ALHAJI BABA GANA ABBAS DAWA & ANOR. V. FEDERAL REPUBLIC OF NIGERIA (2011)

ALHAJI BABA GANA ABBAS DAWA & ANOR. V. FEDERAL REPUBLIC OF NIGERIA

(2011)LCN/5056(CA)

In The Court of Appeal of Nigeria

On Monday, the 11th day of July, 2011

CA/J/236C/2009

RATIO

THE BURDEN OF PROOF IN A CRIMINAL CASE

The burden of proof in a criminal case is on the prosecution to prove the guilt of the accused beyond reasonable doubt. If the accused gives an account which is consistent with his innocence and could be true, and is not proved to be untrue, he is entitled to be acquitted. This is because in such circumstances there must be a doubt with regards to his guilt. See CHRISTOPHER OKOLO V COMMISSIONER OF POLICE (1977) NNLR PAGE 1, OKAFOR V STATE (2006) 4 NWLR PART 969 PAGE 1. PER. UZO I. NDUKWE.ANYANWU J.C.A.:

PROVING THE GUILT OF AN ACCUSED PERSON

ON THE DEFINITION OF CONSPIRACY

“The 6th Edition of Black’s Law Dictionary defines conspiracy as: “A combination or confederacy between two or more persons formed for the purpose of committing by their joint efforts, some unlawful or criminal act some act which is lawful in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful”. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he (a) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime or (b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. PER. UZO I. NDUKWE.ANYANWU J.C.A.:

ON WHOM LIES THE ONUS TO PROVE THE GUILT OF AN ACCUSED

The burden of proof in a criminal case is always on the prosecution to prove the guilt of the accused beyond reasonable doubt. It is stated that if an accused gives an account which is consistent with his innocence and could be true and is not proved to be untrue, he is entitled to be acquitted. This is because in such circumstances there must be a doubt with regard to his guilt. CHRISTOPHER OKOLO V COMMISSIONER OF POLICE (1977) NNLR PAGE 1. OKAFOR V STATE (2006) 4 NWLR PART 969 PAGE 1. PER. UZO I. NDUKWE.ANYANWU J.C.A.:

ADMISSIBILITY OF DOCUMENTARY EVIDENCE

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

Between

1. ALHAJI BABA GANA ABBAS DAWA
2. ALHAJI ABATCHA ALI Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

UZO I. NDUKWE.ANYANWU J.C.A.: The 1st and 2nd Appellants in this case were the Chairman and Treasurer respectively of Damboa Local Government council. They were charged as 1st and 2nd accused persons in a 4 count charge for conspiracy et al. I will recap the 4 counts for clarity:
“(1) That you Alhaji Baba Gana Abbas Dawa (M) and Alhaji Abatcha Ali (M) on or before 14th April, 2005 or thereabout at Damboa Local Government Area, Borno State within the jurisdiction of the Honouroble Court, being public officers did conspire with each other to commit on offence under Corrupt Practice and Other Related Offences Act 2000 to wit: by using your positions as Chairman and Treasurer of Damboa Local Government Council respectively to confer corrupt advantage, the sum of N6,000,000 (Six Million Naira) property of Damboa Local Government Council, upon yourselves, which sum of money being part of N7,000,000, (Seven Million Naira) approved by Damboa Local Government Council to Galtis Water Services as mobilization fees for drilling of boreholes of Azir village of Damboa District and Ngwalimiri village of Mulgwi District respectively and you thereby committed an offence contrary to Section 26(1)(c) and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act 2000.
(2) That you Alhaji Baba Gana Abbas Dawa (M) and Alhaji Abatcha Ali (M) on or before 14th April, 2005 or thereabout at Damboa Local Government Area, Borno State within the jurisdiction of the Honourable Court, being public officers used your positions as Chairman and Treasurer of Damboa Local Government Council respectively to confer corrupt advantage, the sum of N6,000,000 (Six Million Naira) property of Damboa Local Government Council , upon yourselves, which sum of money being part of N7,000,000 (Seven Million Naira) approved by Damboa Local Government Council to Goltis Water Services as mobilization fees for drilling of boreholes of Azir Village of Damboa District and Ngwolimiri village of Mulgwi District respectively and you thereby committed an offence contrary to and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act 2000.
(3) That you Alhaji Baba Gana Abbas Dawa (M) and Alhaji Abatcho Ali (M) on or before 14th April, 2005 or thereabout at Damboa Local Government Area, Borno State within the jurisdiction of the Honourable Court, being public officers did conspire with each other to commit an offences under Corrupt Practices and Other Related Offence Act 2000 to wit: being public officers charged with the Management of property belonging to Damboa Local Government Council, knowingly furnished false return by raising payment voucher No. 103 for the sum of N7,000,000 (Seven Million Naira) and entered the same sum of money in the cash book as mobilization fee released to the contractor (Galtis Water Services) for boreholes drilling whereas only the sum of N1,000,000 was released to the said contractor and you thereby committed an offence contrary to Section 26(1)(c) and punishable under Section 16 of the Corrupt Practices and Other Related Offences Act 2000.
(4) That you Alhaji Baba Gana Abbas Dawa (M) and Alhaji Abatcha Ali (M) on or before 14th April, 2005 or thereabout at Damboa Local Government Area, Borno State, being public officers charged with the management of property belonging to Damboa Local Government Council, knowingly furnished false return by raising payment voucher No. 103 for the sum of N7,000,000 (Seven Million Naira) and entered the same sum of money in the cash book as mobilization fee released to the contractor (Galtis Water Services) for boreholes drilling whereas only the sum of N1,000,000 was released to the said contractor and you thereby committed on offence contrary to and punishable under Section 16 of the Corrupt Practices and Other Related Offences Act 2000”.
Briefly the 1st and 2nd Appellants during their tenure as Chairman and treasurer respectively of Damboa Local Government Council awarded a contract for the drilling of two boreholes of Ngwalimiri and Azir villages to Galtis Water Services for the sum of Twelve (12) Million Naira. A mobilization fee of Seven (7) Million Naira was to be paid to the contractor who issued a Receipt for same but was alleged to have been paid only One (1) Million Naira.
The investigation of these alleged offences charged was as a result of two petitions written against the Appellants by one Comrade M.A. Shettima to ICPC on gross and reckless financial mismanagement. After a full trial, the Appellants were found guilty and sentenced on the first three counts to a total of 7 years running concurrently.
The Appellants being dissatisfied filed their notice and 14 grounds of appeal.
The Appellants filed their Appellants’ brief on 25th September 2009 and articulated 6 issues for determination. There are as follows:
“In the humble view of the Appellants the following issues are relevant for the determination of this Appeal. They are:
1. Whether the Trial court was right in the pre-emptory manner it disregarded Exhibits EA16, EA17 and EA18 and the testimony of DW2 thereon, and its conclusion that they were irrelevant to the issue before the Court?
2. Whether the Trial Court properly evaluated the evidence adduced by the parties before coming to the conclusion that the mobilization fee N7,000,000.00 was not fully paid to Galtis Water Services?
3. Upon a proper consideration of Exhibit EA1 and EA2 and evidence of DW2, was the Trial Court not in error when it found –
That the 1st Appellant’s evidence that he personally sourced for the sum of N6 Million to pay for the mobilization fee was fabricated lie simply because that information was not contained in Exhibit EA 12 being the statement of the 1st Appellant to ICPC and that there was no Documentary and corroborative evidencing to prove same?
4. Whether the trial Court did not completely misrepresent and/or misapprehend the testimonies of DW1 and DW2 in support of their defence thereby making some findings that were of variance and inconsistent with the evidence before the Court?
5. Whether the trial Court was right when it found and concluded that personal loan granted by the 1st Appellant to finance the Local Government project without approval from the Council amounted to illegality and/or corrupt practice?
6. Whether the charges, conviction and sentence of the Appellants under a non-existence law is not all together null and void?”
The Appellants’ Counsel during his oral submissions discontinued with his arguments on issue 6 and was therefore struck out.
The Respondent filed its Respondent’s brief on 17th May 2010 and deemed properly filed the same day. In it the Respondent articulated 4 issues for determination as follows:
“(a) Was the prosecution’s case against the Appellant proved in law, in other words whether or not the decision of the trial Court is supportable having regard to the evidence adduced.
(b) Whether or not the trial Court properly evaluated evidence adduced before entering a verdict of guilty against the Appellants.
(c) Whether or not the trial court properly evaluated or considered the defence of the Appellants particularly Exhibits EA5, EA6, EA7 and EA18 respectively.
(d) Whether or not the Appellants were tried and convicted under a non-existent law. In other words, whether or not the Corrupt Practices and Other Related Offences Act 2000 is null and void”.
The issues as articulated by both parties are cumbersome and very verbose. The issues for determination can be captured as follows:
(1) Has the prosecution proved all the ingredients of these offences to entitle them to convictions on the 4 count charge.
(2) Did the trial Judge evaluate properly, the evidence placed before him in reaching his verdict.
The Respondent as plaintiff in the lower Court in proof of its case called 6 witnesses and tendered 16 exhibits. The Appellants herein as defendants testified for themselves and called no additional witnesses.
The burden of proof in a criminal case is on the prosecution to prove the guilt of the accused beyond reasonable doubt. If the accused gives an account which is consistent with his innocence and could be true, and is not proved to be untrue, he is entitled to be acquitted. This is because in such circumstances there must be a doubt with regards to his guilt. See CHRISTOPHER OKOLO V COMMISSIONER OF POLICE (1977) NNLR PAGE 1, OKAFOR V STATE (2006) 4 NWLR PART 969 PAGE 1.

The burden of proof in criminal cases never shifts even when the accused has admitted in his statement to the police that he committed the offence. ANI V STATE (2003) 11 NWLR PART 830 PAGE 142. IFEFIRIKA V. STATE (1999) 3 NWLR PART 593 PAGE 59, IGABELE V STATE (2006) 6 NWLR PART 975 PAGE 100.

The guilt of an accused person can be proved in three ways (1) by the confessional statement of the accused person (2) by circumstantial evidence (3) evidence of eye witness of the crime – IGABELE V. STATE (supra).
In the instant case there is no confessional statement, therefore the guilt of the two Appellants must be proved by circumstantial evidence and or by evidence of eye witnesses to the crime.
The prosecution in the court below herein the Respondent alleged that the Chairman conspired with the Treasurer of council and used their offices to confer on the Chairman an unfair advantage, the sum of N6 Million property of Damboa Local Government Council. In proof of this the Respondent called 6 witnesses and tendered 16 Exhibits. The summation of the case of the Respondent in the Court below was that, the Chairman did not get approval from council to source for money outside the council to the tune of N6 Million. Also the Respondent gave evidence to the fact that the supposed mobilization fee of N7 Million was not paid to PW2 the Director of Galtis Water Services. The Respondent proved by evidence of the PW2, and DW1 and DW2 that indeed PW2 was paid N1 Million on the 14th April 2005.
The Appellants in their defence of the lower Court stated inter alia that the 1st appellant sourced for money to the tune of N6 Million which he paid to the PW2, the Managing Director Galtis Water Services as part-payment of N7 Million mobilization fee. He stated also that the PW2 gave him a receipt for N7 Million on the 13th April 2005. The 1st Appellant gave the 2nd Appellant the Receipt. The 1st Appellant gave an instruction to the 2nd Appellant that N7 Million Naira should be withdrawn from the Council’s account when they received their allocation but that only N1 Million should be given to the PW2 in full payment of his mobilization fee of N7 Million.
The 1st Appellant also gave this same instruction to PW3 one of the council’s cashiers.
Can it be said that, the Appellants conspired to confer an undue advantage to themselves? To answer this question one must first define the word conspiracy:
“The 6th Edition of Black’s Law Dictionary defines conspiracy as:
“A combination or confederacy between two or more persons formed for the purpose of committing by their joint efforts, some unlawful or criminal act some act which is lawful in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful”.

A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he (a) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime or (b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
The key word in the crime of conspiracy is that the people must AGREE. Can it be said that in the instant case both Appellants agreed to commit this crime they were charged with. 1st Appellant in his evidence in Court stated that he sourced for private funds of N6 Million to mobilize the PW2. On paying him the N6 Million the PW2 gave him a receipt for the sum of N7 Million he was anticipating for his mobilization fee. The 1st Appellant also informed the PW2 that the balance of N1 Million would be paid to PW2 as soon as the Council got its allocation. The following day when the Council got its allocution, 1st Appellant instructed the 2nd Appellant to raise a voucher for N7 Million, pay PW2 the balance of N1 Million and return N6 Million to him. 2nd Appellant inquired of 1st Appellant whether PW1 gave him a receipt for the money advanced. 1st Appellant said yes then handed over the receipt to 2nd Appellant. The instructions given to 2nd Appellant by 1st Appellant was carried out as instructed.
From the evidence elicitated in Court it appears that the 2nd Appellant and PW3 were carrying out lawful orders of the Chairman.
2nd Appellant and PW3 in their evidence stated that a cheque may be raised in the cashier’s name and cashed to pay contractors. This invariably means that, the procedure adopted in withdrawing money for this transaction was not unusual. Furthermore see Exhibits EA16, EA17, EA18 where the some method was adopted and PW2 was paid cash and he also issued receipts evidencing such payments. This evidence can be said to be similar facts evidence.
The issuance of a receipt is proof that goods and or services received have been paid for. The issuance of receipt by PW2 is a presumption that the monies receipted for has been received.

The burden of proof in a criminal case is always on the prosecution to prove the guilt of the accused beyond reasonable doubt. It is stated that if an accused gives an account which is consistent with his innocence and could be true and is not proved to be untrue, he is entitled to be acquitted.
This is because in such circumstances there must be a doubt with regard to his guilt. CHRISTOPHER OKOLO V COMMISSIONER OF POLICE (1977) NNLR PAGE 1. OKAFOR V STATE (2006) 4 NWLR PART 969 PAGE 1.

The basic ingredient of conspiracy is the agreement of the accused persons but in this case it cannot be said that there was an agreement between the two Appellants. The 2nd Appellant only knew of the transaction after the N6 Million must have exchanged hands and a receipt to that effect given to him. Conspiracy to confer undue advantage in this case was not proved and it therefore fails.
The Prosecution did not prove or rebutt the presumption that the N6 Million was not paid to the PW2 vide the receipt Exhibit EA4 of 13th April 2005. Also vide Exhibit EA16, EA17 and EA18 and the recital in the vouchers evidencing that the sum of N7 Million Naira mobilization fee had been paid to PW2:
“By virtue of Section 132(1) of the Evidence Act, oral evidence cannot be admitted to contradict, alter, add to or vary a contract or document unless such evidence falls within any of the matters that may be proved by such oral evidence by virtue of the proviso thereof”.
FIB PLC. V. PEGASUS TRADING OFFICE (2004) 4 NWLR PART 863 PAGE 369.

In the case of AIKI V IDOWU (2006) 9 NWLR PART 984 PAGE 50 the Court of Appeal held that:
“Documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are more reliable and authentic than words from the vocal cord of men as they are neither transient nor subject to distortion and misinterpretation but remain permanent and indelible through the ages.
Thus, documentary evidence, being permanent in form, is more reliable than oral evidence, and it is used as a hanger to test the credibility of oral evidence”.
CDC (NIG) LTD V SCOA (NIG) LTD (2007) 6 NWLR PART 1030 PAGE 300 OGBADE V OSIFO (2007) ALL FWLR PART 365 PAGE 548.
Even though documents are important in proof of a case, oral evidence is also necessary to explain their veracity in any case. See ALAO V AKANO (2005) 11 NWLR PART 935 PAGE 160.
Documentary evidence is also used to evaluate the oral testimony of witnesses UBA v JARGABA (2002) 2 NWLR PART 750 PAGE 200.
In the instant case, the prosecution tendered all the receipts relevant to this case: Exhibit EA4, EA16, EA17 and EA18. These Exhibits are before the Court and the Court cannot shut its eyes to their existence. These documents are admissible and relevant to this case. These Exhibits show a pattern and the Court has taken judicial notice of them as similar facts evidence. Oral testimony of the witnesses cannot subtract from the import of these Exhibits. The evidence of PW2 cannot detract from the import of these Exhibits tendered by the prosecution. The PW2 never complained of none payment of N6 Million to anyone until this matter comes up. In his cross examination he claimed that he had done work on the two sites to the tune of N12 Million, Under Re-examination he now claimed that he had worked up to N4 Million which is about 60% of the job. PW2 is not consistent with his testimony thereby giving avenues for doubt. The 1st Appellant, 2nd Appellant and PW3 have been consistent with their testimony about the N6 Million and it sounds more probable, than that of the prosecution.
I find that there was no conspiracy by the 2 Appellants to confer undue advantage to themselves. The consistency of their statements in court and their written statements to the investigators of ICPC has not been shaken:
“The consequence of presumption of innocence in favour of an Appellant is that the burden placed on the prosecution to prove the guilt of the Appellants beyond reasonable doubt must be satisfied. If not, a slightest doubt raised by the Appellants shall lead the court to resolve the doubt in favour of the Appellants”.
IFEFIRIKA V. STATE (1999) 3 NWLR PART 593 PAGE 59.
In the instant case the Appellant’s case that the PW2 was paid N6 Million vide Exhibit EA4 and paid 3 times subsequently in the same manner vide Exhibit EA16, EA17 and EA18 raises a presumption that things have been done normally. There was no complain from PW2 in all the transactions. The idea that PW2 was not paid N6 Million Naira is neither here nor there. A receipt to that effect was issued by PW2.
He has neither made a demand for the return of the receipt nor for the full payment of N6 Million. In the absence of these one can safely say that if there is any doubt it should be resolved on behalf of the Appellants.
I therefore hold that counts 1 and 2 against the Appellants were not proved to support their convictions.
Count 3 is that of conspiracy to commit an offence under Corrupt Practices and Other Related Offence Act 2000 to wit being public officers charged with the management of property belonging to Damboa Local Government Council knowingly furnished false return by raising payment voucher No. 103 for the sum of N7 Million and entered the same sum of money in the cash book as mobilization fee released to the contractor (Galtis Water Services).
The Respondent did not prove in Counts 1 and 2 that there was any wrong doing so they could not have been false entries in the books of the council, unless Count 2 was proved, Count 4 cannot succeed. Count 4 is hanging on the success of Count 2. The transactions made by the accounts were done in the normal course of business of the council. The payments to the PW2 was not irregular. Therefore the returns in the Council books was not proved to be false entries. This doubt must also be resolved to the benefit of the Appellants.
ISSUE 2
I have also comprehensively evaluated the evidence adduced in the lower Court together with the exhibits tendered by the Respondents, whilst dealing with issue 1. It is trite that evaluation of evidence is the primary function of the trial Court. It is only where and when it fails to evaluate such evidence properly or at all, that an appellate Court can intervene and re-evaluate such evidence, otherwise the appellate Court has no business interfering with the findings of the trial Court on such evidence. ADEBAYO V ADUSEI (2004) 4 NWLR PART 862 PAGE 44. The trial Court did not properly evaluate the evidence placed before him in reaching his verdict. As such I have evaluated the evidence comprehensively whilst treating issue 1.
I also resolve issue 2 on behalf of the Appellants.
Both issues have been resolved against the Respondent. This appeal has merit and it is therefore allowed. The Judgment of the lower Court is hereby set aside. The conviction and sentence of the Appellants are hereby also set aside.
I make no orders as to costs.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the judgment just delivered by my learned brother U. I. Ndukwe-Anyanwu, JCA and I agree with the reasoning and conclusion reached therein. It is squarely on the shoulders of the prosecution, to prove the guilt of an accused person, beyond reasonable doubt. PW2 had given a receipt for the N7 million on the 13/4/2005 to the 1st appellant who in turn gave it to the 2nd appellant. Although when the N7 million was withdrawn from the Council’s funds, only N1 million was given to PW2. There is an explanation to the effect that this was because N6 million had been borrowed by the 1st appellant and given to PW2 earlier, as an advance, Hence the payment of only N1 million to him at the material time. This has not been successfully impeached by the prosecution. PW2 himself did not complain that he had been under-paid. There is therefore no proof that the appellants conspired to confer undue advantage unto themselves. And once there is no proof then there cannot be an offence. The conviction of the appellants was therefore without basis. The appeal has merit and it is allowed. The conviction and sentences of the appellants are set aside.

PHILOMENA M. EKPE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother U. I. Ndukwe-Anyanwu. I am in complete agreement with the Judgment. It however cannot be over emphasised that the burden of proof in any criminal case is on the prosecution to prove the guilt of the accused beyond reasonable doubt. This burden never shifts even when the accused has admitted in his statement to the police that he committed the offence. The prosecution in all criminal trials has the burden of proving its case beyond reasonable doubt. This principle has been recognized in all criminal cases in Nigeria. See Lori Vs the State (1980) 8-11 SC 81.
Relying on the above explanation of proof beyond reasonable doubt and for the much fuller reasoning in the lead Judgment I too agree that the Judgment of the lower court be set aside. The conviction and sentence of the Appellants are also hereby set aside and I make no order as to cost.

Appearances

Peter Adebayo Bello Esq.For Appellant

AND

Amedu Sule Esq.,
Chief Legal Officer, ICPC AbujaFor Respondent