the person who committed the offence, particularly where there was no confessional statement before the Court. He contended that the prosecution failed to establish that Iho Anum Achusa is the same person as Iho Emmanuel Anum.
Arguing his issue 2, counsel set out the ingredients of the offences of conspiracy as charged in the instant matter and using office or position for gratification. He posited that the trial Court erred in convicting the appellant for the reasons set out by him. He stated that the trial Court discharged and acquitted the 2nd respondent on count 2 which he said was the substantive offence. He observed that the conspiracy alleged in count 1 and the substantive offence were based on the same set of facts. He then submitted that the appellant should not have been found guilty in count 1, that is, the count on conspiracy. He conceded that it is the law that conspiracy and the
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substantive offence are two distinct offences and that conviction for conspiracy does not become inappropriate simply because the substantive offence was not proved. He however contended that where the counts alleging conspiracy and the substantive offence are both based on the same facts, the success of the charge on conspiracy depends on the proof of the substantive offence. He invoked in support of his position several cases including Kachi V State (2015) 9 NWLR (Pt. 1464) 213.
Appellant’s counsel posited that there was no evidence establishing any private interest the appellant had in the contract in issue or that he abetted or was abetted by the 2nd respondent in respect thereof. He emphasised that the contract was awarded by BSUBEB and not the appellant and so he could not be said to have interest in the contract. It was his further position that the prosecution not only failed to prove that the appellant received any money in relation to the contract from the company to which the contract was awarded, but that it also failed to prove that the company from which payments were allegedly made into appellant’s accounts was the company the
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contract was awarded to. He noted that the contract was awarded to Brown Sugar Global Resources Ltd while Exhibit A is a bank statement of account of Brown Sugar Resources Limited while the bank account opening forms and board resolution bear the name “Brown Sugar Global Resources”. It was his contention that reasonable doubt was created as to whether the pieces of evidence relate to the same company and whether it was the same one to which the contract was awarded. He argued that the doubt ought to have been resolved in appellant’s favour, with the implication that the allegation that money was transferred into appellant’s account by the 2nd respondent through the company the contract was awarded to was not proved.
Counsel argued that the prosecution failed to prove the number of persons in the company as, according to him, required under Section 12 of the Corrupt Practices and Other Related Offences Act, 2000. It was his further argument that, assuming there was proof of transfer of money by the company to the appellant, it did not conclusively establish gratification or conferment of corrupt or undue advantage without more. He
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contended that the purpose of the transfer ought to have been established. It was his further contention that the prosecution failed to prove the nature or amount of the unfair advantage as count 3 talks of N14,900,000 while the prosecution established N13,900,000:00. He finally submitted that the person who wrote the petition that triggered off investigation (Blessing Amadi) was a material witness who was not called to testify. This, he said, was akin to withholding evidence.
Mrs. P.N. Arocha for the 1st respondent submitted that the prosecution proved conspiracy between the appellant and 2nd respondent through the evidence of PW1, PW2, PW3, PW6, and PW7 as well as exhibits tendered before the trial Court. The evidence, she contended, was not challenged. She stated that evidence required to prove conspiracy is usually circumstantial. She emphasised that as soon as the contract sum was paid into the account of Brown Sugar Global Resources, the 2nd respondent started paying the appellant from the said account. Thus, she posited, conspiracy was proved. Counsel argued that, assuming without conceding, the name of the appellant in the charge is not the right
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name of the appellant, he ought to have raised the defect at the point the charge was read to him. His failure to do so, she contended, raised the presumption that the name in the charge is his name. She urged the Court to treat the evidence of the appellant as to identity as an afterthought.
Counsel noted that the appellant in his affidavit in support of his application for bail at the trial Court deposed that he is Iho Anum Achusa, the 2nd accused person. She stated that the 1st respondent proved its case beyond reasonable doubt and so the appellant ought to have led credible evidence to show that he did not conspire as charged. She placed reliance on State V Usman (2005) 1 NWLR (Pt. 906) 80 for her position.
In regard to count 3, counsel set out the ingredients of the offence charged in it. She submitted that the appellant was a public officer within the intendment of Section 2 of the Corrupt Practices and Other Related Offences Act 2000 and Section 318 of the Constitution of Nigeria, 1999 (as amended). She noted that the letter of award of the contract and the memorandum of understanding (between Brown Sugar Global Resources Ltd and BSUBEB) were
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signed by the appellant on behalf of the latter. She posited that the prosecution proved the ingredients of the offence and that it was not sufficient for the appellant to merely deny that he is Iho Anum Achusa and that the accounts to which moneys were transferred do not belong to him. Rather, she posited, the appellant ought to have led material evidence to debunk the damning evidence of the prosecution.
Counsel proceeded to submit that the number of members in the company awarded the contract is not an element to be proved in the offence under Section 12 of the Corrupt Practices and Other Related Offences Act, 2000. She further submitted that counts 1 and 2 of the charge were not based on the same facts. She contended that there is no material discrepancy in the name of Brown Sugar Global Resources Limited in light of the evidence of PW2. In respect of failure to call the petitioner, Blessing Amadi, she argued that the prosecution is not bound to call a host of witnesses and further that her evidence is not material and vital as the 1st respondent led enough damning documentary evidence to prove its case. She drew attention to the fact that the amount
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involved in count 1 is stated in words to be Fourteen Million, Nine Hundred Thousand Naira and evidence was led in that regard. She stated the total sum proved to have been transferred to the appellant is N14,900,000:00 and that despite the typographical error in the figure of the amount in count 1 (N14,000,900.00) the appellant was not misled.
In his reply, appellant’s counsel stated that he (appellant) adopted the name Iho Anum Achusa in the affidavit in support of his application for bail to tally with the name on the charge in order to have a valid application and secure his bail. He went on to submit that there is no law that precludes an accused from raising an objection to a charge after his plea, so long as he does so timeously.
Resolution
I intend to resolve the two issues for determination together as they both border on proof of the offences for which the appellant was convicted. In all criminal trials, the burden is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the
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accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the hilt. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt. If the prosecution fails to prove all the ingredients of the offence charged, then there is no proof beyond reasonable doubt. See Bakare V State (1987) 1 NWLR (Pt. 52) 579 and Ankpegher V State (2018) 11 NWLR (Pt. 1630) 249.
The law is that in an indictment containing conspiracy and a substantive offence, the proper approach is to deal with the substantive offence first and then proceed to see how the conspiracy count has been made out in answer to the fate of the charge of conspiracy. See Jimoh V State (2014) 10 NWLR (Pt. 1414) 105 and Agugua V State (2017) 10 NWLR (Pt. 1573) 254. I therefore intend to deal first with count 3 which contains the substantive offence for which the appellant was convicted. I need add that appellant’s counsel argued that count 1, the count on conspiracy was
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inextricably tied to count 2, the substantive offence in respect of which the 2nd suspect was acquitted. That however will not persuade me to start by dealing with the count on conspiracy.
Count 3 has already been set out in this judgment and it is not necessary to set it out again at this stage. Suffice it to say that it is brought under Section 19 of the Corrupt Practices and Other Related Offences Act, 2000 which states:
“Any public officer who uses his office or position to gratify or confer any corrupt or unfair advantage upon himself or any relation or associate of the public officer or any other public officer shall be guilty of an offence and shall on conviction be liable to imprisonment for five (5) years without option of fine”.
The parties are ad idem that the offence consists of two elements, viz;
(i) that the accused person is a public officer; and
(ii) that he has used his office or position (as a public officer) to gratify or confer any corrupt or unfair advantage upon himself or any relation or associate of his or any other public officer.
I agree with the parties. As regards the first element, there is no
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contest that the appellant was a public officer at all times relevant to this matter, he being the then Chairman of BSUBEB at the time the contract the subject of the charge was awarded. The issue for consideration is the second element, namely; whether or not as such public officer he used his office to confer corrupt advantage on himself by receiving the total sum of N14,900,000:00 from the contract sum that was paid to Brown Sugar Global Resources Limited to which the contract of training teachers was awarded by BSUBEB during his tenure as its Chairman.
Appellant’s counsel contended that the prosecution failed to establish that the person charged as 2nd accused person, namely; “Iho Anum Achusa” whose name appears on the statements of account Exhibit E (of the First Bank Plc) and Exhibit H (statement of account of Access Bank Plc) as the owner thereof and the entries in which show transfers of moneys from Brown Sugar Resources Limited or Brown Sugar Resources is the same person as Iho Emmanuel Anum.
The issue of the identity of an accused person is of crucial importance in criminal proceedings. This is to ensure that an innocent
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person is not convicted for an offence committed by another person. It is the duty of the prosecution to establish beyond reasonable doubt that the person standing trial before a Court is the same person who committed the offence charged. Where the prosecution fails in this regard, the trial Court is under a duty to acquit the person before it and where it fails to do so, an appellate Court will not affirm such a decision. See Fabiyi V State (2015) 18 NWLR (Pt. 1490) 80 and Okiemute V State (2016) 15 NWLR (Pt. 1535) 297.
The learned trial Judge, in deciding this point, held at pages 865 – 866 vol. 2 of the record of appeal that –
“I am satisfied that he is the same person in the charge along with the 1st accused”.
The learned trial Judge based his finding on the following:
(i) the evidence of PW1 who worked at the relevant time as the Deputy Director of Education and Co-ordinator of Training who identified the appellant as the Chairman of the BSUBEB who signed the letter of award and memorandum as the 2nd accused person;
(ii) the evidence of PW7 (the investigating officer) who identified him as the person whose conduct
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he investigated;
(iii) that the appellant did not cross – examine the witnesses on the issue of his identification;
(iv) that he did not raise the issue during the investigation;
(v) that Exhibit R (the National Identity Card) which bears the name “Iho Emmanuel Anum” does not make any difference because a man can take on different names and choose to use any particular one for any particular occasion.
I am unable to fault the position taken by the learned trial Judge. It is noteworthy that on 28th September, 2016, the charge was read and explained to the accused persons in the name, inter alia, of “Iho Anum Achusa”. Appellant stated that;
“I also understand each of the heads of the charge” (see page 534 of vol 1 of the record).
He was represented by P.D. Adi, Esq. who did not raise any objection to the effect that his client to whom the charge was read was not Iho Anum Achusa. The appellant later pleaded not guilty to the charge. In other words, the appellant agreed that he is the same person as Iho Anum Achusa. He also stood trial in that name. He did not cross – examine any of
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the prosecution witnesses including PW1 and PW 7 in respect of his identity. In fact, in his evidence – in – chief at page 712 of vol. 2 of the record, he identified himself as “Iho Emmanuel Anum; the 2nd accused”. His attempt to distance himself from the name in the charge for the first time in his defence was a self – serving afterthought and an attempt at an ambush. The law frowns at such attitude. See Oforlete V State (2000) 12 NWLR (Pt. 680) 415.
Counsel for the 1st respondent referred the Court to the appellant’s application for bail in which he named himself in the supporting affidavit as Iho Anum Achusa. I do not intend to go in that direction as the document was not tendered in evidence at the trial. Nevertheless, in view of what I have already stated, I find that the Iho Anum Achusa is the same person as Iho Emmanuel Anum.
The prosecution led evidence that the appellant was the Chairman of BSUBEB when the contract was awarded to Brown Sugar Global Resources Limited. The letter of award of the contract (Exhibit K) was signed by him. He also co – signed the memorandum of understanding relating
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thereto. The contract was executed successfully and the total contract sum of N97,500,000:00 was paid into the account of Brown Sugar Resources Limited numbered 4010867946 with Fidelity Bank Plc as is evidenced in Exhibit A, the statement of account. The payment was made by BSUBEB on 14/10/2013 and 29/11/2013. It is interesting to note that the 2nd respondent was at this time the sole signatory to the said account of Brown Sugar Global Resources Limited as mandated in Exhibit B, the resolution of the Board of Brown Sugar Global Resources Ltd dated 2/10/2013.
The trial Court found as a fact that monies totalling N14,900,000:00 were transferred from that account to the accounts of the appellant in the following instances:
(i) 13/11/13 – N3.4m transferred to appellant’s account in Access Bank Plc as shown on Exhibits H (the statement of account) and A (the statement of account of Brown Sugar Resources Ltd) at Fidelity Bank Plc.
(ii) 2/12/13 – N5m to appellant’s account in First Bank Plc as shown on Exhibits E (the statement of account) and Exhibit A.
(iii) 2/12/13 – N5m to appellant’s account in Access Bank
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Plc (see Exhibits H and A).
(iv) 11/12/13 – N1.5m to appellant’s account in Access Bank Plc (see Exhibits H and A).
The learned trial Judge held at page 875 vol 2 of the record that:
“The various amounts transferred to the 2nd accused from the account sum up to N14,900,000:00. Even though this amount is slightly higher than the one stated on the face of the count of the charge under consideration, the amount stated in the charge is clearly subsumable in this higher amount established. Proof of this lesser amount is therefore sufficient to prove the substance of the offence charged in count 3 of the charge beyond all reasonable doubt”.
The amount alleged in count 3 is “N14,000,900.00 (Fourteen Million Nine Hundred Thousand)” Naira. The amount in words is what was proved. The discrepancy is however of no moment. Appellant’s counsel stated that the contract was awarded to Brown Sugar Global Resources Ltd but Exhibit A is the statement of account of “Brown Sugar Resources Ltd (that is without the word “Global”) while Exhibits B, C and D are the memorandum of association of Brown Sugar
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Global Resources Limited, Fidelity Bank account opening forms and board resolution of Brown Sugar Global Resources. It was therefore his contention that there was a contradiction which created a reasonable doubt as to whether or not the pieces of evidence relate to the same company and whether or not the company is the same company to which the contract was awarded.
I have examined Exhibit D, the Board resolution of Brown Sugar Global Resources Ltd, with address as Block 2 Umeh Street, Wuse Zone 3, Abuja. Exhibit B is the Fidelity Bank account opening form of Brown Sugar Global Resources bearing the same address. It bears the account No. 4010867946. Exhibit A is the Fidelity Bank Plc’s statement of account of Brown Sugar Resources Limited. It bears the same account number and address. It was into this account that the amount of the contract awarded to Brown Sugar Global Resources Ltd by BSUBEB was paid. It is clear that the afore-mentioned companies are one and the same company and the contradiction and doubt as to their identity is only a figment of the imagination of the appellant.
It is noteworthy, as pointed out by the trial Court, that the
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credit balance in appellant’s account in Exhibit E before the transfer was made was N62,352.52 only before 2/12/2013 but it became N5,062,352.52 following the transfer of N5,000,000.00 on 2/12/2013. On 6/12/2013, the appellant withdrew N4,000.000.00 showing that he was aware of the transfer.
The learned trial judge rightly held that there was enough evidence to establish count 3. Appellant’s Senior Counsel rather contended that the prosecution ought to have proved the purpose of the transfers. I do not agree with him. This is because in the circumstances of the matter, there was sufficient evidence from which the Court could draw its inference and reach its conclusion as there was no explanation from the appellant.
In Itodo V State (2020) 1 NWLR (Pt. 1707) 1, 32, Ariwoola JSC, opined that,
“……our Evidence Act permits inference to be drawn from relevant established facts, because circumstantial evidence has its force in the unmistakable arm of the totality of the evidence which by undesigned coincidence points at the guilt of the accused.”
The appellant was the one who ought to have offered explanation for the
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transfer to stop the Court from reaching the conclusion that it did. In Onafowokan V State (1987) 3 NWLR (Pt. 61) 538, 552, Oputa, JSC, stated as follows:
“It is legally correct that no onus of proof lies on the appellant – This however should be interpreted to mean that the primary onus of establishing the case or the guilt of the accused is always on the prosecution except in very special and limited circumstances like cases of insanity where the law presumes him sane and casts on him the onus of establishing the contrary… But when the prosecution made out a prima facie case which if unanswered will lead to his conviction then the duty of adducing such evidence as would make the Jury find any case in his favour is definitely on the accused.”
See also State V Usman (2005) 1 NWLR (Pt 906) 80, 125 where it was held that where damaging facts have been established by the prosecution against an accused person (as in this instance) he is required to explain those facts otherwise the Court will find against him.
It is immaterial that the contract was not awarded to the appellant or by him. This is because Section 19 of the Corrupt Practices and Other Related Offences Act, 2000
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under which he was charged contains no such ingredient or requirement.
Appellant’s counsel argued that one Blessing Amadi ought to have been called as a material witness by the prosecution. A material or vital witness is a witness whose evidence is fundamental as it determines the case one way or the other. If there is a vital point in issue and there is one witness whose evidence can settle it one way or the other, the witness must be called. See State V Azeez (2008) 14 NWLR (Pt 1108) 439. The prosecution is entitled to call witnesses it considers relevant to its case. It does not lie in the mouth of the accused person to dictate to the prosecution what witness to call. The prosecution is however obliged to call a vital witness. See Idagu V State (2018) 15 NWLR (Pt 1641) 127. I fail to see the material or vital evidence that Blessing Amadi could give that the prosecution had already not led through its witnesses and exhibits tendered by it. I therefore discountenance the argument by appellant’s counsel in that regard.
It is therefore my view that the conviction of the appellant in respect of Court
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3 was justified.
I now turn my attention to count 1 which is on conspiracy. Conspiracy is the agreement between two or more persons to do an illegal act or to do a legal act by an illegal means. In the former case, the agreement itself constitutes the offence while in the latter case, it must be proved that steps were taken towards the realization of the agreement. Due to the nature of the offence of conspiracy, it is rarely proved by direct evidence. It is thus sufficiently proved by inference deduced from certain criminal acts of the parties concerned done in furtherance of an apparent criminal purpose in common between. See Njovens V State (1973) LPELR – 2042 (SC), Adepoju V State (2018) 15 NWLR (Pt. 1641) 103 and Egba V State (2019) 15 NWLR (Pt. 1695) 201. Failure to prove a substantive offence does not ordinarily make conviction for conspiracy inappropriate, since conspiracy is a separate and distinct offence in itself. So long as there is evidence from which the Court can infer agreement to do an unlawful act, the Court can convict for conspiracy though no substantive offence is proved. See Oloye V State (2018) 14 NWLR (Pt. 1640) 509. Thus,
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the mere fact that the 2nd respondent was discharged and acquitted in respect of count 2 does not by itself make conviction for conspiracy bad.
The crime alleged in Count 1 is that of conspiracy to knowingly hold indirectly a private interest in a contract awarded by the BSUBEB to Brown Sugar Global Resources Ltd contrary to Section 26 (1) (C) and punishable under Section 12 of the Corrupt Practices and Other Related Offences Act, 2000. “Section 26 (1) (C) provides that
“Any person who abets or is engaged in a criminal conspiracy to commit any offence under this Act…. Shall be guilty of an offence and shall on conviction, be liable to the punishment provided in such offence.”
Section 12 of the Act provides that
“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 the public
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service is guilty of an offence, and shall on conviction be liable to imprisonment for seven (7) years.”
From the evidence by which count 3 was proved against the appellant, the trial Court could infer the conspiracy charged in count 1. This is because, the appellant by the reason of the payment of part of the proceeds of the contract into his account and by his utilization of the money, acquired a private monetary interest in the contract which emanated from his office (BSUBEB) of which he was the Chairman. From the efforts of the 2nd respondent in making the transfers of the money to the account of the appellant on four occasions, conspiracy between the two of them to enable appellant acquire or hold that private interest could be inferred. It should be mentioned that contrary to the argument of appellant’s counsel, counts 1 and 2 of the charge were not based on the same facts.
Again, it is not correct as contended by appellant’ counsel that the prosecution had a duty to prove the number of persons in Brown Sugar Global Resources Limited. The provision in Section 12 of the Corrupt Practices and Other Related offences Act, 2000 is
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an exemption provision. By virtue of Section 141 of the Evidence Act, 2011, exemption need not be proved by the prosecution. Rather, proof of exception or exemption lies with the defendant or the party who alleges it. So if the position of the appellant’s counsel is that the appellant falls within the exception provided for in Section 12 of the Corrupt Practices and Other Related Offences Act, 2000, the burden was on the appellant to prove the sum on a balance of probabilities. See Nigerian Air Force V James (2002) 18 NWLR (Pt. 798) 295. So the learned trial judge rightly inferred conspiracy. In any event, the memorandum and articles of association of Brown Sugar Global Resources Company Limited (part Of Exhibit B) show that it is not a joint stock company.
In the light of what I have said so far, I enter an affirmative answer to the issues for determination and resolve them against the appellant.
I therefore find no merit in the appeal. It fails and I accordingly dismiss the same. I affirm the judgment of the trial Court.
ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a copy of the lead Judgment just delivered by my
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Learned Brother, JOSEPH EYO EKANEM, J.C.A., in which this appeal has been dismissed. The resolution of the issue arising for determination have been fully considered and resolved, and, I adopt same as mine.
The law is well settled that in the discharge of its burden of proof, the prosecution is not required to call every available, eye or particular witnesses. All that the law requires is that the prosecution should call or adduce evidence which proves the charge against the accused person beyond reasonable doubt. The prosecution therefore has a discretion to call only material witnesses whose evidence is sufficient to prove the charge as required by law; Amadi v. Attorney-General of Imo State (2017) LPELR-42013(SC); Adegbite v. The State (2017) LPELR-42585(SC). As long as the prosecution discharges the burden to prove the charge against the accused person beyond reasonable doubt, a conviction would stand.
For this reason and for the more comprehensive reasons given in the lead Judgment, I also dismiss this appeal and abide by the orders made therein.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, JOSEPH
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EYO EKANEM, J.C.A. and I am in agreement with my Lord’s reasoning and conclusion. I concur therewith.
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Appearances:
David Iorhemba, Esq., with him, Messrs Ahmed Ibrahim and Solomon Igba For Appellant(s)
Mrs. P. N. Arocha, with him, Isaac Jiya, Esq. – for the 1st respondent.
P. O. Okolo SAN, with him, Usman Sani, Esq. – for the 2nd respondent. For Respondent(s)
