ARFO v. FRN
(2022)LCN/16253(CA)
In the Court of Appeal
(GOMBE JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/G/14C/2022
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
MA’AJI SHETTIMA ARFO APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
WHETHER OR NOT A GROUND OF APPEAL CAN BE DUPLICATED INTO SEVERAL ISSUES
I will now look at the issues for determination. The Appellant formulated 4 issues from the 10 grounds, while the Respondents formulated 3 issues. The issues formulated by both counsels are not radically different. I will however mention that some of the issues formulated by the Appellant as stated in the Appellant’s brief offends the rule against proliferation of issues. The Courts frown against this. This means that while the law allows an issue to cover more than a ground of appeal, the law frowns against duplicating a ground of appeal into several issues. This is forbidden in law and should not be accommodated. It is odd in law just as it is odd dressing for underwear to be longer than main dress. This abhors any sense of decent dressing. This is wrong. See Okonobor vs D.K.S.T. Co Ltd (2010) 17 NWLR (pt 1221) 181; Chiadi vs Aggo (2018) 2 NWLR (pt 1603) 175; Hussein vs Mohammed (2015) 3 NWLR (pt 1445) 100. PER TOBI, J.C.A.
THE MEANING OF A NO CASE SUBMISSION
A no case submission means there is no evidence on which the Court can convict even if the Court believes the evidence given as it has failed to establish a prima facie case. See Ohuka & Ors v. State (no.2) (1988) 1 NWLR (pt 72) 539; Ikuforiji v. FRN (2018) LPELR-43884(SC); Tongo & Anor v. C.O.P. (2007) 12 NWLR (pt 1046) 525. In Fagoriola v. FRN (2013) LPELR-20896(SC), the apex Court stated what a no case submission implies when it held as follows:
“…when a “no case submission” is made, in a criminal trial, at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of the accused person postulates one or two things or both of them at once: (a) Such a submission postulates that there has been, throughout the trial, no legally admissible evidence of whom the submission has been made linking him in any way with the commission of the offence with which he had been charged, which would necessitate his being called upon for his defence.
(b) That whatever evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable Court can be called upon to act on it as establishing criminal guilt in the accused person concerned.
Therefore, when a submission of no case is made, the trial Court is not hereby called upon, at that stage of proceeding, to express any opinion on the evidence before it. PER TOBI, J.C.A.
THE POSITION OF LAW ON WHEN A PRIMA FACIE CASE IS SAID TO BE MADE
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 or that there is evidence before it linking the accused person with the offence charged. See Aituma v. State (2007) 5 NWLR (pt.1028) 466, Igabele v. State (2004) 15 NWLR (pt.896) 314, Ajiboye v. The State (1998) ACLR 555.” Per MUNTAKA-COOMASSIE, J.S.
A prima facie case is said to be made out when after hearing the evidence of the prosecution there is a reason to proceed to the hearing. This reason is what calls for explanation from the Appellant. In Oko v. State (2017) LPELR-42267(SC), the apex Court held:
“In ADUKU v. F.R.N. (2009) 4 NCC 350. On the meaning of prima facie case, the Court of Appeal has this to say:- “What is meant by Prima Facie case? It only means that there is a ground for proceedings ….. but a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is finally guilty or not… and the evidence discloses a prima facie case when it is such that uncontradicted and if believed it will be sufficient to prove the case against the accused.” See on this DR. OLU ONAGORUWA v. THE STATE (1993) 7 NWLR (Pt. 303) 19 at 80-83.” Per BAGE, J.S.C. PER TOBI, J.C.A.
WHETHER OR NOT THE DUTY TO PROVE THE CASE OF AN ACCUSED PERSON IN CRIMINAL CASES SHIFTS
The duty to prove the case of the Respondent beyond reasonable doubt does not shift, this is purely on the shoulders of the Respondent as the Appellant has nothing to prove.
In Akeem vs The State (2017) 18 NWLR (pt 1697) 311, the apex Court held:
“Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act 2011 have squarely placed the burden of proof in criminal cases on the prosecution, who must prove beyond reasonable doubt the guilt of the accused person and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v The State (1993) 7 NWLR (Pt. 307) 511 at 531 Paras A-C; Solola v The State (2005) 5 SC (Pt. 1) 135.
In discharging this burden, the prosecution must establish the ingredients of the offence with which the accused is charged. This, it can do by direct evidence or circumstantial evidence or confessional statement.”
In this respect, the Appellant has nothing to prove as he is presumed innocent in law. He is not in law expected to prove his innocence. This means therefore that even if he lies in his evidence, it is of no moment as that does not take away the burden on the prosecution to prove its case against him. This is the position of the Supreme Court in Orisa vs State (2018) 11 NWLR (pt 1613) 453, when the Court held:
“The fact that an accused person told lies to wriggle out of trouble would show that he is a liar, but that does not change or reduce the burden of proof squarely and constitutionally placed on the prosecution to establish the guilt of the accused person beyond reasonable doubt.” PER TOBI, J.C.A.
THE POSITION OF LAW ON WHAT AMOUNTS TO PROOF BEYOND REASONABLE DOUBT
Having said so, let me now return to what will amount to prove beyond reasonable doubt. The apex Court has made it easy as it has in a cloud of cases stated the position of the law in this regard. Suffice however to say that proof beyond reasonable which does not mean proof beyond any shadow of doubt, implies that the proof must be such that all reasonable men looking at the evidence before them will come to the conclusion that there is very high probability that the person accused of committing the offence actually did it. The probability that the person committed the offence must be very high. Permit me to refer to a case or two in this respect. In Maba vs The State (2020) LPELR-52017 (SC), the apex Court held in this wise:
“The burden placed on the prosecution in a criminal charge is a heavy one. It must establish the guilt of the accused beyond reasonable doubt. See Section 135 of the Evidence Act, 2011. It was held in Nwaturuocha v. State (2011) 6 NWLR (Pt.1242) 170 at 193 D-E, (2011) LPELR-SC 197/2010 that: Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. at 186 E-G (supra): It is not proof beyond all iota of doubt. One thing is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution…the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit. In Afolalu v. State (2010) All FWLR (Pt. 538) 812, (2010) 16 NWLR (Pt. 1220) 584, (2010) 5-7 SC (Pt. II) 93, (2010) 6-7 MJSC 187, it was held that: Prove beyond reasonable doubt means prove to moral certainty, such prove as satisfies the judgment and conscience of a Judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible.
See also: Dairo v. The State (2017) 9-12 SC 119; Ikpo v. State (2016) All FWLR (Pt. 837) 619, (2016) 10 NWLR (Pt.1521) 50, (2016) 2-3 SC (Pt. III) 88; Bakare v. State (1987) 1 NWLR (Pt. 52) 579, (1987) 3 SC 1, (1987) 3 SCNJ 1.” PER TOBI, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Hon. Justice Haruna Y. Mshelia of the High Court of Justice No. 3, Maiduguri, delivered on 27th September 2021, in Charge No. BOHC/MG/CR/107/2019 where the Appellant was convicted for counts 3, 4, 5 and 6 of the charge which border on a public servant knowingly and directly holding interest in a contract awarded to a company in which he is a director contrary to Section 12 of the Corrupt Practices and Other Related Offences Act, 2000 (hereinafter in this judgment referred to as CPOROA) and punishable under Section 19 of the same Act. He was charged for a total of 6 counts, he was discharged and acquitted for counts 1 and 2, but he was convicted for counts 3, 4, 5 and 6. He was convicted after the lower Court heard the 5 witnesses called by the prosecution/Respondent, and the documents tendered as exhibits and of course the evidence of the Appellant who testified for himself. The Appellant was convicted and sentenced to seven years imprisonment on counts 3, 4, 5 and 6 of the charge sheet and was discharged on counts 1 and 2 on a ruling of a no case submission which was upheld by the Court in respect thereof. The trial Court in convicting the Appellant in the judgment found at pages 173-187 of the record specifically at pages 186 held that:
“For this reason, I am satisfied that the Accused Person has private interest in the contract for the supply of 306.94 metric tonnes of maize awarded to Falkwat Multilinks Ltd by Maiduguri Flour Mills Ltd. By Section 12 of the Corrupt Practices and other Related Offences Act 2000, such private interest is an offence. I therefore find him guilty on this count… In final conclusion, the prosecution has proved the commission of the offences in counts 3, 4, 5 and 6 of the charge. The Accused Person is found guilty and convicted of the offences in counts 3, 4 5 and 6 of the charge under Section 12 of the Corrupt Practices and other Related Offences Act, 2000.’’
Furthermore, the trial Court on page 187 while sentencing the Appellant held thus;
“I have considered the plea for leniency by the convict. The offences convicted of are probity offences. If we must progress as a nation, we must respect probity in public offices and be seen to punish offenders to send the right signal to those who will be nursing such wrong doing. The sentence must balance the plea for mercy and the deterrence. S.12 of the Corrupt Practices and other Related Offences Act is a mandatory section which does not provide for option of fine.
I therefore sentence the convict as follows:-
Count 3-7 years imprisonment with H. L.
Count 4-7 years imprisonment with H. L.
Count 5-7 years imprisonment with H. L.
Count 6-7 years imprisonment with H. L.
Sentence to run concurrently.”
Apparently dissatisfied by the decision of the trial Court, the Appellant filed this appeal on 10 grounds in the Amended notice of appeal, which was filed on 22/2/2022 and deemed properly filed on 21/3/22. The Appellant’s Counsel in this appeal is L. A. Haruna Esq. who settled the Appellant’s brief filed on 22/02/2022, and deemed properly filed on 21/3/2022. The Respondent’s Counsel who settled the brief filed on 25/03/2022 is Anas M. Kolo Esq. (the Chief Legal Officer, ICPC, Adamawa State office). In arguing the appeal, the Appellant’s Counsel in the brief of the Appellant donated 4 issues for determination viz:
1. Whether or not the learned trial Judge was right when he held that the Respondent has established a prima-facie case against the Appellant when the essential elements that constitute the offence have not been established by the evidence. (Distilled from Ground 1,6,7 and 8 of the Notice of Appeal).
2. Whether or not the learned trial Judge was right in relying on the evidence of PW5 and Exhibit G as evidence that Maiduguri Flour Mills Limited is a company owned by government and that the Appellant is a managing director of the company. (Distilled from Ground 2, 4, 5, 9 and 10 of the Notice of Appeal).
3. Whether or not the learned trial Judge was right in relying on the definition of a public servant according to Section 2 of the Corrupt Practices and other Related Offences Act same been inconsistent with the provision of Section 318 of the 1999 Constitution. (Distilled from Ground 4 and 5 of the Notice of Appeal).
4. Whether Exhibit Exhibits (sic) A, A1, A2, A3, B, B1, C, C1, D, D1, E, F, F1, G, G1, H, I, j, k, K1, K2, L, L1, L2, M, M1, M2, N, N1, N2, O, O1, O2, P, P1 and P2 are legally admissible and can be relied upon? (Distilled from ground 3)
In addressing this Court on the 1st issue, learned counsel contended that by the provisions of Section 135 of the Evidence Act, 2011 and Section 36(5) of the 1999 Constitution, there is presumption of the innocence of an accused person and the standard of proof required is beyond reasonable doubt referring to Ikhimiukor Vs. State (2017) ALL FWLR pt 899 page 357 AT page 377 paras C-D, Segun Adelodun V. Federal Republic of Nigeria (2017) ALL FWLR pt 912 page 751 paras G-H. On what the Court considers when an accused person makes a no case submission, he referred to Metuh V. F.R.N (2017) 4 NWLR (pt.1554)108 C.A at page 111 ratio 2, Ibeziako V. COP(1963) F.S.C 329/62. It is the further submission of counsel that the prosecution can prove his case through eye witness account, confession of the accused and circumstantial evidence citing Ifaramoye V. State (2017) ALL FWLR pt 917 PG.1563 at Pg.1606 paras C-E.
Having stated the above trite legal position, learned counsel vehemently submitted taking into cognizance the testimonies of PW1-PW5 with the Exhibits tendered, the prosecution did not lead evidence to prove that the Appellant was a Director of Maiduguri Flour Mills limited and that Maiduguri Flour Mills Ltd (referred to in this judgment as MFML) is a public company jointly owned by Borno, Yobe and Chad Basin Development Authority. The absence or inability of the prosecution to tender forms 2 and 7 of the Corporate Affairs Commission Forms is fatal to the case of the prosecution and makes the judgment of the lower Court untenable since there is nothing to show that the Appellant is a Director of Falkwat Multilink Ltd. The decision of the lower Court is based on suspicion and the law is that suspicion no matter how grave cannot be a ground for conviction. Counsel relied on Waziri & Anor V. Geidam & Ors (2016) Vol. 2 MJSC (pt.III) 83 AT PG 121 Paras F-G. It is the firm submission of counsel that the prosecution was unable to prove all the ingredients of the offence the Appellant was charged with and therefore the conviction cannot stand relying on Chukwuemeka Agugua V. The State (2017) ALL FWLR pt 888 PG 355 at PG 378 Paras G-H.
L. A. Harun Esq. on this issue clearly opined that the lower Court was wrong in dismissing the no case submission. Counsel relied on Osho V. F. R. N(2017) ALL FWLR pt 812 page 761 AT pages 805-806. F.R.N Vs. Amah (2017) 3 NWLR (pt.1551) 139 C.A at PG 146 ratio 8.
In addressing issues 2 and 3 together, learned Counsel reproduced Section 318 of the 1999 Constitution in submitting that the issues should be resolved in favour of the Appellant as the Court was wrong to have relied on the evidence of PW5 and Exhibit G to convict the Appellant. The lower Court misplaced where the burden of proof lies on whether Maiduguri Flour Mills Ltd is a public company as the Appellant has nothing to prove in this regard. It is the prosecution that has the duty by tendering Forms C02 and C07 to prove its case to show the shareholders and Directors of the company. The failure of the Respondent to tender those documents calls for the lower Court to have invoked the provisions of Section 167(d) of the Evidence Act 2011.
Learned Counsel wrapped up his argument by saying Exhibit “H” does not amount to a confessional statement and urged this Court to resolve the issues in favour of the Appellant.
In addressing this Court on the final issue, learned counsel submitted that primary evidence is the most acceptable evidence in tendering document but in the absence of primary evidence secondary evidence. It is also his submission that the documents were wrongly admitted as the being public documents under the provision of Section 102 of the Evidence Act, 2011, they ought to be certified and in the absence of such certification, that are inadmissible in law and if admitted should be expunged. Learned counsel relied on Section 90(1) (c) of the Evidence Act, EMEKA Vs. Chuba-Ikpeazu (2017) 15 NWLR (pt.1589) 345 S.C at PG 352; C. D. O. Tudun-Maliki quarters V. Mohammed (2015) 9 NWLR Pt (1465) 585 C-A at PG. 591 ratio 7, I.G.P Vs. Ubah (2015) 11 NWLR (PT. 1471)405 C. A PG. 421 ratio 24 -25.
Another ground for the challenge on the admissibility of the documents is that they were dumped on the Court which attitude the Courts frown at.
With respect to the extra-judicial statements made by the Appellant, Counsel submitted that they were inadmissible as they were not taken in the presence of a Legal Practitioner or any person contemplated under Section 15(4), 17(1) and (2) of the Administration of Criminal Justice Act, 2015, Nnajiofor Vs. F.R. N (2019)2 NWLR (pt.1655) 157 AT ratio 4 and 5, Oguntoyinbo Vs. F.R. N (2018) LPELR-45218.
Learned Counsel finally submits that the documents having been wrongly admitted in evidence should be discountenanced and this issue resolved in favour of the Appellant and this Court should allow the appeal and set aside the ruling of the lower Court and uphold the no case submission, and also discharge and acquit the Appellant.
The Respondent formulated three issues for determination as follows;
a. Whether the Prosecution proved the offence of knowingly and directly holding private interest in a contract awarded to a company in which the Accused Person (Appellant) was a Director contrary and punishable under S.12 of the Act 2000 to warrant his conviction (Grounds 7, 8, 9 and 10 of Notice of Appeal).
b. Whether the trial Court was right in refusing to uphold the Appellant’s no case submission in regards to counts 3, 4, 5, and 6 of the charge sheets. (sic) (Grounds 1 and 3).
c. Whether from the facts before the trial Court, the learned trial Judge was right to have held that the Accused Person was a public officer having regards to the provision of S.2 of the ICPC Act 2000 and S.318(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). (Ground 2, 4, 5 and 6 of the Notice of Appeal).
In addressing this Court on the first issue, learned Counsel Anas Esq. submitted that the prosecution has the burden of proving the guilt of the Appellant beyond reasonable doubt and not beyond all shadows of doubt as contended by the Appellant, counsel cited Jimoh Michael v. The State (2008)3 NCC page 666 at 690 B-C, Lori V. State (1980) 8-11 S.C, 99. He affirmatively submitted that the Respondent has discharged the legal burden placed on it by law having proved all the ingredients of the offences beyond reasonable doubt. Learned counsel relied on the evidence of PW2, PW4, PW5 to show that the Appellant is a public officer since he is an employee of a public company, Maiduguri Flour Mill Ltd. – a company that has Chad Basin Development Authority, Borno State Investment Co. Ltd and Yobe State Investment Authority as co-owners. The admission of the Appellant that he is a Director in Falkwat Multilink Ltd also helped the case of the Respondent
Learned Counsel finally urged this Court to find and hold that all the elements of the offence as contained in counts 3, 4, 5 and 6 have been proven against the Appellant and therefore this Court should affirm the ruling and judgment of the trial Court.
On the 2nd issue, learned Counsel submitted that prima facie is different from proof. As proof occurs after evidence has been adduced by both parties, while prima facie indicates that there is a ground for proceeding with the trial, referring to Grange V. FRN (2011) 6 NCC page 384 at 420. Counsel referred to several evidence and exhibits which shows that the Appellant being the Managing Director of Maiduguri Flour Mill Ltd, a public company violated the law when that company gave contract to supply diesel and grains to Falkwat Multilink Ltd., a company he was a Director.
He firmly submitted that the testimonies of PW1-PW5 together with the exhibits tendered, when juxtaposed with the provision of Section 12 of the Act under which counts 3, 4, 5 and 6 were filed will clearly show a prima facie case to warrant the trial to proceed and therefore the case against the Appellant was not borne out of suspicion. In the light of the evidence linking the Appellant with the commission of the offences charged, he could not challenge the veracity of the Respondent’s witnesses to convince the Court otherwise. He relied on Oko Vs. State (2017) 17 NWLR (pt.1593) 245 SC
On the 3rd issue, Learned Counsel submits that the Appellant fits into the definition of public officer within the meaning in Section 2 of the Corrupt Practices and other Related Offences Act, 2000 and Section 318(1)(g) of the 1999 Constitution, as amended.
The Respondent further submitted that the evidence of PW5 was not an opinion but rather facts discovered by him in the course of investigation of the allegations against the Appellant, and that Exhibit G was corroborated by PW5 hence, it is not a mere statement and so both the evidence of PW5 and Exhibit G are admissible.
Learned Counsel finally urged this Court to resolve all the issues in favour of the Respondent and dismiss the appeal.
The above is the summary of the submission of both counsels on behalf of the parties. They have finished their assignment which now turns the focus to this Court. The interest now is what will the Court say on this appeal? The Appellant is challenging the lower Court’s decision dismissing the no-case submission and the final judgment wherein he was convicted and sentenced. The main thrust of the case of the Appellant as I understand it, is that he is not a public servant and indeed Maiduguri Flour Mill Ltd is not a public company and therefore he is not liable under the law he was charged. In other words, he was charged under a wrong law. I may be wrong but this in my view seems to be what the Appellant is challenging in the main. I make bold to say this because, the Appellant, in my opinion, does not deny that at all times material to this case he has a relationship with Maiduguri Flour Mills Ltd and Falkwat MultiLink Ltd. He was General Manager to the former, a top management position that gives him powers to make day-to-day activity including who to give contracts to. He is a Director to the latter. I also do not seem to see any denial from the Appellant on the allegation that at the same time he was holding the positions in those two companies, Maiduguri Flour Mills Ltd and Falkwat MultiLink Ltd, and issued contracts for the supply of diesel and grains at different times to Falkwat MultiLink Ltd. There is also evidence that the contracts were paid for. The Respondent’s case is that these actions amount to an offence under Section 12 of CPOROA. The Appellant on the other hand is saying that he has not committed any offence under CPROROA since is not a public servant, more so that Maiduguri Flour Mills Ltd is not a public company especially when there is no evidence to show that Maiduguri Flour Mills Ltd is jointly owned by Government either State or Federal. I must however quickly agree with the Appellant that he has nothing to prove in this case as the burden is on the Respondent to prove that Maiduguri Flour Mills Ltd is a public company in which the Federal or State Government are joint owners and further that the Appellant is a public servant by virtue of his employment in the company. The standard of proof required is beyond reasonable doubt.
The issues for determination formulated for the Appellant drives home my point. In issue 1, Appellant is challenging the ruling dismissing the no-case submission on the premise that there is no prima facie evidence as the ingredient of the offence he is charged with is not proved. Issues 2 and 3 relate to the finding of the lower Court that Maiduguri Flour Mill Ltd is a company owned by Government which makes the Appellant a public servant. The Appellant is saying that he is not a public servant since Maiduguri Flour Mills Ltd is not a public company. Issue 4 deals with the admissibility of documentary evidence. Looking at all the evidence before the Court, I am of the firm view, which I state again that what the Appellant is relying on and holding unto in this appeal is that he is not a public servant and therefore he is not liable to be charged under The Corrupt Practice and Other Related Offences Act.
All this goes to show that the Appellant did not deny the fact that during his tenure as General Manager of Maiduguri Flour Mills Ltd, contracts were awarded by the company to another company that he has interest in as Director. He made this admission with his full chest forward as if he was expecting a medal for this. I am going into all this to drive home my point that the real case of the Appellant in this appeal, though not clearly and expressly brought out is that he was charged under the wrong law as he has not been a public servant is not chargeable under the Corrupt Practice and Other Related Offences Act. I will be looking at that in the course of this judgment.
I will now look at the issues for determination. The Appellant formulated 4 issues from the 10 grounds, while the Respondents formulated 3 issues. The issues formulated by both counsels are not radically different. I will however mention that some of the issues formulated by the Appellant as stated in the Appellant’s brief offends the rule against proliferation of issues. The Courts frown against this. This means that while the law allows an issue to cover more than a ground of appeal, the law frowns against duplicating a ground of appeal into several issues. This is forbidden in law and should not be accommodated. It is odd in law just as it is odd dressing for underwear to be longer than main dress. This abhors any sense of decent dressing. This is wrong. See Okonobor vs D.K.S.T. Co Ltd (2010) 17 NWLR (pt 1221) 181; Chiadi vs Aggo (2018) 2 NWLR (pt 1603) 175; Hussein vs Mohammed (2015) 3 NWLR (pt 1445) 100. I noticed that grounds 4 and 5 were tied to issues 2 and 3. This ought not to be so. I will in the circumstance adopt the three issues formulated by the Respondent in the Respondent’s brief as in my opinion it deals and adequately covers the grounds of appeal in the notice of appeal. They are clear and straightforward. Another reason I am adopting the Respondent’s issues is that I do not want to fall into the error the Appellant’s counsel fell into, which is the error of proliferation of issues.
The Appellant has nothing to lose as the Respondent’s issues cover all the issues that the ground of appeal is challenging. I will for completeness reproduce the Respondent’s issues for determination as my issues for determination in this appeal:
1. Whether the Prosecution proved the offence of knowingly and directly holding private interest in a contract awarded to a company in which the Accused Person (Appellant) was a Director contrary and punishable under S.12 of the Act, 2000 to warrant his conviction
2. Whether the trial Court was right in refusing to uphold the Appellant’s no case submission in regards to count 3, 4, 5, and 6 of the charge sheet on the strength of the Exhibits tendered.
3. Whether from the facts before the trial Court, the learned trial Judge was right to have held that the Accused Person was a public officer having regards to the provision of S.2 of the ICPC Act 2000 and S.318 (1)(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). (Ground 2,4,5 and 6 of the Notice of Appeal).
I will start with issue 2. The Appellant in the course of the trial made a no-case submission. The implication and the law on when a no-case submission can succeed is settled beyond all doubt and it is clear which no counsel should have a problem understanding same. By making a no-case submission, the Appellant is telling the lower Court that a prima facie case has not been made out against him in the evidence of the Respondent witnesses. That is to say, that the Respondent has not proved the ingredients of the offence in such a way that would require some explanation from the Appellant. A no case submission will therefore succeed if there is no evidence in the testimony of the prosecutions presented before the Court and the documents tendered through them which establish some form of proof on the face value or which discloses a prima facie case which requires the Respondent to give some explanation. At this stage, the Court is called upon to believe the testimony of the prosecution witnesses as the Court will not be required to look at the defence. If the evidence does not connect the Appellant to the offence, then the part of the appeal against the ruling of the no-case submission will succeed. All the ingredients of the offence must be disclosed a prima facie case before a no-case submission will fail.
At this stage of the proceedings as mentioned earlier, what is relevant is not the evidence to be put forward by the Accused but rather what evidence the prosecution has presented before the Court. The Appellant in presenting a no-case submission is urging on the Court to believe the evidence presented by the Respondent completely but goes on to say that there is no evidence strong enough to require that he gives some form of explanation on the offence he is charged for. A no case submission means there is no evidence on which the Court can convict even if the Court believes the evidence given as it has failed to establish a prima facie case. See Ohuka & Ors v. State (no.2) (1988) 1 NWLR (pt 72) 539; Ikuforiji v. FRN (2018) LPELR-43884(SC); Tongo & Anor v. C.O.P. (2007) 12 NWLR (pt 1046) 525. In Fagoriola v. FRN (2013) LPELR-20896(SC), the apex Court stated what a no case submission implies when it held as follows:
“…when a “no case submission” is made, in a criminal trial, at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of the accused person postulates one or two things or both of them at once: (a) Such a submission postulates that there has been, throughout the trial, no legally admissible evidence of whom the submission has been made linking him in any way with the commission of the offence with which he had been charged, which would necessitate his being called upon for his defence.
(b) That whatever evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable Court can be called upon to act on it as establishing criminal guilt in the accused person concerned.
Therefore, when a submission of no case is made, the trial Court is not hereby called upon, at that stage of proceeding, to express any 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 or that there is evidence before it linking the accused person with the offence charged. See Aituma v. State (2007) 5 NWLR (pt.1028) 466, Igabele v. State (2004) 15 NWLR (pt.896) 314, Ajiboye v. The State (1998) ACLR 555.” Per MUNTAKA-COOMASSIE, J.S.
A prima facie case is said to be made out when after hearing the evidence of the prosecution there is a reason to proceed to the hearing. This reason is what calls for explanation from the Appellant. In Oko v. State (2017) LPELR-42267(SC), the apex Court held:
“In ADUKU v. F.R.N. (2009) 4 NCC 350. On the meaning of prima facie case, the Court of Appeal has this to say:- “What is meant by Prima Facie case? It only means that there is a ground for proceedings ….. but a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is finally guilty or not… and the evidence discloses a prima facie case when it is such that uncontradicted and if believed it will be sufficient to prove the case against the accused.” See on this DR. OLU ONAGORUWA v. THE STATE (1993) 7 NWLR (Pt. 303) 19 at 80-83.” Per BAGE, J.S.C.
Evidence in this circumstance is not just oral but also documentary evidence. Sounding relevant and specific, the Appellant in issue 2 is saying that taking all the evidence before the Court no prima facie evidence is established against him. The lower Court did not share his view and therefore in the ruling overruled and dismissed the no case submission. Was the lower Court right? The answer will involve stating the offences for which the Appellant was charged, the ingredients of the offence and the evidence before the Court in coming to the conclusion whether a prima facie case has been made out against the Appellant. I reproduce the offence the Appellant was charged with as stated in pages 4 -7 of the record.
Count 3
That you Ma’aji Shetimma Arfo (M) in the month of October, 2015 or thereabout while being a Public Servant serving as the Managing Director of Maiduguri Flour Mills Limited, a limited liability company jointly owned by Borno State, Yobe State Government and Chad Basin Development Authority – a Federal Government Agency, did knowingly and directly hold private interest in a contract you awarded to Falkwat Multilink Limited a limited liability company in which you were a director at the time, you awarded the contract to the said Falkwat Multilink Limited for supply of 40,000 litres of AGO to the Maiduguri Flour Mills Limited and paid the sum of N4,880,000.00 (Four Million Eight Hundred and Eighty 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 4
That you Ma’aji Shetimma Arfo (M) in the month of February, 2016 or thereabout while being a Public Servant serving as Managing Director of Maiduguri Flour Mills Limited, a limited liability company jointly owned by Borno State, Yobe State Government and Chad Basin Development Authority a Federal Government Agency did knowingly and directly hold private interest in a contract you awarded to Falkwat Multilink Limited a limited liability company in which you were a director at the time, you awarded the contract to the said Falkwat Multilink Limited for the supply of 217,44 metric tones of maize to the Maiduguri Flour Mills Limited and paid the sum of N16,090,560.00 (Sixteen Million Ninety Thousand and Five Hundred and Sixty 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 5
That you Ma’aji Shetimma Arfo (M) in the month of March, 2016 or thereabout while being a Public Servant serving as Managing Director of Maiduguri Flour Mills Limited, a limited liability company jointly owned by Borno State, Yobe State Government and Chad Basin Development Authority a Federal Government Agency did knowingly and directly hold private interest in a contract you awarded to Falkwat Multilink Limited a limited liability company in which you were a director at the time, you awarded the contract to the said Falkwat Multilink Limited for the supply of 306.94 metric tones of maize to the Maiduguri Flour Mills Limited and paid the sum of N23,020,500.00 (Twenty Three Million and Twenty Thousand Five Hundred 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 6
That you Ma’aji Shetimma Arfo (M) in the month of July, 2016 or thereabout while being a Public Servant serving as Managing Director of Maiduguri Flour Mills Limited, a limited liability company jointly owned by Borno State, Yobe State Government and Chad Basin Development Authority a Federal Government Agency did knowingly and directly hold private interest in a contract you awarded to Falkwat Multilink Limited a limited liability company in which you were a director at the time, you awarded the contract to the said Falkwat Multilink Limited for the supply of 386.45 metric tonnes of maize to the Maiduguri Flour Mills Limited and paid the sum of N42,123,050.00 (Forty-Two Million One Hundred and Twenty Thousand Fifty 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.
The Appellant was charged under Section 12 of the Corrupt Practice and Other Related Offences Act 2000. It will not be out of place to reproduce the said section as follows:
“Any person who being employed in the public service, knowingly acquires or holds, directly or indirectly, otherwise than 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 service, is guilty of an offence and shall on conviction be liable to imprisonment for seven (7) years.”
The ingredient of this offence which the Prosecution, the Respondent in this appeal need to prove against the Appellant are as follows:
1. The Appellant is employed in the public service.
2. Such an employee must knowingly acquire private interest in any contract emanating from or connected with his department in which he is employed.
From the evidence of the Respondent’s witnesses, there is evidence that the Appellant is the General Manager of the Maiduguri Flour Mills Ltd. There is contractual relationship between Maiduguri Flour Mill and Falkwat MultiLink Ltd, a company which the Appellant has interest as a Director. There is invoice to show contracts of supply awarded by Maiduguri Flour Mills Ltd to Falkwat MultiLink Ltd. There is evidence of transfers made as payments for the supplies as shown in Exhibit B. There is also a transfer back and front from the Appellant to Falwat MultiLink Ltd (FML). Exhibit G and G1 is a petition against the Appellant which the PW5 investigated. In response to the petition, the Appellant made Exhibit H where he admitted that money was paid to FML, a company he incorporated by Maiduguri Flour Mills Ltd, a company he is an employee as General Manager. In Exhibit K made in 2017, the Appellant was re-appointed as Director in Falkwat MultiLink Ltd. He was a director as stated in Exhibit L, L1, L2 and L3. Exhibits M, N, O and P shows transaction between MFML and FML. All these are documents that were tendered by the prosecution before the no case submission was made. As mentioned earlier in this judgment, at this no case submission level, a Court is restricted to the evidence of the prosecution.
From the above evidence, there is an explanation for the Appellant to make, which is how as an employee in the Maiduguri Flour Mills Ltd as the General Manager, contracts were awarded for which payments were made to a company to which he was a director, that is Falkwat Multilink Ltd. on this ground, the lower Court was right in dismissing the no case submission since a prima facie case has been made out by the Respondent against the Appellant. The lower Court was in sound footing in ordering the Appellant to open his defence. I resolve issue 2 in favour of the Appellant.
I will now turn to issue 1. Putting the inquiry in this issue in proper perspective, the question is whether the Respondent as prosecution has proved its case. This is a criminal matter and as such the onus and the burden of proof is squarely on the prosecution which it must prove beyond reasonable doubt and when there is doubt which borders on material doubt, the doubt will be resolved in favour of the Appellant. This is the position of the law. See Sule vs State (2017) LPELR-47016 (SC); Bassey v. State (2012) LPELR-7813(SC); FRN v. Abubakar (2019) LPELR-46533(SC).
The duty to prove the case of the Respondent beyond reasonable doubt does not shift, this is purely on the shoulders of the Respondent as the Appellant has nothing to prove.
In Akeem vs The State (2017) 18 NWLR (pt 1697) 311, the apex Court held:
“Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act 2011 have squarely placed the burden of proof in criminal cases on the prosecution, who must prove beyond reasonable doubt the guilt of the accused person and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v The State (1993) 7 NWLR (Pt. 307) 511 at 531 Paras A-C; Solola v The State (2005) 5 SC (Pt. 1) 135.
In discharging this burden, the prosecution must establish the ingredients of the offence with which the accused is charged. This, it can do by direct evidence or circumstantial evidence or confessional statement.”
In this respect, the Appellant has nothing to prove as he is presumed innocent in law. He is not in law expected to prove his innocence. This means therefore that even if he lies in his evidence, it is of no moment as that does not take away the burden on the prosecution to prove its case against him. This is the position of the Supreme Court in Orisa vs State (2018) 11 NWLR (pt 1613) 453, when the Court held:
“The fact that an accused person told lies to wriggle out of trouble would show that he is a liar, but that does not change or reduce the burden of proof squarely and constitutionally placed on the prosecution to establish the guilt of the accused person beyond reasonable doubt.”
Before I proceed further to state what will amount to proof beyond reasonable doubt, let me state clearly that there is a difference between what is required to establish a prima facie case against the Respondent and what is required to convict him. The former is required to know whether a no-case submission will succeed or not, while the latter relates to the conviction of the Appellant. The point I am trying to make is that the mere fact that a Court has held that a prima facie case has been established against the Respondent and therefore the no-case submission failed does not mean that the Respondent must necessarily be convicted. This Court made this point in Registered Trustee of Synagogue Church of All Nations v. State & Ors (2018) LPELR-46631(CA) when it held:
“Based on the findings of facts, applicable principles of law and the reasons adduced above therefore, I hold firmly that the 1st Respondent placed before the Court below sufficient materials in form of relevant evidence in line with the offence charged in Count 1 amounting to a prima facie case against the Appellant to warrant its being called upon to enter upon its defense to the criminal allegation made against it by the 1st Respondent and far be it from the correct position of the law that at the stage of the close of the Prosecution’s case, the Prosecution was or should be expected to prove the alleged offence against the Appellant beyond reasonable doubt. In law, all that was required of the Prosecution at the stage of the close of its case is the establishment of a prima facie case against the Appellant, nothing more, nothing less and nothing else. See Ajiboye V. State (1995) 8 NWLR (Pt. 414) 408. See also Ubanatu V. COP (2001) 22 ACLR 312 AT p. 335. This is why where even if prima facie has been made out against a Defendant, he may yet at the end of the trial still be discharged and acquitted if the Prosecution failed to prove its case against him beyond reasonable doubt as required by law, notwithstanding the fact that at the close of its case it made out a prima facie case against him. In other words, prima facie case is not synonymous with proof beyond reasonable doubt. See Ubanatu V. COP (2001) 22 ACLR 312 AT p. 335. See also Ajidagba V. IGP (1958) 3 FSC 5 AT p. 6; Ajiboye V. The State (1995) 8 NWLR (Pt. 414) 408.” Per GEORGEWILL, J.C.A.
Having said so, let me now return to what will amount to prove beyond reasonable doubt. The apex Court has made it easy as it has in a cloud of cases stated the position of the law in this regard. Suffice however to say that proof beyond reasonable which does not mean proof beyond any shadow of doubt, implies that the proof must be such that all reasonable men looking at the evidence before them will come to the conclusion that there is very high probability that the person accused of committing the offence actually did it. The probability that the person committed the offence must be very high. Permit me to refer to a case or two in this respect. In Maba vs The State (2020) LPELR-52017 (SC), the apex Court held in this wise:
“The burden placed on the prosecution in a criminal charge is a heavy one. It must establish the guilt of the accused beyond reasonable doubt. See Section 135 of the Evidence Act, 2011. It was held in Nwaturuocha v. State (2011) 6 NWLR (Pt.1242) 170 at 193 D-E, (2011) LPELR-SC 197/2010 that: Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. at 186 E-G (supra): It is not proof beyond all iota of doubt. One thing is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution…the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit. In Afolalu v. State (2010) All FWLR (Pt. 538) 812, (2010) 16 NWLR (Pt. 1220) 584, (2010) 5-7 SC (Pt. II) 93, (2010) 6-7 MJSC 187, it was held that: Prove beyond reasonable doubt means prove to moral certainty, such prove as satisfies the judgment and conscience of a Judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible.
See also: Dairo v. The State (2017) 9-12 SC 119; Ikpo v. State (2016) All FWLR (Pt. 837) 619, (2016) 10 NWLR (Pt.1521) 50, (2016) 2-3 SC (Pt. III) 88; Bakare v. State (1987) 1 NWLR (Pt. 52) 579, (1987) 3 SC 1, (1987) 3 SCNJ 1.”
One more case in this regard will not harm anyone but for completeness, I will mention the case Afuape vs State (2020) 17 NWLR (pt 1754) 381 where the Supreme Court held thus with regard to proof beyond reasonable doubt in these words:
“Proof beyond reasonable doubt” means establishing the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond the shadow of a doubt. …To prove a case beyond reasonable doubt, there must be a degree of compulsion that is consistent with a high degree of probability. In other words, if the evidence against the accused is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence, “of course it is possible but not in the least probable,” the case would have been proved beyond reasonable doubt. Bakare v. State (1987) 1 NWLR (Pt. 52) 579; Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501 referred to.”
Having said so, I have looked at the finding of the lower Court after restating the ingredients of the offence wherein the Court held that the Respondent has proved its case beyond reasonable doubt. For a doubt to sway the Court in favour of the Appellant, such a doubt must be material and relate to the ingredients of the offence the Appellant is charged for and not just any kind of doubt. A doubt in the case of the prosecution which if resolved in favour of the Appellant will not affect the outcome of the case is a doubt which is not material. The conviction of a person charged for an offence is a function of the prosecution proving the ingredients of the offence. If the doubt relates to the ingredient of the offence it is a material doubt, otherwise it is not a material doubt and will not affect anything. In Kalgo v. State (2021) LPELR-53077(SC), the apex Court held thus:
“Yes, the Prosecution is enjoined to prove its case beyond reasonable doubt, and yet, not all doubts are reasonable. Reasonable doubt automatically excludes unreasonable doubt fanciful doubt imaginary doubt and speculative doubt-a doubt not borne out by the facts and circumstances of the case – see Bakare V. State (supra).” Per AUGIE, J.S.C.
Let me look at an area that the Appellant’s Counsel made an issue of in his submission which in my opinion is not the kind of doubt the law anticipate will make a difference in the judgment of a Court. The learned counsel to the Appellant has submitted that the Appellant is charged as the Managing Director of Maiduguri Flour Mills Ltd but he was actually the General Manager. Despite the fact that the Appellant himself testified that the designation was changed, I must say that in establishing the liability of the Appellant the office he holds is of no relevance as the offence is committed by any person in the employment of the public service. The office a person occupies is of no material importance.
In deciding whether the lower Court is right in its decision, I must warn myself that I am not permitted to interfere with the findings of facts of the lower Court except such finding is perverse, that is to say when such evidence does not correspond with the evidence before the Court. Let me now look at the evidence before the Court which informed the decision of the lower Court. I had stated the ingredient of the offence above so I will not need to state them again. In summary for the decision of the lower Court to be upheld there must be proof, oral or document beyond reasonable that the Appellant is a public servant employed in the public service of the Federation or the State. Furthermore, while in such service, he knowingly either directly or indirect has interest in another company which does business with the department and company he is employed in.
Let me at this stage take a look at the evidence before the lower Court which in my opinion informed the decision of the lower Court. There is evidence that State and Federal Government Agencies are shareholders in Maiduguri Flour Mills, these are Borno Investment Ltd, Yobe Investment Ltd and the Chad Basin Development Authority. There is evidence that the Appellant is a Director of Falkwat Multilink Ltd, a Company that Maiduguri Flour Mills Ltd had several business transactions with, that is several contracts were awarded to, for which the company was paid. These transactions took place when the Appellant was in the employment of Maiduguri Flour Mills Ltd as General Manager. This means clearly that, at the same time all these transactions were taking place, the Appellant was General Manager of Maiduguri Flour Mills Ltd and he was also a Director of Falkwat Multilink Ltd. This morality leaves a very sour taste in the mouth. Let me hasten however to say, morality and legality are not twins but at the same time they are not strange bed fellows. All this evidence establish the fact that the Appellant did not deny that he was General Manager of Maiduguri Flour Mills Ltd which gave contracts to Falkwat Multilink Ltd, a company he had interest. At page 148 of the record during cross examination, this is what the Appellant said:
“I was appointed on 25/2/2014 but resumed duty on 5/3/2014. I left june 2020. I know Falkwat Multilink Nig. Ltd, I incorporated the company. I was a director in the company. I reported to Lagos. During my tenure, there are some contracts awarded to Falkwat MultiLink Ltd. I was a director at Falkwat when the contracts were awarded.”
The decision of the lower Court was based on the above evidence which was from the testimony of the parties and the documents tendered before the Court, in the light of this evidence, I have no difficulty in agreeing with the lower Court that the Respondent had proved the offences against the Appellant. This position is however subject to my resolution of issue 3 which is whether the Appellant by virtue of his employment in Maiduguri Flour Mills Ltd is a public servant under the law specifically under Section 12 of the CPOROA.
Before I will consider that all important issue, there are yet some points that I need to resolve under this second issue. The Appellant has in my opinion erroneously believed that he was convicted based on Exhibit G and his statement to the police. He has submitted that the statement is not a confessional statement within the definition of Section 28 of the Evidence Act. This in my opinion is a misconception as the conviction of the Appellant by the lower Court is based on the totality of the evidence before the Court which was properly evaluated in my view. In the circumstance, I do not think I want to waste my time considering whether the statement is confessional and whether it was taken in line with the provision of the Administration of Criminal Justice Act. The point I am making is, with or without the Appellant’s statement, that is Exhibit, there is enough evidence upon which the lower Court could and actually did convict the Appellant. There is enough evidence as I had stated above that the Appellant while in the employment of Maiduguri Flour Mills Ltd as the General Manager had interest as Director in Faltwat MultiLink Ltd, a company to which contracts were awarded. There are exhibits which drives home this point, more so this all important evidence upon which the conviction of the Appellant was based was not denied or discredited under cross-examination. I will come to the admissibility of these exhibits later but for now, I state without equivocation a Court cannot ignore the evidence a person gives against his own interest as it is relevant and admissible evidence. See Nwachukwu v. State (2002) 7 S.C (pt 1) 124; Akaninwo & Ors v. Nsirim & ors (2008) 1 S.C (pt III) 151.
From the evidence of the Appellant himself, he has said he was employed in 2014 as General Manager of the Maiduguri Flour Mills Ltd until he left in 2020. The evidence of PW1, PW2 and PW5 are ad idem on this point. Subject to my decision on issue 3, for now, the fact that the Appellant was working for the Maiduguri Flour Mills Ltd and at the same period from his own evidence that he had interest in Falkwat MultiLink Ltd as Director and incorporator, raises an issue of credibility and morality when the same company does business with the company he is employed in. As earlier stated, Exhibit B shows that there were payments made to Falkwat MultiLink Ltd from Maiduguri Flour Mills Ltd and from Falkwat MultiLink Ltd to the Appellant and the various document of contracts and payment makes the finding of the lower Court on this point solid. The only rescue could come in issue 3 if I find and hold that the Appellant is not a public servant. If I hold he is a public servant, this appeal will be dismissed. In my view, this is the main issue because all the evidence has shown that the Respondent proved beyond reasonable doubt the charge against the Appellant.
The Appellant has challenged the admissibility of the documents tendered on the ground that they were not certified as public documents and further that the documents were dumped on the Court. Let me say in very clear terms that a Court is not a dumping ground for parties to just present documents without connecting them to the case before the Court. A party tendering a document has the responsibility in law to link the documents to his case and specific aspects of his case. Failure to do that will amount to dumping the documents on the Court. See A.C.N. vs Nyako (2015) 18 NWLR (pt 1491) 352; Ladoja vs Ajimobi (2016) 10 NWLR (pt 1519) 87; A.P.GA vs Al-Makura (2016) 5 NWLR (pt 1505) 316.
While it is true that the Respondent’s witnesses did not connect each document to specific evidence, it will not be right to say that the documents had no connection with the case. Looking at the record, general evidence was given relating the documents to the case and linking each to an aspect of the case before the set of documents covering the evidence was tendered. This is why they were tendered in batches. This method in my view did not offend the legal position stated above. Let us take an example at page 141 of the record where the PW5 testified in the proceeding as follows:
“Maiduguri Flour Mills gave business to Falkwat for supply of grains and diesel while the 1st Accused was M.D. of the Mills and Director of Falkwat. All the supplies were paid for. In the course of our investigation we recovered documents to the above effects. These are the documents.
Benesheikh: I apply to tender these documents in evidence.
Alfa: No objection
Hamza: No object
Court:
1. A document of Maiduguri Flour Mills Ltd dated 25/02/2016 and two accompany documents are admitted in evidence and marked as Exhibit M, M1 and M2.
2. A document of Maiduguri Flour Mills Ltd dated 20/07/2016 with accompanying two documents are admitted and marked as Exhibit N, N1 and N2
3. A document of Maiduguri Flour Mills Ltd dated 12/10/2015 with accompanying two documents are admitted in evidence and marked as exhibit O, O1 and O2.
4. A document of Maiduguri Flour Mills Ltd dated 2/03/2016 with two accompanying documents are admitted in exhibits and marked as exhibit P, P1 and P2.”
The documents were not just dumped on the Court for the Court to sort out which document is tendered for what purpose. The general evidence was given and then the documents relating to that evidence were tendered and marked. In this circumstance, I am not of the view that the documents were dumped on the Court.
The other objection is that the documents are inadmissible as they are public document which were not certified and further that as secondary evidence they did not meet the requirement of the law. Since the objection of those documents are based on secondary documents and the need for certification as public documents, I reproduce the provisions of Sections 86 and 102 dealing with primary evidence and public documents.
Section 86 provides thus:
“Primary evidence means the document itself produced for the inspection of the Court.
(2) Where a document has been executed in several parts, each part shall be primary evidence of the document.
(3) Where a document has been executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart shall be primary evidence as against the parties executing it.
(4) Where a number of documents have all been made by one uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process, each shall be primary evidence of the contents of the rest; but where they are all copies of a common original, they shall not be primary evidence of the contents of the original.”
Section 102 provides thus:
“The following documents are public documents-
(a) documents forming the official acts or records of the official acts of- (i) the sovereign authority; (ii) official bodies and tribunals; or (iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) public records kept in Nigeria of private document.”
For the purpose of this appeal, it is not all the documents tendered that are of relevance to the case and this appeal. I will mention the relevant documents and state the position of the law as to their admissibility. Before I do that, I will state that the law on admissibility of document is that relevance is the test of admissibility. Once a document is relevant, it will be admitted and if there are conditions to be satisfied and such conditions are satisfied, it will be admitted although the weight to be attached is a different ball game. See Natsaha vs State (2017) 18 NWLR (pt 1596) 38; Aondoakaa vs Obot (2022) 5 NWLW (pt 1824) 523; Blessing vs FRN (2015) 13 NWLR (pt 1475) 1.
A document which is legally inadmissible will be expunged even on appeal even if it is admitted by consent of the parties, however if the document is legally admissible a party cannot challenge its admissibility if the document was not objected to at the point it was tendered as the appropriate time to challenge admissibility of a document is when it is tendered. See Balogun vs Agbesanwa (2001) 17 NWLR (pt 741) 118; FRN vs Kayode-Beckley (2020) 16 NWLR (pt 1750) 219.
Let me now take a roll call of the relevant Exhibits and decide on their admissibility. Exhibit B is a bank statement of Falkwat MultiLink Ltd. It is not a public document and it is the original and therefore admissible without any challenge. It does not require certification. The stamp of Zenith Bank on it is sufficient. To satisfy the provision of Section 84 of the Evidence Act, Exhibit B1 was tendered.
Exhibit G, the petition from the Coalition of Concerned Borno Indigenes is a letter addressed to the EFCC. EFCC has the original and it was certified by them. By Section 87 of the Evidence Act, 2011 since it is a document which is a copy made from the original compared with same, it is admissible. This goes also for Exhibit G1.
Exhibit H is primary evidence since it is the original within the provision of Section 86(1) of the Evidence Act. This is also admissible.
Exhibits K, K1, K2 L, L1, L2, L3 are documents from the Corporate Affairs Commission which has the certification from the commission. The certification was done by Terver Ayua-Jor from the investigation department of the commission. This is admissible.
Exhibits M, M1, M2, N, N1, N2, O, O1, O2, P, P1 and P2 are documents from Maiduguri Flour Mills Ltd which was certified by the acting accountant, Abdulfatai Abdulrasheed. This is also admissible. Exhibit Q is the original appointment letter, it is therefore admissible. Once the original of a document is present whether private or public document, it is primary evidence and does not need certification. See Anagbado vs Faruk (2019) 1 NWLR (pt 1653) 292.
From the above, it is clear that the objection of the Appellant to the admissibility of the documents is not tenable. They are admissible and therefore, I cannot expunge them. In spite of that, even if I am wrong, I still cannot resolve issue 1 in favour of the Appellant but rather against him and in favour of the Respondent.
The last issue which in my opinion is the main thrust of the Appellant’s appeal is that Maiduguri Flour Mills Ltd is not a company owned by the government and therefore it is not a public service under the provision of the law and consequent on that, he is not a public servant and therefore not subject to be tried under the Corrupt Practices and Other Related Offences Act. It is the submission of the Appellant’s counsel that by the definition of public servant under the Constitution, he is not a public servant, even if by the provision of Section 2 of CPOROA, he is a public officer, the provisions of S. 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) prevails over CPOROA. I must concede that the Constitution will prevail over any law or legislation that is at variance or in conflict with it. This is the law. See Yantaba vs Gov., Katsina State (2022) 1 NWLR (pt 1811) 259.
This means that if the definition of a public servant provided in the Constitution, and the Act of CPOROA is conflicting, the former will prevail over the latter. Let me look at Section 318 of the Constitution and Section 2 of the CPOROA Act to see whether there is any difference. I will start by producing Section 318 of the Constitution, it states thus:
“Public service of a State” means the service of the State in any capacity in respect of the Government of the State and includes service as:…
(g) staff of any company or enterprise in which the government of a State or its agency holds controlling shares or interest”
Section 2 of the Act provides thus:
“Public Officer” means a person employed or engaged in any capacity in the public service of the Federation, State or Local Government, public corporations or private company wholly or jointly floated by any government or its agency including the subsidiary of any such company whether located within or outside Nigeria and includes judicial officers serving in Magistrate, Area or Customary Courts or Tribunals”
I have looked at both provisions, I do not see the conflict the Appellant seems to want to bring out between both provisions. Apart from the general provision in the definition for public officers, the Constitution went out to include as public servants, company or enterprise where the Government of a State or its agency holds controlling shares or interest. On the side of the Act, a public officer includes an employee even in a private company which is wholly or jointly floated by any government or its agency. Both the Constitution and the Act extend the scope of public officer beyond the traditional definition of a person working in a government establishment. It extends it to include even private companies in which the government or its agencies has interest. See NNDC v. Ugbagbe (2021) LPELR-56666 (SC).
The question therefore is whether the government either at the State or Federal level has interest or shares in Maiduguri Flour Mills Ltd. There is evidence which the lower Court accepted coming from PW1 and PW2 that the company though private, has government agencies as shareholders and thus, having interest therein. The PW1 and PW2 said Borno Investment Ltd, Yobe Investment Ltd and Chad Basin Development limited have interest in the Maiduguri Flour Mills Ltd. This Court can take judicial notice of the fact that the Chad Basin Development Authority is the agency of the Federal Government. The fact that there is evidence that the Borno State Government gave Maiduguri Flour Mills Ltd bail-out fund at a time shows that Borno State Investment is their agency. Though there is no evidence to show the amount of shareholding of the government agencies, which would have evidenced forms C02 and C07, I however make bold to say that the inability to tender those documents does not in any way affect the case of the Respondent and the decision of the lower Court. This is because the Appellant by himself in his evidence at page 147 of the records described himself as a civil servant with Borno State Government and that Borno Investment Ltd and Yobe Investment are owners of Maiduguri Flour Mills Ltd. Let us hear from him:
“….I am a civil servant with Borno State Government… Maiduguri Flour Mills is owned by Flour Mills of Nigeria Ltd, Goni Asika & Sons, Lawan Monguno & Sons, Borno Investment Ltd, Yobe investment Ltd, Alhaji Adamu Badejo & Co Nigeria Limited. The above are the shareholders.”
In the light of the above admission and the evidence of PW1, PW2 and PW5, the onus shift to the Appellant to prove that the shareholding of the government agencies is not substantial enough to satisfy the provision of the Constitution. The Respondent has shown that government agencies have interest in Maiduguri Flour Mills Ltd which the Appellant has admitted. He that is alleging otherwise has the duty to prove on the trite principle of law. The requirement of the Appellant to prove his allegation does not in any way affect the principle of law on the innocence of the Appellant. Since the Respondent has proved beyond reasonable doubt the offences the Appellant is charged for, the onus to prove any defence lies on the Appellant. In the light of the evidence before the lower Court, I agree with the finding of the lower Court that the Appellant is in public service and the Respondent has proved all the ingredients of the offence. I also resolve this issue in favour of the Respondent. Having resolved all three issues in favour of the Respondent, the decision of this Court on this appeal is obvious.
Before I make the obvious order, I must not fail to condemn in very strong terms the attitude of public officers abusing their position to enrich themselves with the “commonwealth” of the Nation. Many public officers at all levels do not seem to understand that they are there to serve the people and not to use their office to enrich themselves. We can all enjoy the National cake if those elected into elective offices or appointed into position use their office to ensure that people benefit by their administration of their offices for the well-being of all. Corruption is to be condemned in whichever way and whatever form its presents itself. Corruption is wider than receiving monetary gratification. Any person who does anything without following due process or uses his office to give contract to a company he has interest in, has committed a corrupt act. The long hand of the law will visit him the same way it has come upon the Appellant. What I find most interesting here is that the Appellant did not deny what he did, but he thinks he can use technical grounds to be left off the hook. I am not impressed. Faced with a similar matter in FRN vs Samuel Bulus Adamu (2021) LPELR- 54598 (CA) this is what I said by way of obiter which I wish to reemphasise:
“By way of obiter, permit me to say, public service is not a come and eat party and therefore persons occupying public office should not see public funds as their national cake that they did not bake to eat. Public officers should see public service as opportunity and a call to service to better the lives of people he is called upon to serve either in elective and appointive office and definitely not a channel to get rich at the expense of those they are elected to serve. A public officer who thinks he is not accountable to any person should be made to understand that they are not above those who elected them. The narrative of seeing public office as an easy-to-make-it venture must change. In my opinion, when a public officer is found guilty of corruption-related crimes, a Court should not sympathize with such a person but hand over heavy sentence that can deter others. The PPA is a law made to put public officers under check and when there is a violation, no Court should spare any violator. Public funds should not go into private hands and when this happens, whoever is found guilty should be made to face the law and the consequences of his action.”
On the whole, this appeal fails and it is dismissed. The conviction and the sentence of the Appellant in the lower Court is hereby affirmed. By way of consequential order, by the record of this Court, the Appellant is on bail since he appears in person most times the case is called. He is to serve the time remaining from the seven years from when he was released on bail. For avoidance of doubt, this order means that if he has served one year before he was released, he will now serve six years which is the balance for the seven years imprisonment. This is the order of this Court.
JUMMAI HANNATU SANKEY, J.C.A.: I have read the judgment delivered by his lordship, Ebiowei Tobi, JCA, and I agree.
The no-case submission made by learned Counsel for the Appellant in respect of counts three, four, five and six of the charge under Section 12 of the Corrupt Practices and Other Related Offences Act, 2000 was dismissed, while it was upheld in respect of counts one and two of the charge. He was therefore discharged on counts one and two. Under the second issue for determination, the Appellant questions the finding of the lower Court dismissing the no-case submission on those four counts.
After a thorough examination of the evidence amassed by the Respondent, both oral and documentary, it is manifest that the ingredients of the offences for which the Appellant was charged were established and a prima facie case was disclosed, warranting the Appellant to put in his defence. There is no doubt that the evidence placed before the trial Court established that the Appellant is the General Manager of Maiduguri Flour Mills Ltd and that, while in that capacity, the Maiduguri Flour Mills awarded contracts to Falkwat Multilink Ltd, a company in which he has interest as a director – Exhibits B, H, K, L, L1, L2, L3, M, N, O and P, are pertinent in this regard. Thus, based on the ample evidence adduced, the lower Court rightly dismissed the no-case submission in respect of the four counts of charge.
It is interesting that even when defending himself from the charge, the Appellant under cross-examination, gave viva voce evidence as recorded at page 148 of the record of appeal agreeing that he was the General Manager of Maiduguri Flour Mills Ltd, a company in which Government had considerable shareholding, which company gave contracts to Falkwat Multilink Ltd, a company in which the Appellant had interest as a director. Thus, the decision of the lower Court convicting the Appellant, was based on the totality of the credible and cohesive evidence adduced by the Respondent, to wit: the testimonies of witnesses and the numerous documents admitted in evidence, including the Appellant’s own admission against interest. Therefore, I am also of the view that the Respondent proved the offences against the Appellant to the standard required by law, which is beyond reasonable doubt.
It is therefore for these reasons, in combination with the reasons advanced in the leading judgment, that I find the appeal devoid of merit. I also dismiss the appeal and abide by the consequential orders made therein.
IBRAHIM SHATA BDLIYA, J.C.A.: I have read in draft, the lead judgment of my learned brother, EBIOWEI TOBI, JCA, just delivered.
I agree with the reasoning and conclusions of my learned brother that the appeal had no merit.
It is for the reasons therein contained in the lead judgment that I also dismiss the appeal, and affirm the judgment of the lower Court delivered on the 27th day of September, 2021.
I abide by the orders made in the lead judgment.
Appearances:
L. A. Haruna Esq. appeared with him L.E Ojile Esq., S. A. Onimisi Esq., N. Z. Gambo Esq. and M.E Joshua Esq. For Appellant(s)
Anas M. Kolo Esq. {The Chief Legal Officer, Independent Corrupt Commission [ICPC], Adamawa state office} For Respondent(s)