ENGR. SOLA AKINWUMI V. THE STATE
(2012)LCN/5574(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2012
CA/I/231C/2010
RATIO
CRIMINAL LAW: BURDEN OF PROOF IN CRIMINAL TRIALS
In a criminal trial, the onus is on the prosecution to prove its case against the accused persons beyond reasonable doubt. It must prove its case against each accused person separately. Where it fails to do so any doubt would be resolved in favour of the accused. PER MOORE A. A. ADUMEIN, J.C.A.
CRIMINAL LAW: WHETHER THE ISSUES OF PROPER PARTIES CAN ARISE IN A CRIMINAL TRIAL
The issue of proper parties in a criminal trial therefore does not arise. It is not an issue that affects the jurisdiction of the court to try those actually brought before it. It is within the discretionary powers of the Attorney General to charge some offenders and decline to charge others.
See: Abacha Vs The State (2002) 11 NWLR (779) 437 at 499 D. One of the main actors in the commission of an offence could be considered to be of more benefit to the prosecution as a prosecution witness in order to secure the conviction of “bigger fish”. PER MOORE A. A. ADUMEIN, J.C.A.
CRIMINAL LAW: CIRCUMSTANCES WHERE AN ACCUSED PERSON SHOULD BE PUT ON HIS TRIAL
The law is settled that “an accused person should not be put on his trial if there is no link between him and the offence” with which he is charged – Mr. Donald O. Ikomi & Ors. V. The State (1986) 3 NWLR (Pt. 28) 340 at 358 para. H per Nnamani, JSC. However, an information or charge will not be quashed merely because the court thinks that the prosecution may not succeed, See Mr. Donald O. Ikomi & Ors. V. The State (Supra) at 360, para. A where the Supreme Court, per Nnamani, JSC held thus:
“……. a court will not quash an indictment because an examination of the depositions has led to the conclusion that the prosecution will not succeed. See R V. Chairman of London Sessions ex-parte Downess (1954) 1 Q.B.1; 37 Cr. App. R.148. Also R V. McDonnel (1965) 1 Q.8.233, (1966) 50 Cr. App. R. 5.”
His Lordship, Nnamani, JSC then proceeded to hold in Mr. Donald O. Ikomi V. The State (supra) at 362t paras E – F as follows:
“In my view, once there are circumstances from which it can be justly inferred that an accused person could have committed the offence, he should be put on his trial. Whether there are other co-existing circumstances which would weaken that inference, or whether the evidence leads irresistibly to accused person’s guilt, can only be determined at the trial.”
In the ‘sister’ appeal – Appeal No, CA/I/232C/2010, this court, per Kekere-Ekun, JCA stated thus:
“As rightly observed by learned counsel for the respondent, the facts of this case are distinguishable from the facts in Abacha Vs The State (supra). In the instant case there are substantial allegations linking the appellant with unauthorised dealings with the money earmarked for the Governor’s House project. He has denied the allegations. At this stage of the proceedings, as held in the case of Ikomi Vs The State (supra) the question to be answered is whether there is any ground for proceeding with his trial based on the information and proofs of evidence filed. His guilt or otherwise is not being considered at this stage. I am inclined to agree with the learned trial Judge that having regard to the proofs of evidence filed in this case, extracts of which have been reproduced above a prima facie case has been disclosed, which requires some explanation from the appellant.” PER MOORE A. A. ADUMEIN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
ENGR. SOLA AKINWUMI Appellant(s)
AND
THE STATE Respondent(s)
MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant, as 3rd accused, was charged together with Arc. Lanre Oladeji (1st accused) and Chief Lere Adebayo (2nd accused) in Charge No. HOS/11C/2004, filed in the High Court of Osun State, Osogbo Judicial Division, holden at Osogbo with the following offences:
“COUNT 1:
1. ARC. LANRE OLADEJI “M”
2. CHIEF LERE ADEBAYO “M”
3. ENGR. SOLA AKINWUMI “M”
at various time between 30th august, 2001 and 2nd May, 2003 at Osogbo in the Osogbo Judicial Division conspired to commit a felony to wit; stealing and thereby committed an offence, contrary to and punishable under S.516(4) of the Criminal Code, Cap, 30 Vol. II, Laws of Osun State of Nigeria, 2003.
COUNT II:
1. ARC, LANRE OLADEJI “M”
2. CHIEF LERE ADEBAYO “M”
3. ENGR. SOLA AKINWUMI “M”
On or about same date, time and place in the aforesaid Judicial Division stole the sum of N126,467,725.85k (one hundred and twenty-six million, four hundred and sixty-seven thousand, seven hundred and twenty-five Naira, eighty-five Kobo) property of the Osun State Government (OSSG) and thereby committed an offence, contrary to and punishable under Section 390(5) of the Criminal Code, Vol. II, Cap. 34 Laws of Osun State of Nigeria, 2003.
COUNT III:
1. CHIEF LERE ADEBAYO “M”
2. ENGR, SOLA AKINWUMI “M”
On or about the same date, time and place in the aforesaid Judicial Division by means of fraudulent device or trick induced one Lanre Oladeji ‘M’ to obtain the sum of N126,467,725.85K (one hundred and twenty-six million, four hundred and sixty-seven thousand, seven hundred and twenty-five Naira, eighty-five Kobo) property of the Osun State Government (OSSG) and thereby committed an offence, contrary to and punishable under section 421 of the Criminal Code, Cap. 34, Vol, II, Laws of Osun State of Nigeria, 2003.
COUNT IV:
1. CHIEF LERE ADEBAYO “M”
2. ENGR. SOLA AKINWUMI “M”
On or about the same date, time and place in the aforesaid Judicial Division under the colour of your employment in the Osun State Government corruptly received from ARC. Lanre Oladeji ‘M’ the sum of N85m (eighty five million Naira) on account of the illegal release of the sum of N126,467,725,85k (one hundred and twenty-six million, four hundred and sixty-seven thousand, seven hundred and twenty-five Naira, eighty-five kobo) property of the Osun State Government and thereby committed an offence, contrary to and punishable under S. 98 (1) of the Criminal Code, Cap. 34, Vol. II, Laws of Osun State of Nigeria, 2003.
COUNT V:
1. ARC LANRE OLADEJI “M”
2. CHIEF LERE ADEBAYO “M”
3. ENGR. SOLA AKINWUMI “M”
On or about the same date, time and place in the aforesaid Judicial Division received by means of a felony to wit; stealing the sum of N126,467,725.85k property of the Osun State Government and thereby committed an offence, contrary to and punishable under S. 427 of the Criminal Code, Cap. 34, Vol. II, Laws of Osun State of Nigeria, 2003.
COUNT VI:
1. CHIEF LERE ADEBAYO “M”
2. ENGR. SOLA AKINWUMI “M”
On or about the same date, time and place in the aforesaid mentioned Judicial Division being agents of Osun State Government (OSSG) corruptly obtained the sum of N85m (eighty-five million Naira) from Arc. Lanre Oladeji as consideration for showing favour in the illegal release of the sum of N126,467,725.85k from the Funds of Osun State Government and thereby committed an offence contrary to and punishable under Section 494 (1) (a) of the CC Cap. 34 II Laws of Osun State, 2003.
COUNT VII:
1. CHIEF LERE ADEBAYO “M”
On or about 27 August, 2002, demanded and obtained from ARC. LANRE OLADEJI ‘M’ the sum of N10m (ten million Naira) property of Osun State Government and thereby committed an offence, contrary to and punishable under S. 404 (1) (a) of the Criminal Code, Vol. II, Cap. 34, Laws of Osun State of Nigeria, 2003.
COUNT VIII:
1. ARC LANRE OLADEJI “M”
2. CHIEF LERE ADEBAYO “M”
3. ENGR. SOLA AKINWUMI “M”
On or about and between 30th August, 2001, in the Osogbo Judicial Division fraudulently received the sum of N126,467,725.85k property of Osun State Government (OSSG) and thereby committed an offence contrary to and punishable under Section 427 of the Criminal Code 34, Volume II, Laws of Osun State of Nigeria, 2003.”
The appellant was the Secretary to Osun State Government while Chief Lere Adebayo was the State Commissioner for Finance between 1999 and 2003. Both of them (the appellant and Chief Lere Adebayo) were saddled with the responsibilities of supervising and managing the Osun State New Governor’s Office Project with Arc, Lanre Oladeji as a consultant. Funds for the project were released to the consultant through a designed account known as Bill I account. The appellant and Chief Lere Adebayo were accused of colluding with the consultant – Arc. Lanre Oladeji to steal Osun State funds meant for the said project, among other offences, as per the charge or information reproduced above.
Upon arraignment in the court below, each of the accused persons, including the appellant, pleaded not guilty. Chief Lere Adebayo and the appellant, by a motion on notice dated the 15th day of February, 2005 and filed on the same day, sought the following relief:
“An Order quashing/dismissing all the 8 counts and Statements of Offences in the information referred to as Charge No. HOS/11C/2004 purportedly filed before this Honourable Court against Chief Lere Adebayo and Engr, Sola Akinwumi as the 2nd and 3rd accused persons in the said charge.”
The motion on notice was heard and dismissed by Bada, J. (as he then was). The appellant was not satisfied with decision dismissing the said motion on notice and filed a notice of appeal containing the following grounds of appeal, excluding their particulars:
“GROUNDS OF APPEAL
A. The learned trial Judge erred in law when he held that he has jurisdiction to try the accused person, the offence being alleged, having been committed in Ibadan, Oyo State, outside the jurisdiction of the honourable court, presided over by the learned trial judge.
B. The learned trial judge erred in law when he held that he has jurisdiction to try the accused person, even when the accused person is being prosecuted contrary to the provisions of Section 211 of the 1999 Constitution and Section 342 of the Criminal Procedure Law of Osun State.
C. The learned trial judge erred in law when he held that the proof of evidence attached to the information filed was cogent and valid enough to sustain the offences of conspiracy, stealing, receiving and obtaining.
In accordance with the Rules of this court, the parties filed and exchanged briefs of argument. At the hearing of the appeal, learned counsel for the appellant adopted and relied on the appellant’s brief dated the 12th of October, 2011 and filed on the 14th day of October, 2011 and urged the Court to allow the appeal and to set aside the ruling of the lower court and to quash/dismiss the charge preferred against the appellant and his co-accused persons. Learned counsel for the respondent, on the other hand, adopted and relied on the respondent’s brief dated the 21st day of January , 2012 and filed on the 23rd day of January, 2012 but deemed properly filed and served on the 2nd day of February, 2012 and urged the court to dismiss the appeal.
In the appellant’s brief the issues identified for determination are:
1. Whether the learned trial judge was right in law to hold that he has jurisdiction to try the Appellant in Osogbo, Osun State of Nigeria, when it had been established that the alleged offence was committed in Ibadan, Oyo State of Nigeria, clearly outside the jurisdiction of the learned trial judge.
2. Whether the learned trial judge was right in law to hold that the Appellant can be tried upon as (sic) information, which is in flagrant violation of S. 211 of the 1999 Constitution of the Federal Republic of Nigeria, and S. 342 of the Criminal Procedure Law of Osun State of Nigeria.
3. Whether the trial judge was right in law to have held that the proof of evidence attached to the information filed was cogent and valid enough to sustain the offences of conspiracy, stealing, receiving and obtaining by fraud.”
The respondent, on the other side, distilled the following issues for determination:
1. Whether the learned trial judge was not right to hold that Osun State High Court of Justice has jurisdiction to try the accused/appellant for the offences contained in the charge.
2. Whether the trial judge was not right to hold that the information was not preferred in violation of section 211 of the 1999 constitution and section 342 of Criminal Procedure Law of Osun State.
3. Whether the trial court was not right to hold that the information and proof of evidence disclosed a prima facie case against the appellants.
As can be seen from the issues formulated by the parties, reproduced above, the issues distilled by the respondent are very similar to those of the appellant. I find it convenient, therefore, to determine this appeal on the issues framed by the appellant.
At this juncture, I wish point out that Chief Lere Adebayo, the 2nd accused in Charge No, HOS/11C/2004 and the 1st applicant in the motion notice filed on 15/02/2005, the ruling thereon which is the subject matter of this appeal, filed a separate notice of appeal containing grounds and particulars that are identical, verbatim seriatim, as the appellant’s grounds of appeal. Chief Lere Adebayo’s appeal was heard and determined earlier by this court in Appeal No. CA/I/232C/2010. The issues identified by the parties, Chief Lere Adebayo as appellant and The State as respondent in Appeal No. CA/232/2010 and the arguments canvassed thereon, save for issue No. 3, are substantially thesame as those in this appeal. The appellant’s brief in this appeal was settled by Folasade A Aofolaju, Idrees Abiodin Mikaheel, Esq. and Babatola O. Onibonoje, Esq, of Adeniyi Akintola SAN & Co. (Solicitors) the same set of solicitors who settled the appellant’s brief in Appeals No. CA/I/232C/2010. In both appeals, the respondent’s brief was settled by N.N. Adegboye of Yusuf O, Ali & Co. It is also instructive that the legal authorities cited and relied by the parties in both appeals are the same.
In Appeal No, CA/I/232C/2010, my Lord, Honourable Justice Kekere-Ekun, JCA painstakingly analysed all the three issues reproduced above and in very comprehensive, elaborate and eloquent ways resolved them. I think it will be judicious use of judicial time to reproduce the decision of this court in Appeal No. CA/I/232/2010, per Kekere-Ekun, JCA, in respect of Issues 1 and 2 as follows:
“Issue 1
Whether the learned trial Judge was right in law to hold that he has jurisdiction to try the appellant in Osogbo, Osun State of Nigeria, when it has been established that the alleged offence was committed in Ibadan, Oyo State of Nigeria, clearly outside the jurisdiction of the learned trial Judge.
In support of this issue, learned counsel for the appellant submitted that the sum of N126, 467,725.85 subject of counts 2, 3, 4, 5 and 8 of the information was part of N190 million being the total cost of the contract awarded to Tropics Consult Ltd. by the Osun State Government in respect of the Bola Ige House project. He noted that Architect Lanre Oladeji is the president of the company. He stated further that the total sum of money paid into the National Bank, Ibadan branch account of Tropics Consult Ltd. by the accounts department of the Governor’s office, less deductions was N171 million. He contended that the contract sum was paid into the company’s account in Ibadan and not Osogbo and that from the proof of evidence at pages 3 – 4 of the record it was clear that the transaction on the account took place in Ibadan outside the jurisdiction of the High Court of Osogbo, For this reason he submitted that the High Court of Osogbo lacked jurisdiction to entertain the charges. He referred to Sections 64 (a), (b) and (c) of the Criminal Procedure Law of Osun State. He also cited a plethora of authorities on the fundamental nature of jurisdiction including: Ebhodaghe Vs Okoye (2004) 78 NWLR (905) 472 at 500 C; Ugwuanyi Vs NICON Insurance Plc. (2004) 15 NWLR (897) 612 at 634 F – G. Madukolu Vs Nkemdilim (1962) 2 ALL NLR 587 at 583. Learned counsel further contended that as the transaction that gave rise to the charge was between the Osun State Government and Tropics Consult Ltd,, which is a limited liability company, the company ought to have been charged along with the accused persons and that failure to bring the proper party before the court robbed the court of jurisdiction to entertain the information. He referred to Adisa Vs Oyinwola (2000) 10 NWLR (674) 116 at 180 B; Okon Vs Bob (2004) 7 NWLR (854) 378 at 396 D.
In reply to the above submissions, learned counsel for the respondent submitted that where there is a dispute as to which State High Court has jurisdiction in a matter, the issue would be determined by reference to the cause of action, the Constitution of the Federal Republic of Nigeria and other laws conferring jurisdiction. He referred to: N.B.C. Vs Nwaneri (2000) 14 NWLR (686) 30 at 39. He submitted that the relevant processes to be examined to determine the cause of action are the information and proof of evidence and not the averments in the affidavit in support of the appellant’s application before the trial court. He referred to: U.B.N. Vs Umeoduagu (2004) ALL FWLR 1552 at 1561; (2004) 13 NWLR (890) 352.
In the course of his submissions, learned counsel made several allusions to the fact that the proof of evidence was not compiled as part of the record of appeal. This assertion is not borne out by the record before us. This appeal was transferred to the Akure Division of the Court of Appeal from the Ibadan Division. On 30/7/2010 the Court of Appeal, Ibadan received the record of appeal that is now before the court. It is not properly compiled, as many of the pages are mixed up. Be that as it may, the record contains the proof of evidence at pages 4 – 28 thereof.
Learned counsel referred to an extract of the ruling appealed against wherein the learned trial Judge reproduced part of the summary of the evidence of some of the proposed witnesses and the appellant herein derived from the proofs of evidence, and submitted that that delivery of the money, an element of the offence, took place in Osogbo, Osun State. He submitted that by virtue of section 12 (A) (2) of the Criminal Code Law of Osun State the High Court of the State has the requisite territorial jurisdiction to adjudicate over the charge against the accused persons, including the appellant. He submitted that the act of fraudulently converting sums of money meant for the project by the accused persons took place at Osogbo where the conspiracy was perfected and the money delivered. Relying on the case of Patrick Njovens Vs The State (1973) ALL NLR 377, he submitted that the fact that a single element of the offences for which the appellant was charged occurred in Osun State is sufficient to confer jurisdiction on the Osun State High Court. He submitted that presence of the appellant within Osun State when other elements of the offence were carried out elsewhere is also sufficient to confer jurisdiction on the court.
He contended that there is nothing in Section 64 (a), (b) and (c) that robs the court of jurisdiction. He referred to subparagraph (d) of the section, not alluded to by learned counsel for the appellant, and submitted that it is a complete answer to the issue. He submitted that if several elements of an offence are committed in different divisions or districts, a court having jurisdiction in any of the divisions or districts can entertain the matter, He noted that Section 12 (A) (b) of the CPL confers jurisdiction on the State High Court in instances where the accused was apprehended within the State even if the initial element of the offence took place in another State. He referred to Njovens Vs The State (supra). He submitted that in the plethora of cases on jurisdiction relied upon by learned counsel for the appellant, including: Ebhodage v. Mike Okoye (supra); Ugwuanyi v. Nicon Insurance Plc (supra), the
issue of the territorial jurisdiction of the court did not arise.
Furthermore the cases were not decided on the principles of criminal law.
On the issue of failure to join proper parties, learned counsel submitted that the Attorney-General reserves the right to decide who to charge to court and for what offence and that the failure to charge a co-suspect to court would not rob the court of jurisdiction to try the accused. He submitted that the concept of non-joinder is inapplicable in criminal cases. He urged the court to resolve this issue against the appellant.
I have given careful consideration to the submissions of both learned counsel The appellant herein was charged with conspiracy, stealing, fraudulent inducement, receiving, and obtaining the various sums of money alleged in the information. The offences are alleged to have been committed at Osogbo, in the Osogbo Judicial Division of Osun State. It is the appellant’s contention that the offences were committed in Ibadan, Oyo State outside the jurisdiction of the Osun State High Court.
As correctly submitted by learned counsel for the respondent, in determining this issue, or any other issue arising from a challenge to the information filed against the appellant, the processes to be considered are the proofs of evidence filed along with the information, Any information supplied by way of affidavit evidence would not be relevant. This is because the essence of an application to quash charges in an information is that the information is inherently defective for one reason or the other or that the proofs of evidence do not establish a prima facie case against the appellant sufficient to warrant his being called upon to provide some explanation.
Some of the facts that could be gathered from the proofs of evidence are that the project for which money was disbursed was the construction of the new Governor’s Office in Osogbo, Osun State. Lanre Oladeji (the 1st accused) was the architect who designed the building and was the consultant for the project. A Bill I account was created for the project by the office of the Accountant General. According to A.F. Olatoye (1st PW) at page 6 of the record:
“the Accounts Division of the Bureau of General Services was directed to prepare vouchers in the name of Tropics Consult i.e.
Arc. Oladeji… Thereafter, all fund released for Bill I account was paid and collected by Tropics Consult i.e. Arc. Oladeji.”
The 2nd PW Kayode Fashola stated that Arc. Oladeji operated an account with the Ibadan branch of National Bank of Nig. Ltd.
He stated at page 9 of the record:
“I could remember a period where our customer at Ibadan, Arc. Lanre Oladeji gave instruction to the branch to help release fund to Chief Lere Adebayo. We noted that cheque no. 419 which was drawn by Arc. Lanre Oladeji of Tropics Consult Ltd, dated 27th August 2002 for a sum of N10, 000, 000.00 was brought to the bank by the drawer. He requested for higher denomination which we did not have at that particular point in time. As soon as we got the higher denominations of N500 notes, I (Kayode Fasota) on behalf of the Bank, took the money to Chief Lere Adebayo at his residence at GRA Osogbo.”
At page 14 of the record, the 1st accused, Lanre Oladeji stated:
“The N85, 000, 000.00 was paid in a number of instalments. A lot of the money was collected in bits and polled until the amount required was gathered. This was to avoid raising eye brows and suspicions. When the money was ready, it was moved to Osogbo and the SSG would be alerted. When the money Came and it was bulk, i.e. when it was more than N10, 000, 000.00, the SSG would ask me to take it to the Commissioner. He would later confirm to me that the Commissioner said he had “seen me”. Three times I did this –
N25, 000, 000,00, N20, 000, 000.00 and N20, 000, 000’00 and four times the SSG himself collected N5, 000, 000,00, N5, 000, 000.00, N5, 000, 000,00 and N5, 000, 000.00,”
At page 77, Arc. Lanre Oladeji stated:
“I would issue cheques to the Bank and authorise the Bank to move the money to their Osogbo branch, Via my instructions the Manager delivered such moneys to Chief Lere Adebayo.”
As noted by the learned trial Judge in his ruling, the appellant denied the allegations.
However for the purpose of determining this issue, what is clear from the proofs of evidence is that some elements of the various offences charged took place in Osogbo. The appellant has raised the issue of the territorial jurisdiction of the Osun State High Court to try him. Reliance was placed on Section 64 (a), (b) and (c) of the Criminal Procedure Law Vol. II Cap 35, Laws of Osun State of Nigeria 2003, which provides as follows:
S.64 (a) “an offence shall be tried or inquired into by a court having jurisdiction in the division or district where the offence was committed.”
(b) when a person is accused of the commission of any offence by reason of anything which has been done, or of anything which has been omitted to be done, and of any consequence which has ensued, such offence may be tried or inquired into by court having jurisdiction in the division or district in which any such thing has been done or omitted to be done, or any such consequence has ensured.”
(c) when an act is an offence by reason of its relation to any other act which is also an offence a charge of the first mentioned offence may be tried or inquired into by a court having jurisdiction in the division or district either in which it happened, or in which the offence, with which it was so connected happened.”
In the book, Criminal Procedure in Nigeria, Law and Practice by Oluwatoyin Doherty at pages 159- 167 the learned author explained the distinction between various types of jurisdiction: extra territorial jurisdiction, territorial jurisdiction and local jurisdiction. The relevant considerations for the purposes of this judgment are territorial and local jurisdiction. With regard to territorial jurisdiction, the learned author had this to say at page 160:
“Nigerian courts can try any person, citizen or alien who is alleged to have committed an offence in Nigeria. The power to try an accused person for an offence committed within the country is divided between component parts of the country.
Thus, one or more States within a country may possess jurisdiction to try an accused person. The provisions governing territorial jurisdiction in Nigeria are to be found in ss. 12 and 12A of the CCs [Criminal Codes], s.4 of the PC and s.4 of the Penal Code (Northern States) Federal Provisions Act 1960.”
With regard to local jurisdiction, the learned author stated at page 163 that where an offence is committed within the boundaries of a State, it is necessary to determine which court within the State is competent to try the offender. She explained that as High Courts within a State fall within a judicial division while Magistrates courts fall within a magisterial district, a person alleged to have committed an offence would be arraigned before a court in the judicial division or magisterial district where the alleged offence was committed.
The appellant’s contention is that the offences alleged against him were committed in Ibadan, Oyo State. The extracts from the proofs of evidence referred to above show that some elements of the offence took place in Osogbo, Osun State. An examination of Section 64 (a), (b) and (c) of the CPL reproduced above shows that the section relates to local jurisdiction, as defined earlier i.e. where there is a dispute as to which judicial division or magisterial district within a particular State has jurisdiction to try an offence. I am therefore in agreement with learned counsel for the respondent that the applicable law is Section 12A (2) of the Criminal Code Law of Osun State, Vol. II Cap. 34, which provides:
12A (2) “With regard to any such offence which is of such a nature that it comprises several elements, if any acts or omissions or event actually occur, which if they all occurred in Osun State, would constitute an offence, and any of such acts or omissions or events which occur in Osun State, although all or some of the other acts or omissions or events which, if they occurred in Osun State would be elements of the offence, occur elsewhere than in Osun state then:
a) If the act or omission which in the case of an offence committed wholly in Osun State would be the initial element of the offence, occurs in Osun State, the person who does that act or makes that omission is guilty of an offence of the same kind and is liable to the same punishment as if all the subsequent elements of the offence had occurred in Osun State; and
b) If that act or mission occurs elsewhere than in Osun State and the person who does that act or makes that omission afterwards comes into Osun State, he is by such coming into the state guilty of an offence of the same kind and is liable to the same punishment, as if that act or omission had occurred in Osun State and he had been in Osun State when it occurred.”
In his brief of argument, learned counsel for the respondent submitted that from portions of the evidence extrapolated from the proofs of evidence referred to earlier, delivery of the money, which constitutes an element of the offence took place in Osogbo, Osun State. He submitted thus in paragraph 5.14 at page 9 of his brief:
“…it should be noted that the appellant was charged with diverse offences ranging from conspiracy, stealing, diversion of funds to fraudulent receipt of fund. … The money involved belongs to Osun state, the project for which the money was meant is located in Osun State, the appellant was an official of Osun state Government, the conspiracy and diversion took place in Osun State and the fraudulent receipt took place in Osun State, It therefore goes without saying that it is Osun State High Court that has jurisdiction to try the offence.”
I agree with the view of learned counsel for the respondent. The appellant and the other accused persons were all officials of Osun state Government and the project was to be executed in Osun State. The release of the funds, according to the proofs of evidence took place in Osogbo. The conspiracy allegedly took place in Osogbo. The alleged receipt of money also took place in Osogbo. Thus the fact that the funds were initially paid into an account held with National Bank, Ibadan Branch in Oyo State would not rob the Osun State High Court of jurisdiction to try the offences. I agree with learned counsel for the respondent that the initial element of all the counts of the charge is conspiracy, which allegedly took place in Osogbo. Furthermore, pursuant to Section 12A (b) of the Criminal Code and on the authority of Njovens Vs The State (supra), even if the part of the offence was committed outside Osun State, while other elements occurred within Osun State and the accused persons subsequently entered Osun State whether voluntarily or not, they became triable by the High Court of Osun State. In the instant case the facts alleged are that the appellant received part of the alleged stolen and/or diverted funds in Osogbo.
I therefore hold that the High Court of Osun State, sitting at Osogbo has jurisdiction to try the offences with which the appellant is charged.
With regard to the contention of learned counsel for the appellant that the proper parties are not before the court, the submission demonstrates a misconception of criminal law and procedure. In a criminal trial, the onus is on the prosecution to prove its case against the accused persons beyond reasonable doubt. It must prove its case against each accused person separately. Where it fails to do so any doubt would be resolved in favour of the accused. The issue of proper parties in a criminal trial therefore does not arise. It is not an issue that affects the jurisdiction of the court to try those actually brought before it. It is within the discretionary powers of the Attorney General to charge some offenders and decline to charge others.
See: Abacha Vs The State (2002) 11 NWLR (779) 437 at 499 D. One of the main actors in the commission of an offence could be considered to be of more benefit to the prosecution as a prosecution witness in order to secure the conviction of “bigger fish”. The cases of Adisa Vs Oyinwola and Okon Vs Bob (supra) relied upon by learned counsel for the appellant were civil actions and not relevant to the prosecution of a criminal charge. This issue is resolved against the appellant.
Issue 2
Whether the learned trial Judge was right in law to hold that the appellant can be tried upon an information, which is in flagrant violation of S. 211 of the 1999 Constitution of the Federal Republic of Nigeria, and S.342 of the Criminal Procedure Law of Osun State of Nigeria.
The argument of learned counsel for the appellant under this issue is that the information before the court violates Section 211 of the 1999 Constitution and Sections 341, 342 and 343 of the Criminal Procedure Law of Osun State and is therefor incompetent, illegal, invalid and liable to be struck out.
The grounds for this submission are that the case at the court below is being prosecuted by a private prosecutor and the conditions stipulated under the Constitution and the Criminal Procedure Law of Osun for private prosecution have not been complied with. He noted inter alia, that learned senior counsel, Yusuf Ali, SAN took over the prosecution of the case without a certificate from the Attorney-General of Osun State declining to prosecute and without entering into any recognisance. He referred to Ugwuanyi Vs NICON Insurance Plc. (2004) 15 NWLR (897) 612 at 633G and submitted that upon a literal interpretation of the relevant provisions of the CPL the information should be quashed on the ground that it was not signed in accordance with the dictates of the law, He also relied on: Ezeze Vs The State (2004) 14 NWLR (894) 491 at 502 A – G; Fawehinmi Vs A.G, Lagos State (No. 1) (1989) 3 NWLR (112) 707. On the interpretation of Section 211 of the 1999 Constitution he referred to: Abacha Vs The State (supra), He contended that Mrs. A.A. Adewemimo who signed the information usurped the powers of the Attorney General of Osun State thereby rendering the information incompetent.
Learned counsel for the respondent in reaction to the above submissions submitted that the information is signed by Mrs. A.A. Adewemimo, a legal officer in the office of the Attorney General of the State is in accordance with Section 211 of the Constitution. On the authority of the Attorney General to delegate his powers, he referred to Attorney General Western Nigeria Vs The African Press & Anor, (1965) ALL NLR (Reprint) 6 at 10 where the Supreme Court considered the provisions of Section 47 of the 1963 Constitution, which is in pari materia with Section 211 of the 1999 Constitution. He also referred to: Adebotu Vs State (1976) 4 SC 27 at 50. He submitted that Sections 342 and 343 of the CPL are not applicable in the circumstances of this case because the information upon which the charge was premised was preferred by the Attorney General of the State and not a private prosecutor. He submitted that the trial before the lower court was initiated by the Attorney General and was already in motion before the services of a private legal practitioner, Yusuf Ali, SAN were engaged to lead the team from the Ministry of Justice. He submitted that the learned Attorney General did not decline to prosecute and therefore the filing of an information by the learned silk and compliance with Sections 342 and 343 of the CPL would not arise. On the right of the Attorney General to brief private practitioners, he referred to the Supreme Court decision in: D.P.P. Vs Akozor (1962) ALL NLR (Reprint) 235 at 240 where the provisions of Section 97 of the Nigeria (Constitution) Order in Council 1960 (which is in pari materia with Section 211 of the 1999 Constitution) were considered.
He submitted that the case of Ezeze Vs State (supra) relied upon by learned counsel for the appellant is not applicable to the facts of this case because the information in this case was preferred in accordance with the law. He contended that the reference to Abacha Vs State (supra) on this issue was made out of con. In order to determine this issue it is necessary to consider the provisions of Section 211 of the 1999 Constitution, Sections 341, 342 and 343 of the CPL and the information contained at pages 1 – 3 of the record.
Section 211 of the Constitution provides:
211 (1) – the Attorney-General of a State shall have power:-
a. to institute and undertake criminal proceedings against any court of law in Nigeria other than a court-martial in respect of any offence created by or under any law of the House of Assembly;
b. to take over and continue any such criminal proceedings that might have been instituted by any other authority or person; and
c. to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person,
(2) The powers conferred upon the Attorney-General of a State under subsection (1) of this section may be exercised by him in person or through officers of his department.
(3) In exercising his powers under this section, the Attorney-General of a State shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
Sections 341, 342 and 343 of the Criminal Procedure Law of Osun State provide:
341 (1) All information shall, subject to the provisions of subsection (2) and Section 342, be signed by a law officer.
(2) Where the Governor shall for reasons of public convenience think fit, an an information may be signed by any other public officer or person whom the Governor may designate. (Emphasis mine)
342. The registrar shall receive an information from a private person if –
a. It has endorsed thereon a certificate by a law officer to the effect that he has seen such information and declined to prosecute at the public instance the offence therein set forth; and
b. such private person has entered into a recognizance in the sum of fifty pounds, together with one surety to be approved by the registrar in the like sum, to prosecute the said information to conclusion at the times at which the accused shall be required to appear and to pay such costs as may be ordered by the court, or, in lieu of entering into such recognizance shall have deposited one hundred Naira in court to abide the same conditions.
343. Where any private person has complied with the provisions of Section 342 the information shall be signed by such person and not by a law officer or other person designated by the minister as aforesaid and such person shall be entitled to prosecute the information but nothing in this section shall be construed so as to exclude the provisions of Section 211 of the Constitution of the Federation, (Emphasis mine)
I have examined the information contained at pages 1 – 3 of the record. It was signed by Hon. Gbadegesin Adedeji, Hon. Attorney General and Commissioner for Justice, Osun State. The proof of evidence at pages 4 – 10 of the record was signed by Mrs. A.A. Adewemimo, Chief State Counsel for the Hon. Attorney General and Commissioner for Justice. There is nothing in the record before the Court to suggest that the Hon. Attorney General of the State declined to prosecute or that Yusuf Ali, SAN sought to prosecute the appellant and the other accused persons as a private prosecutor. By the provisions of section 211 (2) of the 1999 Constitution reproduced above, the Attorney General of a State may exercise his powers in person or through officers of his department. As rightly observed by the learned trial Judge the information was signed by the Attorney General himself. From my examination of the record, the proof of evidence that accompanied the information was signed by Mrs. A.A. Adewemimo, Chief State Counsel (in other words “a law officer”) on behalf of the Attorney General of the State. It would not be correct to say, as contended on behalf of the appellant that a Chief State Counsel in the Ministry of Justice has usurped the powers of the Attorney General where he/she signs a court process on his behalf. There must be clear evidence that he/she was not so authorised. There is a legal presumption that judicial and official acts have been rightly and regularly done until the contrary is proved. See Section 150 (1) of the Evidence Act. See also: Ogbuanyinya Vs Okudo (1990) 7 SC (Pt. 1) 66; Timothy Vs F.R.N. (2008) ALL FWLR (402) 1136 at 71151 – 1152 G – D.
The argument of learned counsel for the appellant regarding the subsequent inclusion of the learned silk, Yusuf Ali, SAN to lead the team from the Ministry of Justice is merely a storm in a teacup. There is nothing in the record to suggest that Mr. Yusuf Ali, SAN is prosecuting the matter in his private capacity. Indeed at page 40 of the record during the proceedings of 22/2/05 he announced his appearance leading several senior members of the Bar including R.A. Siyanbola, D.P.P., Mrs. K.M. Akano, Asst. Director, and Mrs. A.A, Adewemimo, Chief State Counsel, all from the Ministry of Justice Osun State. This is a clear indication that it was not a private prosecution. It is my considered view that Sections 342 and 343 of the CPL are not applicable in the circumstances of this case. I hold that the information signed by the Attorney General and the proof of evidence signed by a Chief State Counsel in the Ministry of Justice, Osun State are competent. This issue is accordingly resolved against the appellant.”
I agree completely with the analysis and decision of His Lordship, Kekere-Ekun, JCA in respect of Issue Nos. 1 and 2 in Appeal No. CA/I/232/2010, reproduced above, and I adopt same as mine in the resolution Issues 1 and 2 in this appeal.
Issue 3
“Whether the trial judge was right in law to have held that the proof of evidence attached to the information filed was cogent and valid enough to sustain the offences of conspiracy, stealing, receiving and obtaining by fraud.”
The learned counsel for the appellant analysed the proofs of evidence and submitted that the proofs of evidence “together with the information and the charge do not warrant the court to call on the Appellant to stand trial” as they (the proofs of evidence) were not “cogent and valid enough to sustain the offences of conspiracy, stealing, receiving and obtaining by false pretence”. Counsel then contended that “if the necessary ingredients of the offence are not contained in the proof of evidence or are insufficient to sustain the charge, the information should be quashed, for an accused should not be made to face trail (sic) he is not supposed to face at the outset, when no prima facie case has been made to make him face trail (sic) on an information.” In support of this argument, learned counsel relied on the case of Abacha V. State (2002) 11 NWLR (Pt. 779) 437 at 485, paras. C-D.
After referring to the meaning of prima face case and how it is established as decided in Abacha V. State (supra), learned counsel for the appellant submitted that in this case “the proof of evidence does not disclose a prima-facie case against the Appellant and on the authority of ABACHA VS. THE STATE (Supra), the information should be quashed”. It was also submitted that the information preferred against the appellant amounted to an abuse of court process and a violation of his fundamental rights and, accordingly, should be struck out.
Learned counsel for the respondent, in response to the appellant’s argument, submitted that the proofs of evidence “disclose that offences have been committed and the appellant herein in collusion with the other accused persons are sufficiently linked with the commission of the offences” and that The State could proceed against him on the authority of Ikomi V. State (1986) 1 NSCC 730 at 742 – 746. The respondent contended that the case of Abacha V. State (Supra) relied on by the appellant is distinguishable from this case.
The facts of this case have earlier been summarized. The information filed against the appellant and his co-accused persons is accompanied by proofs of evidence. As stated earlier, the appellant was the Secretary of Osun State Government (SSG) at the material time. In his statement to the police, which spans pages 4 – 6 of the record, A.F. Olatoye formerly in the office of the Governor of Osun State, Osogbo, gave a narrative on the Osun State New Governor’s Office Project and how Bill I account was opened for the contract awarded in respect of the project. According to Olatoye, the appellant, as SSG, was the Chairman of the State Tenders’ Board while the then Commissioner for Finance Chief Lere Adebayo was a member.
According to him, the report of the Board on any contract is made to the Governor for approval and that in the instant case, he stated thus:
“On the whole, a sum of N190,000,000,00 was released into the account. There were deductions made by the Accounts Division of the Governor’s Office. After collecting a sum of N190,000,000.00 Arc. Oladeji requested for more money and upward review of the contract sum. Series of meetings were held and the character of Arc. Oladeji was presented in a Memo to the SSG after the meetings, his request for more money into bill 1 account was not approved. What happened to the fund released to Arc. Oladeji was between him and the SSG.”
(Underlining mine for emphasis)
In his statement, Kayode Fashola of National Bank of Nigeria, Osogbo branch, said that he got to know Arc. Lanre Oladeji in 2001 when he (Kayode Fashola) was Relationship Manager in Ibadan. He explained the role he and his bank played in the matter as bankers and how they carried out various instructions from Arc. Lanre Oladeji including releasing funds to Chief Lere Adebayo and carrying money to Chief Lere Adebayo and Engr. Sola Akinwumi (the appellant).
In his various statements, forming parts of the proofs of evidence, Arc. Lanre Oladeji made damaging and serious allegations against the appellant. For example, in his first statement made on the 24th day of February, 2004 (at pages 12 to 13 of the record), Arc. Lanre Oladeji specifically alleged , inter alia, thus:
“During construction, certain aspects of the Project, including the Preliminaries and Security were put directly under our control. The total amount of this aspect was about N170,000,000.00. This money was given to us in about five installments’ as the Project progressed. In the course of the works, the then Secretary to the State Government, Engr. Sola Akinwumi called me and told me that I had to release part of the money that was in my care for a purpose and that the money so released would be returned to the Project later. He later met me again with the Commissioner for Finance, Chief Lere Adebayo and this matter was again raised and discussed. All of the money so taken from the Project I was told would be returned in time for payments for the respective services. The total money so released to them amounted to N85,000,000.00 (eighty-five million naira). The money had not been returned until handing over eventually took place….”
(Underlining for emphasis).
The proofs of evidence should be read together and if this is done, one will find no difficulty in agreeing with the respondent that the statements of A.F. Olatoye (PW1) and Kayode Fashola (PW2) are clearly corroborated by the statement of Arc. Lanre Oladeji and this is sufficient to enable the respondent to proceed with the criminal charges against the appellant and his ‘co-travellers’.
The law is settled that “an accused person should not be put on his trial if there is no link between him and the offence” with which he is charged – Mr. Donald O. Ikomi & Ors. V. The State (1986) 3 NWLR (Pt. 28) 340 at 358 para. H per Nnamani, JSC. However, an information or charge will not be quashed merely because the court thinks that the prosecution may not succeed, See Mr. Donald O. Ikomi & Ors. V. The State (Supra) at 360, para. A where the Supreme Court, per Nnamani, JSC held thus:
“……. a court will not quash an indictment because an examination of the depositions has led to the conclusion that the prosecution will not succeed. See R V. Chairman of London Sessions ex-parte Downess (1954) 1 Q.B.1; 37 Cr. App. R.148. Also R V. McDonnel (1965) 1 Q.8.233, (1966) 50 Cr. App. R. 5.”
His Lordship, Nnamani, JSC then proceeded to hold in Mr. Donald O. Ikomi V. The State (supra) at 362t paras E – F as follows:
“In my view, once there are circumstances from which it can be justly inferred that an accused person could have committed the offence, he should be put on his trial. Whether there are other co-existing circumstances which would weaken that inference, or whether the evidence leads irresistibly to accused person’s guilt, can only be determined at the trial.”
In the ‘sister’ appeal – Appeal No, CA/I/232C/2010, this court, per Kekere-Ekun, JCA stated thus:
“As rightly observed by learned counsel for the respondent, the facts of this case are distinguishable from the facts in Abacha Vs The State (supra). In the instant case there are substantial allegations linking the appellant with unauthorised dealings with the money earmarked for the Governor’s House project. He has denied the allegations. At this stage of the proceedings, as held in the case of Ikomi Vs The State (supra) the question to be answered is whether there is any ground for proceeding with his trial based on the information and proofs of evidence filed. His guilt or otherwise is not being considered at this stage. I am inclined to agree with the learned trial Judge that having regard to the proofs of evidence filed in this case, extracts of which have been reproduced above a prima facie case has been disclosed, which requires some explanation from the appellant.”
I completely agree with the views reproduced above expressed by learned brother and since the facts and circumstances of this case are in pari materia with those of Appeal No. CA/I/232C/2010, I am of the firm view that having regard to the totality of the facts disclosed by the proofs of evidence filed by the respondent, this is a fit and proper case where the appellant should face his trial in court.
This issue is, therefore, resolved against the appellant in favour of the respondent.
In sum, there is no merit in this appeal and it is hereby dismissed.
The decision contained in the ruling of Bada, J. (as he then was) in Charge No, HOS/11C/2004 is hereby affirmed.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother, MOORE A. A. ADUMEIN, JCA just delivered. I agree entirely with his reasoning and conclusion that the appeal lacks merit and ought to be dismissed, I also dismiss it and affirm the Ruling of the High Court of Osun State sitting at Osogbo in Charge No, HOS/11C/2004 delivered on 25/4/04 per Bada, J. (as he then was).
CHINWE EUGENIA IYIZOBA, J.C.A.: I had the privilege of reading in advance the lead judgment just delivered by my learned brother Adumein JCA. I agree with his reasoning and the decision that the appeal lacks merit.
The learned trial judge was right in refusing to quash the information filed against the appellant as the proof of evidence disclosed a link between the appellant and the offence charged. The prosecution must be allowed to present its case. It is only at the close of the prosecution’s case that the appellant can if he desires to take the risk make a no case submission. I agree that the appeal lacks merit. I also dismiss it and affirm the ruling of Bada J. (as he then was) in Charge No. HOS/11C/2004.
Appearances
PRINCE L A. MIKAHEEL with TOLA ONIBONOJE ESQ.,For Appellant
AND
N.N. ADEGBOYE ESQ.For Respondent
