FRN v. ADEMOLA (2021)

FRN v. ADEMOLA

(2021)LCN/15015(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, February 09, 2021

CA/A/419C1/2017

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

FEDERAL REPUBLIC OF NIGERIA APPELANT(S)

And

OLABOWALE TOLUWATOPE ADEMOLA RESPONDENT(S)

RATIO

CRIMINAL LAW: CIRCUMSTANCES A NO CASE SUBMISSION CAN BE MADE

The law is trite that a Court or the Defendant who contends that at the end of the case of the prosecution, the prosecution has not established the essential ingredients of the offence or that there is no evidence linking the Defendant with the commission of the offence or the evidence so far led is such that no reasonable Court will convict, can by the provisions of Sections 302 and 303 of the Administration of Criminal Justice Act, 2015 (ACJA) make a no case submission. While under Section 357 of ACJA a Defendant can be discharged where a Court finds that a case is not made out against the Defendant to sufficiently require him to put in his defence. In essence, the Court will discharge a Defendant if the no case submission is upheld. PER MOHAMMED BABA IDRIS, J.C.A.
CASE: POSITION OF THE LAW AS IT RELATES TO NO CASE SUBMISSION

Now, the law as it relates to no case submission is not whether the evidence against the accused is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring at least some explanation from the Defendant. In the case of AJIBOYE & ANOR VS. STATE (1995) LPELR – 300 (SC) it was held that:
“It is also settled by a plethora of authorities that a submission of “no-case” to answer may be properly made and upheld in the following circumstance as correctly stated by the lower Courts:
1. When there has been no evidence to prove an essential element in the alleged offence;
2. When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.”
However, in any case where there is even slight evidence linking a Defendant with the commission of the offence charged, the case ought to proceed for the Defendant to explain his own side of the matter. See ADEYEMI VS. THE STATE (1991) 7 SC (PT. 11) 1. PER MOHAMMED BABA IDRIS, J.C.A.
CASE: MEANING OF A PRIMA FACIE CASE

So what then is a prima facie case for which the prosecution must prove? A prima facie case has been held to mean a case in which there is evidence which will suffice to support the allegation made in it and which will stand unless there is evidence to rebut the allegation. See AJIDAGBA & ORS VS. I.G.P. (1958) 3 FSC 5; (1958) SCNLR 60; OKORO VS. THE STATE (1988) 5 NWLR (PT. 94) 255; ADEYEMI VS. THE STATE (1991) 6 NWLR (PT. 195) 1. PER MOHAMMED BABA IDRIS, J.C.A.

CRIMINAL LAW: NATURE OF PROVING CASES OF CONSPIRACY

Indeed, in most cases of conspiracy it is a matter of inference, deduced from certain criminal acts of parties done in pursuance of an apparent criminal purpose between the parties. Essentially, conspiracy is seldom proved by direct evidence but by circumstantial evidence and inferences from proven acts. See FOLORUNSHO ALUFOHAI VS. THE STATE (2014) LPELR – 24215 (SC) and DAVID OMOTOLA & ORS VS. THE STATE (2009) LPELR – 2663 (SC). PER MOHAMMED BABA IDRIS, J.C.A.

CRIMINAL LAW: DEFINITION OF CONSPIRACY

In Section 96 of the Penal Code, conspiracy was defined as:
“96.
(1) When two or more persons agree to do or cause to be done:
(a) An illegal act; or
(b) An act which is not illegal by illegal means, such an agreement is called criminal conspiracy.”
In KAZA VS. STATE (2008) LPELR – 1683 the Supreme Court held as it relates to conspiracy that:
“Although Section 97 is the punishment Section, it is really Section 96 that explicates the import of criminal conspiracy. It is Section 96 of the Penal Code that conceptionalises the import of criminal conspiracy and for ease of reference it provides that: 96(1) When two or more persons agree to do or cause to be done – (a) an illegal act, or (b) an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy. (2) Notwithstanding the provisions of Subsection (1); no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to that agreement in pursuance thereof. The import of the provisions of Section 96 supra has been considered in a long line of cases including Chianugo v. The State (2002) 2 NWLR (pt. 750) 225 at 236 para.A.; Obiakor v. The State (2002) 10 NWLR (pt. 776) 612 at 628; Upahar v. The State (2003) 6 NWLR (pt. 816) 23 at 262 and Idi v. Yau (2001) 10 NWLR (pt. 722) 640 at 651 and 658. These cases in summary establish that to secure the conviction of an accused on a charge of conspiracy it must be proved beyond reasonable doubt that: (1) The agreement to commit an offence – an illegal act is between two or more persons. (2) That the said act apart from the agreement itself must be express in furtherance of the agreement.” PER MOHAMMED BABA IDRIS, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering The Leading Judgment): The Appellant has by her Amended Information dated and filed at the High Court of the Federal Capital Territory on 31st day of January, 2017 arraigned three persons including the Respondent who was made the 2nd Defendant before the said Court on eighteen Count Information as follows:-
“AMENDED INFORMATION
At the Court session Holden at Abuja on the…day of …2017, the High Court of the Federal Capital Territory is informed by the Honourable Attorney General of the Federation pursuant to Sections 104 and 379 of the Administration of Criminal Justice Act, 2015 that you, 1. ADENIYI FRANCIS ADETOKUNBO ADEMOLA 2. OLABOWALE TOLUWATOPE ADEMOLA 3. JOE ODEY AGI are charged with the following offences:
COUNT ONE
STATEMENT OF OFFENCE
Conspiracy to influence the Course of Justice contrary to Sections S. 97 of the Penal Code Act, Cap 532 Laws of the Federal Capital Territory of Nigeria, Vol. 4 2007 and punishable under Section S. 97 of the same law.
PARTICULARS OF OFFENCE
Adeniyi Francis Adetokunbo

Ademola Adult, ‘M’, Olabowale Toluwatope Ademola “F” both of No 32, Samuel Ogbemudia Crescent, Zone E, APO, Abuja and Joe Oder Agi ‘M’ Principal Partner,- Joe Agi & Associates of 1, Volta Street, Minister’s Hill Maitama, Abuja, between 11th and 26th March, 2015 in Abuja within the Jurisdiction of this Honourable Court conspired to influence Adeniyi Francis Ademola in the course of his official functions as a Judge of the Federal High Court with a sum of N30,000,000 and thereby committed an offence contrary to Section 97 of the Penal Code Law.
COUNT TWO
STATEMENT OF OFFENCE
Influencing the Course of Justice contrary to Sections S. 182 of the Penal Code Act, Cap 532 Laws of the Federal Capital Territory of Nigeria, Vol. 4 2007 and Punishable under Section S. 182 of the same law.
PARTICULARS OF OFFENCE
Adeniyi Francis Adetokunbo Ademola Adult, “M” Olabowale Toluwatope Adetnola ‘F” both of No 32, Samuel Ogbemudia Crescent, Zone E, APO, Abuja and Joe Odey Agi “M” Principal Partner of Joe Agi Associates of 1, Volta Street, Minister’s Hill, Maitatna, Abuja, between 11th and 26th March, 2015 in Abuja within the

Jurisdiction of this Honourable Court influenced Adeniyi Francis Ademola in the course of his official functions as a Judge of the Federal High Court with a sum of N30,000,000.00 and thereby committed an offence contrary to Section 97 of the Penal Code Law.
COUNT THREE
STATEMENT OF OFFENCE
Obtaining Gratification, contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 17 (1) (c) of the same Law.
PARTICULARS OF OFFENCE
OLABOWALE TOLUWATOPE ADEMOLA “F”, 59 years of age, of No 32, Samuel Ogbemudia Crescent, Apo Zone E, Abuja, FCT, between 11th and 26th March, 2015 at Abuja, within the jurisdiction of this Honourable Court, corruptly obtained on behalf of Adeniyi Francis Adetokunbo Ademola the sum of Ten Million Naira (NGN10,000.000.00) from Joe Odey Agi practicing under the name of Messrs Joe Agi and Associates, through your bank account number 201/110160/1/1/0 domiciled at Bank PLC as gratification, in the exercise of his official functions as a Judge of the Federal High Court of Nigeria and thereby committed an offence contrary to Section 1 of the Corrupt Practices and Other Related Offences Act, 2000.

COUNT FOUR
STATEMENT OF OFFENCE
Receiving Gratification for any other person, contrary to Section 1 of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 17(1) (C) of the same Law.
PARTICULARS OF OFFENCE
OLABOWALE TOLUWATOPE ADEMOLA “F”, 59 years of age, of No 32, Samuel Ogbemudia Crescent, Apo Zone E, Abuja, FCT, between 11th and 26th March, 2015 at Abuja, within the Jurisdiction of this Honourable Court, corruptly obtained on behalf of Adeniyi Francis Adetokunbo Ademola the sum of Ten Million Naira (NGN10,000.000.00) from Joe Odey Agi practicing under the name of Messrs Joe Agi and Associates, through your bank account number 201/110160/1/1/0 domiciled at Bank PLC as gratification, in the exercise of his official functions as a Judge of the Federal High Court of Nigeria and thereby committed an offence contrary to Section 1 of the Corrupt Practices and Other Related Offences Act, 2000.
COUNT FIVE
STATEMENT OF OFFENCE
Receiving Gratification for any other person, contrary to

Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 17(1) (C) of the same Law.
PARTICULARS OF OFFENCE
OLABOWALE TOLUWATOPE ADEMOLA “F”, 59 years of age, of No 32, Samuel Ogbemudia Crescent, Apo Zone E, Abuja, FCT, between 11th and 26th March, 2015 at Abuja, within the Jurisdiction of this Honourable Court, corruptly obtained on behalf of Adeniyi Francis Adetokunbo Ademola the sum of Ten Naira (NGN10,0000.000.00) from Joe Odey Agi practicing under the name of Messrs Joe Agi and Associates, through your bank account number 201/110160/1/1/0 domiciled at GT Bank PLC as gratification, in the exercise of his official functions as a Judge of the Federal High Court of Nigeria and thereby committed an offence contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000.
COUNT SIX
STATEMENT OF OFFENCE
Bribery of Public Officer contrary to Section 18 (d) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 18 (d) of the same Law.
PARTICULARS OF OFFENCE
JOE ODEY AGI, practicing under the name of Joe Agi & Associates, of No 1, Volta

Street, Minister’s Hill, Maitama, Abuja, between the 11th March, 2015 and 26th March, 2015, in Abuja, within the Jurisdiction of this Honourable Court, offered ADENIYI FRANCIS ADETOWNBO ADEMOLA through Ademola Olabowale Toluwatope’s bank account number 201/110160/1/1/0 domiciled at GT Bank PLC the sum of Ten Million Naira, (NGN10,000,000.00) as gratification in the exercise of his official functions as a Judge of the Federal High Court of Nigeria and thereby committed an offence contrary to Section 18(d) of the Corrupt Practices and Other Related Offences Act 2000.
COUNT SEVEN
STATEMENT OF OFFENCE
Bribery of Public Officer contrary to Section 18(d) of the Corrupt Practices and Other Related Offences Act 2000 and punishable under Section 18(d) of the same Law.
PARTICULARS OF OFFENCE
JOE ODEY AGI practicing under the name of Joe Odey Agi & Associates, of No 1, Volta Street, Minister’s Hill, Maitama, Abuja, between the 11th March, 2015 and 26th March, 2015, in Abuja, within the jurisdiction of this Honourable Court, offered ADENIYI FRANCIS ADETOKUNBO ADEMOLA through Ademola Olabowale Toluwatope’s bank account number 201/110160/1/1/0

domiciled at GT Bank PLC the sum of Ten Million Naira, (NGN10,000,000.00) as gratification in the exercise of his official functions as a Judge of the Federal High Court of Nigeria and thereby committed an offence contrary to Section 18(d) of the Corrupt Practices and Other Related Offences Act 2000.
COUNT EIGHT
STATEMENT OF OFFENCE
Bribery of Public Officer contrary to Section 18(d) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 18(d) of the same Law.
PARTICULARS OF OFFENCE
JOE ODEY AGI, practicing under the name of Joe Agi & Associates, of No 1, Volta street, Minister’s Hill, Maitama, Abuja, between the 11th March, 2015 and 26th March 2015, in Abuja, within the Jurisdiction of this Honourable Court, offered ADENIYI FRANCIS ADETOKUNBO ADEMOLA through Ademola Olabowale Toluwatope’s bank account number 201/110160/1/1/0 domiciled at GT Bank PLC the sum of Ten Million Naira. (NGN10,000,000.00) as gratification in the exercise of his official functions as a Judge of the Federal High Court of Nigeria and thereby committed an offence contrary to Section 16(d) of the Corrupt Practices and Other Related Offences Act 2000.

COUNT NINE
STATEMENT OF OFFENCE
Corruptly giving of gift contrary to Section 17(1) (b) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 17(1) (c) of the same Law.
PARTICULARS OF OFFENCE
JOE ODEY AGI practicing under the name of Joe Agi & Associates of No 1, Volta Street, Minister’s Hill, Maitama, Abuja, on or about the 5th of January, 2015, in Abuja, within the Jurisdiction of this Honourable Court, corruptly gave ADENIYI FRANCIS ADETOKUNBO ADEMOLA a gift of a BMW Saloon 320i valued at Eight Million Five Hundred Thousand Naira (N8,500,000) through his son ADEMIDE ADEMOLA, as an inducement in the exercise of his official functions as a Judge of the Federal High Court of Nigeria and thereby committed an offence contrary to Section 17(1)(b) of the Corrupt Practices and Other Related Offences Act, 2000.
COUNT TEN
STATEMENT OF OFFENCE
Holding Gratification, contrary to Section 24 of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under the same section of the law.

PARTICULARS OF OFFENCE
Adeniyi Francis Adetokunbo Ademola Adult, “M”, 63 years of No 32, Samuel Ogbemudia Crescent, Zone E, APO, Abuja on or about the 7th day of October, 2016 at – Abuja, within the Jurisdiction of this Honourable Court, in your capacity as a public servant held in your possession the sum of Fifty Four Million (N54,000,000) Naira: One Hundred and Twenty One Thousand, Two Hundred and Seventy Nine Dollars ($121,279); Four Thousand, Four Hundred Euros (€4,400); Eighty Pounds (£80); and One Thousand and Ten Rupees (R1,010), being gratification received in the exercise of your official functions as a Judge of the Federal High Court of Nigeria and thereby committed an offence contrary to Section 24 of the Corrupt Practices and Other Related Offences Act, 2000.
COUNT ELEVEN
STATEMENT OF OFFENCE
Dealing with property subject matter of an offence contrary to Section 24 of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under the same Law.
PARTICULARS OF OFFENCE
Adeniyi Francis Adetokunbo Ademola male, 63 years of age, of No. 32, Samuel Ogbemudia Crescent, Apo Zone E, APO, Abuja FCT, on 24th day of February, 2014

at Abuja, within the Jurisdiction of this Honourable Court, in your capacity as a Public Servant transferred the sum of Eighty Five Million Naira (N85,000, 000) from account number 206/174191/1/2/0 domiciled at Guarantee Trust Bank to Franco Don Porker which sum forms the proceeds of an unlawful act and thereby committed an offence contrary to Section 24 of the Corrupt Practices and Other Related Offences Act, 2000.
COUNT TWELVE
STATEMENT OF OFFENCE
Dealing with property subject matter of an offence contrary to Section 24 of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under the same Law.
PARTICULARS OF OFFENCE
ADENIYI FRANCIS ADETOWNBO ADEMOLA, adult male, 63 years of age, of No 32, Samuel Ogbemudia Crescent, Apo Zone E, Abuja, FCT, on 24th day of February, 2014, at Abuja, within the Jurisdiction of this Honourable Court, in your capacity as a Public Servant transferred the sum of Ninety Million Naira (N90,000,000) from account number 206/174191/1/2/0 domiciled at Guarantee Trust Bank to Franco Dan Parker which sum forms the proceeds of an unlawful act and thereby committed an offence contrary to

Section 24 of the Corrupt Practices and Other Related Offences Act 2000.
COUNT THIRTEEN
STATEMENT OF OFFENCE
Attempt to obtain gratification by a public servant contrary to Section 115 (b) of the Penal Code Act, Cap 532 Laws of The Federal Capital Territory of Nigeria, Vol. 4 2007, and punishable under Section 115(ii) of the same Law.
PARTICULARS OF OFFENCE
ADENIYI FRANCIS ADETOKUNBO ADEMOLA, adult male, 63 years of age, of No 32, Samuel Ogbemudia Crescent, Apo Zone E, Abuja, FCT, on or about the 21st day of February, 2014, at Abuja, within the Jurisdiction of this Honourable Court, in your capacity as Public Servant transferred the sum of Ninety Million Naira (N90, 000,000) from account number 206/174191/1/2/0 domiciled at Guarantee Trust Bank to Franco Dan Parker which sum forms the proceeds of an unlawful act thereby committed an offence contrary to Section 24 of the Corrupt Practices and Other Related Offence Act 2000.
COUNT FOURTEEN
STATEMENT OF OFFENCE
Obtaining Gratification, contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 17(1)(c) of

the same law.
PARTICULARS OF OFFENCE
ADENIYI FRANCIS ADETOWNBO ADEMOLA, adult male, 63 years of age, of No. 32, Samuel Ogbemudia Crescent, Apo Zone E, Abuja, FCT, on the 5th day of January, 2015, at Abuja, within the Jurisdiction of this Honourable Court, in your capacity as a Public Servant, corruptly received from JOY ODEY AGI, practicing under the name of Joe Agi & Associates, a BMW Saloon 320i valued at Eight Million Five Hundred Thousand Naira (N8,500,000) through your son ADEMZDE ADEMOLA, as gratification in the exercise of your official functions as a Judge of the Federal High Court of Nigeria and thereby Committed an offence Contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000.
COUNT FIFTEEN
STATEMENT OF OFFENCE
Illegal Possession of Firearms contrary to Section 3 of the Robbery and Firearms (Special Provisions Act), 2004 and Punishable under Section 3 of the same Act.
PARTCULARS OF OFFENCE
ADENIYI FUNCIS ADETOKUNBO ADEMOLA, adult male, 63 years of age, of No 32, Samuel Ogbemudia Crescent, Apo Zone E, Abuja FCT on or about the 7th day of October, 2016, at Abuja within

the Jurisdiction of this Honourable Court had in your possession 1 (one) Pump Action rifle with serial number AVAR MAGNUM 6284, without a valid licence, and thereby committed an offence contrary to Section 3 of the Robbery and Firearms (Special Provisions Act), 2004.
COUNT SIXTEEN
STATEMENT OF OFFENCE
Illegal possession of Firearms contrary to Section 3 of the Robbery and Firearms (Special Provisions Act), 2004 and punishable under Section 3 of the same Act.
PARTICULARS OF OFFENCE
ADENIYI FRANCIS ADETOWNBO ADEMOLA, adult male, 63 years of age, of No 32, Samuel Ogbemudia Crescent, Apo Zone E, Abuja FCT on or about the 7th day of October, 2016, at Abuja within the Jurisdiction of this Honourable Court had in your possession 1 (one) Pump Action rifle with serial number AVAR MAGNUM 6284, without a valid licence, and thereby committed an offence contrary to Section 3 of the Robbery and Firearms (Special Provisions Act), 2004.
COUNT SEVENTEEN
STATEMENT OF OFFENCE
Illegal possession of Ammunition contrary to Section 8 of the Firearms – Act, Cap F28 LFN 2004 and punishable under Section 27 (1) (b) (ii) of same Act.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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PARTICULARS OF OFFENCE
ADENIYI FRANCIS ADETOKUNBO ADEMOLA, adult male, 63 years of age, of No 32, Samuel Ogbemudia Crescent, Apo Zone E, Abuja on or about the 7th day of October, 2016 at Abuja within the Jurisdiction of this Honourable Court had in your possession thirty five (35) rounds of live ammunition (cartridges) without a valid licence and thereby committed an offence contrary to Section 8 of the Firearms Act. Cap F28 LFN 2004.
COUNT EIGHTEEN
STATEMENT OF OFFENCE
False information with intent to mislead a Public Servant Contrary to Section 140 of the Penal Code Act Cap 532 Laws of the Federal Capital Territory Vol. 4. 2007 and punishable under the same law.
PARTICULARS OF OFFENCE
Adeniyi Francis Adetokunbo Ademola Adult, “M”, of No 32, Samuel Ogbemudia Crescent, Zone E, Apo, Abuja on or about the 10th day of October, 2016 at Abuja, within the Jurisdiction of this Honourable Court, gave false information to Babatunde Adepoju (an operative of the Department of State Services in your written statement) that one pump action Riffle and Cartridges belonged to Hon. Justice A.R Mohammed, a serving Judge of the

Federal High Court, Abuja, which false information was intended to mislead the DSS Operative in the discharge of his duties and thereby committed an offence contrary to Section 140 of the Penal Code Act Cap 532 Laws of the Federal Capitol Territory Vol. 4. 2007.”

To sustain the above charges against the Defendants, the Prosecution called 19 (nineteen) witnesses after the Defendants have pleaded not guilty to the Counts.

At the end of the Prosecution’s case each of the Defendants including the Respondent opted to make a no case submission pursuant to Sections 302 and 303 of the Administration of the Criminal Justice Act 2015.

On 5th April, 2017 the learned trial Judge gave considered Ruling and came to the conclusion that the Prosecution failed to make out a prima facie case against each of the three Defendants which would warrant their being called upon to answer or defend the information against them.

On page 899 of the record which is page 63 of his judgment the Learned Trial Judge found thus:
“Before my ink dries, let me quickly mention that, this Court did give very serious thoughts to the circumstances of this case. There is

no gainsaying that the case is built on high level suspicions and speculation fuelled by the enthusiasm of the very important Nigeria’s current fight against corruption. Whilst such level of suspicion or speculation can in the eyes of pedestrians and uninformed ordinary persons in market places suffice for the Defendants to be condemned so as to give fillip to the fight against corruption, in the eyes of the law however, the suspicions do not measure up to the standard required for the Defendants to be condemned to further trial.
To the extent that in our legal jurisprudence (which is still adversarial) the burden of proving any person guilty of an offence remains the duty of the Prosecution or the complainant, it will be a sad day if this extant state of the law is kicked aside by the Court and the Defendants made to prove their innocence by further trial in order to achieve the approval and applause of uninformed minds. This Court will be failing in its duty if it panders to such sentiment. This brings to the fore the all important need for our security/law enforcement and prosecutional agencies to patiently conduct proper, water tight and unassailable

investigations before suspects are arraigned in Court. As cumbersome or onerous as this could be, the nation will be better for it in its current fight against corruption. I say no more and hope the message here will be taken in good faith.
All said, the Court having found the Prosecution did not make out a prima facie case in respect of all Counts of the Charge; it stands to reason there is nothing on which the charge can stand. There is therefore no justifiable basis to call upon the Defendants to put up their defences to the Counts of the charge. The sole issue raised above is accordingly resolved against the Prosecution in favour of the Defendants. This information with all the Counts are in the circumstances dismissed and all the Defendants discharged.
The Assistant Chief Registrar of this Court is directed to furnish the parties with certified true copies of this Ruling within 7 days from today.”

The Appellant was aggrieved and has by her Amended Notice of Appeal dated 15th December, 2017 and filed on 20th December, 2017 but deemed filed on 11th November, 2020, appealed to this Court against the Respondent on fifteen (15) grounds of

appeal which without their particulars are as follows:-
“2. PART OF DECISION COMPLAINED OF:
The whole
3. GROUNDS OF APPEAL
GROUND ONE
The learned trial Judge erred in taw when he proceeded to evaluate the evidence and ascribe probative value to the evidence of the prosecution witnesses in his ruling on the no case submission when he ought to have only considered at that stage, whether a prima facie case has been made out by the prosecution against the Defendants.
GROUND TWO
The Learned trial Judge erred in Law when he held that the offence of giving and receiving gratification was not made out by the Prosecution against the Defendants despite the over-whelming oral and documentary evidence of the prosecution witnesses led before the Court in this regard.
GROUND THREE
The trial Judge erred in law when he held that Sections 53 and 60 of the Corrupt Practices and Other Related Offences Act 2000 do not apply in this case.
GROUND FOUR
The Learned trial Judge erred in law when he held that there is no basis for the Court to make any inference or declare that there is circumstantial evidence in

proof of the allegation of criminal conspiracy as contained in count 1 of the Information.
GROUND FIVE
The learned trial Judge erred in law when he held that it was evident that Section 97 of the Penal Code on which count 1 of the charge was predicated merely provides for punishment for the offence of conspiracy. It has not made provision for the substantive offence of conspiracy.
GROUND SIX
The trial Court erred in law when it held that Defendants have been charged for an offence not recognized or provided by section of the law under which they are charged. In the circumstances, Section 36(8) of the Constitution is applicable to render the charge incompetent.
GROUND SEVEN
The Trial Court erred in law when it considered and ruled on the objection despite clear the provisions of Sections 220 & 222 of the Administration of Criminal Justice Act, 2015.
GROUND EIGHT
The learned trial Judge misdirected himself on the facts when it held that there is no scintilla of evidence by the Prosecution witnesses showing when, where and how the Defendants mind met in agreement to commit the illegal act of influencing the 1st

Defendant in the course of his functions as a Judge of the Federal High Court with N30,000,000.00
GROUND NINE
The trial Judge erred in law when he held that any money paid into the Bank Account of 2nd Defendant cannot without evidence clearly showing it was paid to her on behalf or for the benefit of 1st Defendant be treated as money paid to the 1st Defendant to influence him in his official function.
GROUND TEN
The trial Judge erred in law when he dismissed count 2 on ground that the Prosecution did not through the evidence of any of its witnesses prove the money was not a gift made to the duo during their daughter’s wedding or that it was intended to influence the 1st Defendant in the performance of his official duties.
GROUND ELEVEN
The trial Judge erred in law when he held that the prosecution did not place before it prima facie evidence in respect of Counts 3, 4 and 5 with which 2nd Defendant/Respondent was charged because the evidence of PW8, PW9 and PW16 did not prove or reveal same.
GROUND TWELVE
The trial Judge erred in law when he held that PW16’s evidence against the prosecution’s interest and therefore ought to

have been treated as a hostile witness.
GROUND THIRTEEN
The trial Court misdirected itself on the facts when it held that the prosecution having not proved the monies were paid as gratification to the 1st Defendant and he accepted, the presumption of corruptly receiving the monies as provided by Section 53 cannot arise.
GROUND FOURTEEN
The trial Court erred in law when it held that Sections 53 and 60 of the Corrupt Practices and other related Offences Act, 2000 are in conflict with Section 36 (5) of the 1999 Constitution (as amended) and therefore void to the extent of the inconsistency.
GROUND FIFTEEN
The trial Court erred in law when it failed to accord the Prosecution fair hearing in the trial and determination of this case thereby occasioning a miscarriage of justice.
4. RELIEFS SOUGHT FROIVI THE COURT OF APPEAL:
AN ORDER ALLOWING THE APPEAL AND OVERRULING THE DECISION OF THE LOWER COURT AND REMITTING THE CASE BACK TO THE LOWER COURT FOR THE RESPONDENT TO ENTER INTO HER DEFENCE BEFORE ANOTHER JUDGE OF THE FCT HIGH COURT. ”

The Appellant’s Brief of Argument was filed on 20th December, 2017 and was deemed properly filed on 11th November, 2020, while the Respondent Brief dated 2nd October, 2020 and deemed filed on 11th November, 2020. A Reply Brief was filed on 27th October, 2020 and deemed properly filed on 11th November, 2020.

The learned Counsel to the Appellant SEGUN JEGEDE, ESQ distilled four issues for the determination as follows:-
1. Whether the trial Court was right in upholding the No Case Submission of the Respondent in the circumstances of this case (see grounds 1, 2, 4, 7, 8, 9, 10, 11, 12 and 13 of the Amended Notice and Grounds of Appeal).
2. Whether Sections 53 and 60 of the Corrupt Practices and Other Related Offences Act, 2000 do not apply to the facts of this case and are void for being in conflict with Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (grounds 3 and 14 of the Amended Notice and Grounds of Appeal).
3. Whether the charge of conspiracy predicated on Section 97 of the Penal Code is incompetent (grounds 5 and 6 of the Amended Notice and Grounds of Appeal).
4. Whether Appellants were granted fair hearing by the trial Court in the hearing and determination of this case (ground 15 of the Amended Notice and Grounds of Appeal).

The Respondent adopted the four issues formulated for the determination of the appeal.
I must state that the Respondent filed a Notice of Preliminary Objection contending that this appeal ought to be dismissed in limine same having become moot, hypothetical because the merit of the appeal has been determined in a sister appeal in the Judgment of this Court in CA/A/371C/2017 delivered on 17th December, 2018:FEDERAL REPUBLIC OF NIGIERA VS JOE ODEY AGI.

I have read carefully the argument in support of the said Preliminary Objection and the submissions of the Appellant to the effect that the Respondent herein was not included in Counts 7, 8 and 9 of the information which are the Counts in which the Respondent herein was not involved or charged as the Respondent in the said sister appeal.

The Appellant is entitled to press separate appeals against each of the three Defendants’ charged in the information. It is the Appellants Constitutional Right. Whether the appeal succeeds or not is another kettle of fish. The Preliminary Objection is a stupendous waste of time. I hereby dismiss it as lacking merit.

NOW TO THE OF THE APPEAL
The appeal will be determined on the four issues formulated by the Appellant.
The Appellant argued issue 1, 2 and 3 together. He laid out all the essential aspect of no case submission and concluded that the learned trial Judge misapprehended the facts and evidence given by the Appellant against the Respondent. That notwithstanding, that the trial Court found on page 863 of the record that it has strong temptation to draw inferences that 3rd Defendant had case to answer for reason that the sum of was paid in trances at different times to 1st Defendant by 3rd Defendants’ to influence the 1st Defendant.

The learned Counsel to the Appellant believes this to be a tacit concession that Prosecution proved its case to warrant the Defendants being called upon to defend the charge against them. That the pieces of evidence led linked the Defendants with the commission of the offences for which they were charged. He relied on;
1. DABOH V. STATE (1977) 5 SC 197 AT 315; and
2. BLAISE V. FRN (2017) 6 NWLR (PT. 1560) 90 AT 128.

That at no case submission stage the trial Judge must be brief in its Ruling. He relied on OKAFOR V. STATE (2016) 4 NWLR (PART 1502) 24 AT 246 – 268. He then went into extensive review of the counts, and the count dealing with conspiracy. That the Count is competent and that Respondent cannot contend that she could not be charged under S. 97. He stated the elements of the offence of conspiracy and relied on the evidence of PW8, PW9, PW15 and PW16, Exhibits K, L, M, N, O pages 771 – 775, 722 – 733 of the record as establishing the offence of conspiracy in that, there was evidence that PW16 showed that at about the time a particular case was assigned to 1st Defendant and various sum in tranches were paid into 1st Defendant’s account and that 3rd Defendant gave 1st Defendant’s son car gift valued N8,000,000: and large pecuniary verdict resulted therefrom.

According to Appellant’s learned Counsel from the gamut of evidence above, it is clear that money passed from 3rd Defendant under questionable circumstances to the Respondent who is the wife of 1st Defendant at the instruction of 1st Defendant and that such monies were used for 1st and 2nd Defendants’ daughters. He relied on the case of ADEKOYA VS STATE (2017) 7 NWLR (PT. 1565) 343 AT 360.

That the cross examination of Defendants Counsel did not destroy Appellant’s evidence against the Respondent.
On Count 2, learned Appellant’s Counsel stated that Respondent was charged along with the other Defendants with influencing the course of justice contrary to Section 182 of Penal Code Act Cap 532 Laws of Federal Capital Territory. He relied on page 142 of the record and that the ingredients of the offence were established vide the evidence of PW8, PW9, PW15 and PW16 coupled with Exhibits K, L, M, N, O, P and that the sum of N30 Million was paid into the Respondent’s Accounts. That Exhibits YY and XX of 3rd Respondent’s Statements shed light on the tacit agreement.

That this Court needs to refuse the no case submission and call on Respondent and her Co-Defendants to defend the offences charged. He relied on Section 53(1) of the Corrupt Practices and Other Related Offences Act 2000. That the lower Court was wrong in embarking on what he called the marathon evaluation of evidence and ascription of probative value thereto.

That the lower Court was wrong in holding that PW16 gave evidence against the interest of the Prosecution. He relied on the case of FRN V. IBORI (2014) ALL FWLR (PT. 735) 272 AT 315.

He informed the Court that the Respondent was charged alone on Counts 3, 4 and 5 for receiving the respective tranches of N10 Million corruptly from 3rd Defendant on behalf of 1st Defendant contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act 2000 punishable under same law. He relied on page 142 – 144 of the record. That the Prosecution made out a prima facie case against the Respondent requiring her to enter upon her defence.

On validity of Section 53 and 60 of the Corrupt Practices and Other Related Offences Act, 2000, he submitted that there is presumption under those sections of the law that the money was given for corrupt purpose. That the two sections of the law are not inconsistent with Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

On issue 4 as to whether the Prosecution was denied fair hearing, the Appellant’s learned Counsel stated that the lower Court was not disposed to giving the Prosecution fair hearing from onset.

That the trial Judge was just entertaining belated objections to charge and prosecutions case contrary to Sections 221 & 396(2) of Administration of Criminal Justice Act and that lower Court was always disposed to Prosecution. That a clear case of denial is manifest on the face of Ruling on the no case submission.

He therefore urged the Court to set aside the Ruling on no case submission. He relied on the cases of EGHAREVBA V. FRN (SUPRA) and EZENWAJI V. UNN (2006) 3 NWLR (PT. 967) 325 AT 339.

He concluded by urging the Court to resolve the four issues in Appellant’s favour, and set aside the Ruling and Orders of the lower Court and to remit the case back to FCT High Court for hearing.

The learned Counsel to the Respondent ADEOLA ADEDIPE, ESQ argued the contrary on all the Appellant’s submissions.
The import and connotation of a no case has been enunciated in numerous cases, suffice to refer to some of them.
See:-
1. GODWIN DABOH & ANOR V. THE STATE (1977) 5 SC 187 AT 209 – 211 where SIR UDO UDOMA, JSC had this to say:-
“Before however, embarking upon such an exercise, it is perhaps expedient here to observe that it is well known rule of

Criminal Practice, that in Criminal trial at the close of the case for the prosecution, a submission of no Prima Facie Case to answer made on behalf of an accused person postulates one or two things or both of them at once.
Firstly, such a submission postulates that there has been throughout the trial no legally admissible evidence at all against the accused person on behalf of whom the submission has been made linking him in any way with the commission of the offence with which he has been charged, which would necessitate his being called upon for his defence.
Secondly, as has been so eloquently submitted by Chief Awolowo, 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 concerned and in the case of trial by jury, that the case ought therefore to be withdrawn from the jury and ought not to go, for a verdict. On the other hand, it is well settled that in the case of a trial by jury, no less than in a trial without a jury, however slight the evidence linking an accused person with

the commission of the offence charged might be, the case ought to be allowed to go to the jury. Therefore, when a submission of no prima facie case is made on behalf of an accused person, the trial Court is not thereby called upon at that stage to express 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 is based on discredited evidence, such discredit must be apparent on the face of the record. If such is not the case, then the submission is bound to fail.”
2. COP VS. MR. EMMANUEL AMUTA (2017) 4 NWLR (PART 1556) 379 AT 391 C – H TO AKAAHS, JSC who said:-
“It is now settled by a long line of Judicial authorities since Ibeziako v. C.O.P (1963) 1 All NLR 61, (1963) 1 SCNLR 99 that a submission of no case to answer may be properly made and upheld in the following circumstances:
(i) When there has been no evidence to prove an essential element in the alleged offence either directly, circumstantially or inferentially:
(ii) When the evidence adduced by the prosecution has been

so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal can safely convict on it.
See: Okoro v. State (1988) 5 NWLR (Pt.94) 255; Adeyemi v. The State (1991) 6 NWLR (Pt. (95) 1; Abogede v. The State (1996) 5 NWLR (Pt. 448) 270 and Suberu v. The State (2010) 1 NWLR (Pt. (176) 494.
In the ruling by the Chief Magistrate on the no case submission, the Court found that a case has been made out against the accused persons in counts 1-3 of the charge and that the prosecution has failed to make out a case against the accused persons in count 4 of the charge. The High Court sitting on appeal limited its finding of a prima facie case being made out against the accused in counts 2 and 3. I venture to state that there has been a shift in the rigid adherence to calling on an accused to enter into his defence once a prima facie case has been established against the accused as was done in Ikomi v. State (1986) 3 NWLR (Pt. 28) 340.
In Abacha v. State (2002) 11 NWLR (Pt.779) 437 Belgore, JSC (as he then was) in the majority Judgment (with EJiwunmi, JSC, dissenting) disagreed with the opinion by the Court of

Appeal that the appellant had taken a premature step of challenging the indictment when he could await the time for no case submission to move that he had no case to answer and that such challenge to quash an information should not be encouraged. He said at page 485, paras. A-C:
“With the greatest respect, in a democratic setting, as we now are, with no legislative ouster of Court’s Jurisdiction, all perceived abuses should be tested if confidence is to be preserved for Courts as final arbiter in people’s rights. The Courts have inherent power to prevent abuse of their process by any of the parties, whether plaintiff or defendant, prosecution or defence, so that as long as democratic process exists nobody will have his rights curtailed.
All power to settle issues between parties is vested in Courts and Court must be vigilant that genuine issues and controversies are settled so that no accused person will be oppressed either directly or indirectly through act of prosecution; if not we shall have persecution in place of prosecution.”
With this admonition in mind it becomes imperative to examine the evidence adduced in this case in

order to determine if actually the prosecution made out a prima facie case requiring the accused (now respondent) to enter into their defence.”
3. FRN VS. THOMAS ISEGHOHI (2019) 12 NWLR (PART 1685) 154 AT 179 G – H per KEKERE – EKUN, JSC who said:
“A cardinal rule in criminal law is that in order to secure conviction, all the ingredients of the offence charged must be established beyond reasonable doubt. Failure to establish even one of the elements of the offence means the charge is not made out and the accused person is entitled to an acquittal.
The law is that a no case submission will be upheld –
(a) when there has been no evidence to prove an essential element of the offence, and/or
(b) when the evidence adduced by the prosecution has been so discredited as a result of cross examination that no reasonable tribunal could safely convict on it.
See: Ibeziako v. C.O.P. (1963) 1 SCNLR 99: Emedo v. The State (2002) 15 NWLR (Pt. 789) 196: Ugwu v. The State (2013) 14 NWLR (Pt.1374) 257: Ekwunugo v. F.R.N. (2008) 18 NWLR (Pt. 1111) 630.”

The principle guiding a no case submission have now been clearly enacted in Sections 302 and 303 of the Administration of Criminal Justice Act 2015 which all provides:-
“302. The Court may on its own motion or on application by the defendant, after hearing the evidence for the prosecution, where it considers that the evidence against the defendant or any of several defendants is not sufficient to justify the continuation of the trial, record a finding not guilty, in respect of the defendant without calling on-him or them to enter his or their defence and the defendant: shall accordingly be discharged and the Court shall then call on the remaining defendant, if any, to enter his defence.
“303. (1) Where the defendant or his legal practitioner makes a no case submission in accordance with the provisions of this Act, the Court shall call on the prosecutor to reply.
(2) The defendant or his legal practitioner has the right to reply to any new point of law raised by the prosecutor, after which, the Court shall give its ruling.
(3) In considering the application of the defendant under Section 303, the Court shall, in the exercise of its discretion, have regard to whether:
(a) an essential element of the

offence has been proved.
(b) there is evidence linking the defendant with the commission of the offence with which he is charged;
(c) the evidence so far led is such that no reasonable Court or Tribunal would convict on it; and
(d) any other ground an which the Court may find that a prima facie case has not been made out against the defendant for him to be called upon to answer.”

The cardinal and germane question is, whether it can be said from the totality of the pieces oral and documentary evidence given and proffered by the prosecution witnesses that a prima facie case has been made against the Respondent to warrant her been called upon to enter upon her defence to the offences for which she was charged.

Now, on the charge of conspiracy the Respondent was charged along with 1st and 3rd Defendant for conspiracy to influence the course of judicial duties of 1st Defendant her husband, who was then a Judge of the Federal High Court in the sum of N30,000,000. Conspiracy is defined in Section 96 of the Penal Code as follows:
“96. (1) When two or more persons agree to do or cause to be done:-
(a) An illegal act, or
(b) An act which is

not illegal by illegal means, such an agreement is called a criminal conspiracy.
(2) Notwithstanding the provisions of Subsection (1), no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement, in pursuance thereof.
It is most of the times not possible to have direct evidence of conspiracy by criminals who engage in criminal enterprise to commit a particular offence. The Courts have over the years evolved the circumstances from which inferences could be drawn by the trial Court to unearth criminal conspiracy. The evidence of surrounding circumstances from which a Court will infer conspiracy must be plausible and irresistible, I call in aid:
1. IBRAHIM LADEYEMI V. THE STATE (2018) 5 NWLR (PART 1613) 482 AT 491 D-H per PETER-ODILI, JSC who said:-
“In the matter of the, offence of criminal conspiracy leveled against the appellant, it reiterated that to sustain the charge which is pursuant to Section 6(b) of the Robbery and Firearms Act, Cap. R 11, Laws of the Federation of Nigeria, 2004, the prosecution has the

bounden duty to establish the following essential elements which are thus:-
(i) An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal by illegal means.
(ii) Where the agreement is other than an agreement to commit an offence? That some acts besides the agreement was done by one or more of the parties in furtherance of the argument.
(iii) Specifically that each of the accused individually participated in the conspiracy. See State v. Salawu (2010) All FWLR (Pt. 614); 1 at pg. 29; (2011) 18 NWLR (Pt. 1279) 580; Adekunle v. The State (1989) 12 SCNJ 184; 19895 NWLR (Pt. 123) 505; Nwosu v. The State (2004) All. FWLR (Pt. 218) 916; (2004) 15 NWLR (Pt. 897) 466 at 486.
Of note, in the duty to establish the offence of conspiracy is the fact that the prosecution is not expected to prove that the conspirators met before carrying out their activities which are seen as criminal rather, the offence of conspiracy is sustained by the prosecution leading evidence from which the Court can discern or infer the criminal acts of the accused person done in pursuance of the apparent criminal

purpose common between or among the conspirators. Again, to be said is that to establish conspiracy all that is expected, of the prosecution is to prove the inchoate or rudimentary nature of the offence and the inference from which the meeting of the minds of the accused persons nor is it necessary to establish that the conspirators had been in any direct communication one with tile other or others as the case may be. There is no hard and fast rule as to how to infer conspiracy as even the mere evidence of complicity is sufficient. I place reliance on Ikwunne v. The State (2000) 5 NWLR (Pt 658) 550 at 560-561; Osondu v. F.R.N. (2000) 12 NWLR (Pt. 662) 463 at 501 -502.”
IFEANYICHUKWU AKWUOBI VS THE STATE (2017) 2 NWLR (PART 1550) 421 444 D – H TO 455 A — D.

PW15 who recorded the evidence of 2nd Defendant in whose account alleged bribe of N30 million was paid said he was not the investigating officer in the matter and PW16 stated he was not the person that took the statement of 2nd Defendant PW16 also gave evidence that it was true that MESSRS KEN HUBERT and MR BASSEY who were the friends of 1st Defendant sent $150,000 (Dollars) to 3rd

Defendant to give support for the wedding of 1st Defendant’s daughter. It was the money that was changed or converted to N37 million out of which N30 million was transferred to 2nd Defendant’s Account. PW16 also admitted that their investigations did not reveal that KEN HUBERT and BASSEY have any case before 1st Defendant pertaining to any of their interest or in which their companies were parties. All the cases suspected to have been influenced by the Defendants or in which PW16 believed there were deflection of course of justice were all proved or shown under cross examination of PW16 to be all false.

I am of the solemn view that no prima facie case was made out against the Respondent by the Appellant on charge of conspiracy.

A close examination of Counts 2, 3, 4, and 5 against the Respondent shows that no particular cases or suits in respect of which gratification was allegedly given to deflect the course of justice are contained in any particulars of the said Counts against the Respondent. In other words, the civil or criminal cases/criminal charges in which allegations were made against the Respondent for trying to deflect the course of justice are not disclosed on or in any of the said Counts 1, 2, 3, 4 and 5 in the information against the Respondent.

There is no jot of evidence or any scintilla of it to establish any case of conspiracy between the 1st and 3rd Defendants and the 2nd Defendant now Respondent in this criminal case/appeal.

On whether the pieces of evidence led prima facie show commission of any of the offences the Respondent was charged by the Appellant it is necessary to examine evidence of the witness who testified concerning the Respondent.

PW8 is TESLIM A. AJUWON. His evidence is on pages 722 – 727 of Vol. 11 of the record. He testified that his Bank (Zenith Bank Plc) received a request from the Department of State Services on 6/12/2016 to furnish it with Statement of Account mandate and certificate of identification in respect of JOE AGI & ASSOCIATES. The Bank responded to the request on 7th December, 2016 by providing the Department of State Service the said documents. He tendered the certificate of identification dated 13/12/16 made by Zenith Bank Plc as Exhibit “K” while he tendered photocopy of Mandate bearing the name of Agi dated 12/2/15 as Exhibit

“M”. He also tendered photocopy of 6 page statement of account of Joe Agi & Associates for period 15-2-2008 to 31 – 10 – 2016 as Exhibit “M”. He told the lower Court that from Exhibit “M”, the Statement of Account there was a transaction of (Eight Million Naira) on 5/1/2015 vide a cheque transferring the said amount from Joe Agi and Associates to Coscharris Motors Ltd. That on 11/3/2015 there was a transfer of N10 million from the account, in favour of ADEMOLA OLABOWALE TOLULOPE in Guaranty Trust Bank from Joe Agi & Associates. That on 16/3/2015 there was another credit transfer of N10 million in favour of ADEMOLA OLABOWALE TOLULOPE in Guaranty Trust Bank from Joe Agi & Associates. That on 26th March, 2015, there was another credit of N10 Million in favour of ADEMOLA OLABOWALE TOLULOPE in Guaranty Trust Bank from Joe Agi & Associates. That the transferee branch is not indicated in the Statement of Account. That the Account is a Sole Proprietorship Account. There is only one signatory to it which PW8 said is JOE AGI, SAN. That Exhibit “L” is the Mandate for Joe Agi & Associates. That was under Examination-in-Chief.

Under cross-examination by Dr. Ikpeazu, SAN for 1st Defendant PW8 said the Account Joe Agi and Associate was opened in Calabar. He was shown Exhibit “A” and he confirmed that the sum of N8 Million was transferred to the Account by Coscharris Motors Ltd, Kilometre 32 Lekki Epe Express Way Ibeju, Lekki, Lagos. That particulars of transfer are “Zenith International Bank, 5th January, 2015 deposit payment for BMW 320”.

Cross examined by Chief Clarke, SAN for 2nd Defendant PW8 stated that different customers have different reasons for transfer.

Under Cross Examination by MR NJIKONYE, learned Counsel to the 3rd Defendant, PW8 stated that from Exhibit “M” shown to him, there is no transfer of the sum of N30 million from Joe Agi & Associates to Adeniyi Francis Ademola. He (PW8) said he could not see any transfer of N30,000,000.00 from Joe Agi & Associates to OLABOWALE ADEMOLA in Exhibit “M”. That he has read the transaction of 5/1/2015 in Exhibit in respect of N8 million. PW8 did not know the purpose of the transfer therein. He did not also know the purpose of transfer of 11/3/15 and that of 26/3/15 in Exhibit “M” with regard to transfer of N10 million. He also said:-

“I have read Exhibits K, L and M. They are genuine documents of bank. I do not see any commission of a crime on the face of the documents. I have seen the three Defendants in Court. I do not know of any commission of crime by any of them.”

PW9 is one SUKY AMBROSE, a staff of Guaranty Trust Bank Plc and an Internal Control Officer of the said bank.
PW9 stated that in December, 2016, his Bank received a letter from D.S.S. requesting for some information on some customers of his Bank including OLUBOWALE TOLUWATOPE ADEMOLA. He produced Certificate of Identification and dispatched to DSS. He also produced Statement of Account and forwarded to DSS along with Statement of Account. He tendered original forwarding letter dated 6/12/2016 from GT Bank as Exhibit “N”. He tendered Original Certificate of Identification by him as Exhibit “O”. He tendered a 13 page document with caption “Customer Information issued by GT Bank on 21/4/15 as Exhibit P. He also tendered photocopy of mandated GT Bank Statement of Account Holder starting from 27/2/15 to 7/4/15 as EXHIBIT “Q” which P W9 said is the Statement of Account of MRS ADEMOLA

OLABOWALE TOLUWATOPE. That three credit entries of N10 million each appear on 11/3/15, 16/3/15 and 26/3/15 respectively from JOE AGI & ASSOCIATES via electronic transfers. He could not say from Exhibit ‘Q’ where the transfers came from because, it was an electronic platform which promotes virtual banking and does not give room for location of transaction. That Exhibit “P” shows that the signatory to the Account is MRS O. T. ADEMOLA.

Under Cross Examination by Dr. Ikpeazu, SAN for 1st Defendant, PW9 said the Customer in Exhibit “P” did not go to GT Bank Head Office in Lagos to open Exhibit “O”. That the customer Ademola Olabowale Toluwatope was Permanent Secretary, Lagos State Government resident at 51 Oduduwa Crescent CRA, Ikeja, Lagos.

Under Cross Examination by Chief CLARKE, SAN for 2nd Defendant, PW9 stated that 2nd Defendant has access to internet banking. That from Exhibits tendered, the Account was opened in Lagos and that he (PW9) cannot say if it was operated in Lagos. That, when a customer makes transfer it is optional for the customer to state the reason for the transfer.

Under Cross Examination by MR NJIKONYE for 3rd Defendant, PW9 stated that Exhibit “Q” is the undated GT Bank Statement of Account which also did not identify the holder, PW9 said Exhibit “Q” does not show the account name and account number of the customer. That in the said Exhibit, there was no transfer of lumps sum of N30 Million from Joe Agi & Associates to Olabowale Toluwatope Ademola PW9 did not know the purpose of fund transfer of N10 Million of 11/3/15. That he saw another transfer of N10 million from Joe Agi & Associates to the Account on 16/3/2015.

PW9 stated that there was no transfer of any funds from that Account (i.e. Exhibit “Q”) to Adeniyi Ademola. That there were more than eight debit transactions in the account from 11/3/2015 to 16 March, 2016 to cruise events. He has no knowledge of a popular cruise events that plans weddings, events, and other ceremonies in Lagos. He did not know the purpose of transfer of N10 million made from Joe Agi & Associates on 16/3/15 or of any inflows from Agi & Associates to that Account including that of 26/3/2015. That between 11/3/2015 and 26/3/15 there were other inflows into the account apart from that of N10 million. From 11th March, 2015 to 26 March, 2015 there was no transfer of any form of fund from that Account to Adeniyi Francis Ademola.

PW15 is STEVE OPARA of Department of State Services Headquarters. He interviewed the 2nd Defendant on the information that is OLABOWALE ADEMOLA on 27/10/16 and obtained statement from 2nd Defendant which he PW15 attested after same was signed by 2nd Defendant. The written statement of 2nd Defendant to DSS dated 27/10/16 was admitted in evidence as Exhibit “NN”.
Chief CLARKE had no question for PW15.
Under cross examination by DR IKPEAZU, SAN, PW15 said “I was not the investigating Officer in the matter.”
PW16 is BABATUNDE ADEPOJU. He testified on pages 781 – 814 of Vol. II of the record.

PW16 opened his evidence concerning the information against the Defendants on page 782 of the record. He said there were allegations of misuse of judicial powers, corrupt practices, bribe taking and recovery of incriminating materials from 1st Defendant official quarters. He continued:-
“On the 9th October, 2016, I was directed by my superior Mr. Tsah Umaru to investigate allegations of bribe taking, particularly in the case

of one Honourable Jenkens Dubie Gwede who submitted a petition against the 1st Defendant that the latter collected the sum of $200,000.00 as bribe to discharge an earlier Garnishee Order nisi granted in his favour. Also, I was briefed that there was allegation that he, using his position as Federal High Court Judge and his close ties to Senator Bola Ahmed Tinubu (the APC leader) influenced the appointment of his wife as Head of Service, Lagos. Also in my brief, were the allegation that he collected bribe at the early stages of the cases involving former National Security Adviser Rtd. Colonel Sambo Dasuki and the case of Nnamdi Kanu – the IPOB leader. ”

He tendered statement obtained from 1st Defendant as Exhibit “QQ”.
On page 787 PW16 said:-
“As follow up to my lead, I investigated the 2nd Defendant’s Account with Guaranty Trust Bank i.e. the payments made into the Account. The particular transaction that caught attention was the lodgment made in three tranches of N10,000,000.00 each by Barrister Joe Odey Agi. The total was N30,000,000.00. The first payment as reflected in the Statement of Account was made on 11th March, 2015, the second on 18th March, 2015 and third and last on 26th March, 2015.”

Continuing his evidence PW16 said:
“PW16
After writing his statement, I invited the 3rd Defendant to comment on further leads that arose on the payments made into the 2nd Defendant’s Account. He had on 13th December, 2016 asserted that the monies paid into the 2nd Defendant’s Accounts were as a result of instructions received from two of his clients Mr. Ken Hubert and Mr. Bassey Bassey. That the latter instructed him to donate the sum of $150,000 in support of the Ademola’s during their daughter’s wedding. These two persons, according to him, were introduced to him by the 1st Defendant about five years ago and he claimed they operate maritime companies within and outside Nigeria under the names Rangers Subsea Nig. Ltd and Bear Maritime Ltd.
According to Joe Agi, the conversion rate for the said $150,000 was N37,000,000.00 as at then but he only transferred N30,000,000.00 to the 2nd Defendant’s Account.
He wrote a second statement in the presence of Barrister Oladimeji. It was handed over to me and I signed it.”

The 2nd statement made by 3rd Defendant herein was admitted as Exhibit “YY”.
PW16 then said:-
“PW16
“I carried out a follow up investigation in relation to the 3rd Defendant. As regards the payments he made into the 2nd Defendant’s account. I contacted both Mr. Bassey and Mr. Hubert who both admitted to instructing Barrister Joe Agi to support Justice Ademola family with the sum of $150,000.00. I equally raised questions in a Questionnaire and posted to those two persons in their respective places of abode in UK and USA and instructed them to provide answers to these questions before a Commissioner for Oath. I posted it through Nipost EMS Service. I can confirm the mails were delivered.
Through my conversation with the duo, they could not answer the questions on the nature of business between them and Barrister Joe Agi even though, Mr. Hubert responded to some of the questions raised in the questionnaire.
Also, for the purchase of the BMW 320i from Coscharis bought by Barrisfer Agi took statement from him and Ademide Ademola and the statement of Ifeoma Ofonagolu was taken by my colleague. The three confirmed the car was bought by Barrister Joe Agi.

I can identify the questionnaires I sent to these two persons. The original copies were despatched to Mr. Hubert and Mr. Bassey.
I can identify them by my office headquarter on which they were written. They were signed by A. Ahmed. Mr. Ken Hubert responded. This he did through postage. It was an affidavit sworn before a Commissioner for Oath and addressed to DG, SSS.”

The typewritten letter MR. KEN HUBERT dated 26th January, 2017 to DG DSS was admitted as Exhibit “BBB.”
Under cross-examination by CHIEF ROBERT CLARKE, SAN PW16 confirmed that he took statements of 1st and 3rd Defendants when shown the statement of 2nd Defendant Exhibit “NN”, PW16 said:-
“I never in the course of my investigation interacted with her. It is not based only on what I saw in her statement that I made conclusions”

In respect of 3rd Defendant PW16 said on page 805 lines 7 to 12 said under cross- examination as follows:-
“I confirm the 3rd Defendant’s account from where the lodgment was done is domiciled in Calabar.
I tendered documents in this Court relating to certain Garnishee proceedings claiming they influenced the decision of the

1st Defendant. I do not know of any case in relation to which lodgments were made from the 3rd Defendant’s account to influence the 1st Defendant.”

At lines 24 – 32 PW 16 answered thus:-
“When the 3rd Defendant told me that during the wedding of the 1st and 2nd Defendants’ daughter he and some of his friends decided to give them gifts, I was not surprised as an African.
When I saw the three tranches of N10,000,000.00 deposits in the 2nd Defendant’s account, I did not see any purpose for which the lodgment was made. I did not find out from the 2nd Defendant what she did with the monies lodged into her account. From her statement, she claimed she was not aware of the transaction. That was in her statement but not under interrogation.”

And on page 806 of the record PW 16 said at lines 15 – 18 that:-
“Nobody outside the 1st Defendant laid claim to the ownership of all the monies we recovered from the 1st Defendant’s house during the course of my investigation.
During my investigations, nobody told me the monies were given to the 1st Defendant as a bribe.”

Exhibit “MMM” which is the order and record of proceeding of 30/3/2015 in Suit No. FHC/ABJ/CS/130/13 – LINAS INTERNATIONAL LTD & 236 ORS v. FEDERAL REPUBLIC OF NIGERIA & 3 ORS was shown to PW16 who now at the tail end of his evidence on 21/2/17 said as follows:-
“PW16
I have seen Exhibit MMM now shown to me. The Order (i.e. the Exhibit) was made few days after the last tranch of N10,000,000.00. The order was against the interest of the 3rd Defendant. In my view, the 3rd Defendant was not paying the 1st Defendant to make orders against it.
With all I have now seen, my initial view on the matter was based on incomplete knowledge. ”

It is clear as crystal that with the pieces of evidence of prosecution witnesses as exposed above, the prosecution’s witnesses did not establish any of the ingredients of any of the offences for which the Respondent was charged by the Appellant. The learned trial Judge decided properly and within the parameters of the principles of no case to answer in declining to call on the Respondent to defend the Counts or Offences for which she was charged in view of the fact that there is no prima case made out against the Respondent. See:

O. OSUAGWU VS THE STATE (2016) 16 N W L R (PART 1537) 31 at 67C – H to 68A – C per NWEZE, JSC. (2) COP VS MR EMMANUEL AMUTA (2017) 4 N W L R (PART 1556) 379 at 395 H to 396 A-D per AKA, AHS, JSC who said:
“Coming back to the appeal, it was submitted that the Court of Appeal was wrong to set aside the Judgment of the lower Court without considering the totality of the evidence led by the prosecution before the trial Court. I have produced in extenso the evidence led, it is only the complainant who said that the accused respondent besieged his compound and attacked the workers and also damaged the shovel valued at N1,600.00. He never produced the damaged shovel before the Court. No other witness testified that anybody was injured or working tool such as shovel was damaged. PW2 who advised the complainant to look for Romanus Amuju, the contractor who will do the work while he (PW2) supervised the contractor told the Court that Obed Afamefuna and the respondents only disrupted the mixing of the cement and digging the foundation for the wall fence.
PW4 who brought the workers to the disputed land said nothing about either himself or any of the workers being manhandled.

He told the Court that it was the PW1 who told him what he should say when exhibit “C” was being recorded. No evidence was adduced to prove the essential elements of the offences in counts 2 and 3 on which the Court below ruled there was prima facie case requiring the respondents to enter into their defence.
The whole trial from the issuance of the fiat by the Attorney-General to the arraignment of the respondents leading to the proceedings in the Chief Magistrate’s Court and the High Court sitting on appeal was a farce.”
At page 399 E – H 400 A – C per PETER-ODILI, JSC who said:-
“It is to be re-iterated that a no case submission is said to be made out and upheld where:
1. There has been no evidence to prove an essential element in the alleged offence; and/or
2. When the evidence by the prosecution has been so discredited as a result of cross-examination, or is so manifestly unreliable that no reasonable tribunal could safely convict on it. See Ajiboye v. State (1995) 8 NWLR (Pt. 414) 408 at 414 – 415; Ekwunugo v. FRN (2008) 15 NWLR (Pt. 1111) 630 at 639.
From the evidence of PW1 as against that of PW2 the fine details of

what transpired at the scene of crime did not tally especially as regards whether or not the shovel was damaged in the course of the fracas. This Court in Aruna v. State (1990) 6 NWLR (Pt. 155) 125 at 134 held that where the testimonies of the prosecution witnesses clearly conflict, it is not open to pick and choose between the testimonies. Also, it is not open to the Court to credit one and discredit the other unless a proper foundation is laid for such a course. In such a situation the doubt that naturally flows is to be resolved in favour of the appellant. I call in aid the case of Onubogu v. State (1974) 9 SC 1.
It is clear that with or without the evidence of PW4 the prosecution cannot see its way through in making out a prima facie case and so the finding of the Court of Appeal is unassailable in that the prosecution is nowhere near making out a prima facie case for which the Court would call upon the respondent to make his defence. This is because the basis on which such a call to defend would be made has not been established. Firstly. the testimonies of the prosecution witnesses are not such as the prosecution could use them to prove the essential

elements of the alleged offence.
Also the evidence of the prosecution has been so discredited as a result of cross-examination and the testimonies of the witnesses are even conflicting with one another thereby producing the manifest unreliability that no reasonable tribunal could safely convict it. It therefore calls to reason to stop the further waste of time as the Court of Appeal found and uphold the no case submission.”
(underlined mine)

For avoidance of doubt on the part of the prosecution PW 16 concluded his evidence thus:-
“PW16:
I have seen Exhibit MMM now shown to me. The order (i.e. the Exhibit) was made few days after the last tranch of N10,000,000.00. The order was against the interest of the 3rd Defendant. In my view, the 3rd Defendant was not paying the 1st Defendant to make orders against it.
With all I have seen, my initial view on the matter was based on incomplete knowledge.”

On whether Sections 53 and 60 of the Corrupt Practices and Other Related Offences Act, 2000 are applicable to the facts of this case, I am of the view that the provision of Sections 53 and

60 of the Corrupt Practices and Other Related Offences, 2000 ICPC Act are not applicable in this case particularly in respect of the allegations against the Respondent in this appeal and I agree with the findings of lower Court on the said Sections 53 and 60 of ICPC Act 2000.

On whether the Appellant was denied opportunity of being heard. I must say that nothing can be farther from the truth. There is nothing on the face of the record of lower Court to show denial of Justice or right of fair hearing To the Appellant.

Consequently, issues 1, 2, 3 and 4 raised for determinations by the Appellant are hereby resolved against the Appellant. The Appellant’s appeal is hereby adjudged as unmeritorious.

The Appellant’s appeal is hereby dismissed in its entirety. The Ruling of the High Court of Federal Capital Territory, Abuja (CORAM: HON. JUSTICE JUDE OKEKE) dismissing the information against the Appellant with all the counts against the Respondent (2nd Defendant at the lower Court) and discharging the Respondent is HEREBY AFFIRMED.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, PETER OLABISI IGE, JCA and I am in agreement with his reasoning and conclusion arrived at therein.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; PETER OLABISI IGE JCA. I agree with the reasoning, conclusion and orders therein.

Appearances:

O. AGBOLAHOR, ESQ For Appellant(s)

C. IKEJE, ESQ. with. him ADEOLA ADEDIPE, ESQ. and O. C. OGUNYEMI, ESQ. For Respondent(s)