FRN v. SANI & ORS
(2022)LCN/16695(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Wednesday, March 09, 2022
CA/S/71C/2018
Before Our Lordships:
Frederick Oziakpono Oho Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Between
FEDERAL REPUBLIC OF NIGERIA APPELANT(S)
And
1. AHMED RUFAI SANI 2. ALHAJI HASHIM A. DIKKO 3. DEVELOPMENT MANAGEMENT LTD 4. HAD NIGERIA LTD RESPONDENT(S)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL MATTERS
In establishing the ingredients of the offences in Counts 1-14, this Court per OKORO, JCA (as he then was) had this to say on the subject in the case of YAKUBU & ANOR vs. FRN (2009) LPELR – 8848 CA: “Being a criminal charge, the prosecution is bound under Section 138 (1) of the Evidence Act to establish the guilt of the accused person beyond reasonable doubt. See Ogidi v. State (2003) 9 N.W.L.R. (Pt. 824) 1. In the instant case, the prosecution had the burden of proving that the Appellants transferred money allocated for a particular project or service to another project or service and not just transferring of money from one account to another, which in civil service parlance is known as virement. To succeed in this charge, the prosecution must show the following:
1. Evidence of allocation of money.
2. The particular project or service,
3. Evidence of transfer of the money from one particular project or service to another.”
It would be recalled that the 1st Respondent herein as Governor of Zamfara State, was charged under Section 22 (5) of the ICPC Act, which provides that – “Any Public Officer who transfers or spends any sum allocated for a particular project or service, shall be guilty of an offence under this Act and on conviction be liable to a one (1) year imprisonment or a fine of Fifty Thousand Naira. PER OHO, J.C.A.
THE CARDINAL PRINCIPLE GUIDING THE INTERPRETATION OF STATUTES
The settled position of the law is that the quintessence of statutory interpretation is that a statute should be read, understood and given its legislature desired purpose by its user and in addition, to discover the intention of the lawmaker, which is usually deducible from the language used and where the words of the statutes are clear and unambiguous, they must be given their natural and ordinary meanings, unless where doing otherwise would lead to absurdity. See the case of OMOIJAHE vs. UMORU & ORS (1999) LPELR-2645 SC where the Apex Court per KATSINA-ALU, JSC had this to say on the subject: “The principles of construction/interpretation of statutory provisions are well established. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. Judges are not called upon to apply their opinions of sound policy so as to modify or alter the plain meaning of statutory words, but where, in construing the general words the meaning of which is not entirely plain or clear, then there are adequate reasons for doubting whether the Lawmaker would have intended so wide an interpretation as would disregard fundamental principles. In such a situation, the courts may be justified in adopting a narrower construction. See Nokes v. Doncaster Amalgamated Collieries Ltd. 1940 A.C. 1014. PER OHO, J.C.A.
WHETHER OR NOT THE COURT CAN ADD OR SUPPLY PROVISIONS THAT THE STATUTE DID NOT EXPRESSLY PROVIDE
The settled position of the law is that in the interpretative function, the Court must stop where the statute stops and it is not expected to supply or add whatever the statute did not expressly provide no matter how plausible the reasons for doing may be. See the case of ABACHA vs. FRN (2014) LPELR-22014 SC, where the Apex Court per KEKERE-EKUN, JSC had this to say on the subject:
“The purpose of the interpretation of statutes is to discover the intention of the lawmaker, which is usually deducible from the language used. Where the words of the statute are clear and unambiguous they must be given their natural and ordinary meaning unless to do so would lead to absurdity. It is also trite that in the exercise of its interpretative function the Court must stop where the statute stops. Another guide to the interpretation of statutes is that the legislation must be read as a whole. See Ibrahim Vs. Barde (1996) NWLR (Pt. 474) 513 AT 577 B – C per Uwais, CJN (as he then was), Ojokolobo Vs. Alamu (1987) 3 NWLR (Pt. 61) 377 AT 402 F – H, Ahmed Vs. Kassim (1958) SCNLR 28 AT 30 and Kuusu Vs. Udom (1990) 1 NWLR (Pt. 127) 42.”
(Underlined, supplied for purposes of emphasis). PER OHO, J.C.A.
THE INTERPRETATION OF THE LEGAL MAXIM “EXPRESSIO UNIUS PERSONAE VEL REI, EST EXCLUSIO ALTERIUS”
In addition to the foregoing, this Court is in agreement with learned Counsel for the 1st Respondent that the rule of interpretation, usually expressed in the Latin maxim or presumption- Expressio unius personae vel rei, est exclusio alterius, which ordains that where specific words are used in a statute and are not followed by general words, the statute applies to those words mentioned only. See the case of EHUWA vs. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2006) LPELR- 1056 SC, where the Apex Court per OGBUAGU, JSC had this to say on the subject:
“It is now firmly established that in the construction of a statutory provision, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. The Latin maxim is: “Expressio unius est exclusio alterius” – i.e. the expression of one thing is the exclusion of another. It is also termed ‘inclusion unius est exclusio alterius” or “enumeratio unius exclusion alterius” – See Legal Maxims in Black’s Law Dictionary Seventh (7th) Edition page 1635. See also the cases of Ogbunyiya & 5 Ors v. Okudo & 2 Ors. (1979) 6-9 SC. 32; (1979) ANLR 105; (1979) 6-9 SC. 24 at 35 (Reprint), Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt.82) 280, The Attorney-General of Bendel State & 2 Ors. v. Aideyan (1989) 4 NWLR (Pt.118) 646; (1989) 9 SCNJ 80, Udoh & 2 Ors. v. Orthopaedic Hospital Management Board & Anor (1993) 7 SCNJ (Pt.11) 436; (1993) 7 NWLR (Pt.304) 139 at 148 and many others. In other words, the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication with regard to the same issue.”
See also the case of BUHARI vs. YUSUF (2003) 14 NWLR (PT. 841) 446 AT 499 PARAS. F – G. PER OHO, J.C.A.
THE DEFINITION OF THE EXPRESSION “PUBLIC OFFICER”
Apart from the foregoing, it may be appropriate once again and for the avoidance of any doubt to also examine the definition of the expression: “Public Officer”, but this time from the point of view of Section 18 of the Interpretation Act, Cap. 123 LFN, 2010, which provides thus:
“Public Officer” means member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria, 1999, or of the public service of a State.”
The expression: “Public Service of a State is in turn, defined under Section 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides as follows: –
“Public Service of a State means the service of the State in any capacity in respect of the Government of the State and includes service as:
a. Clerk or other staff of the House of Assembly;
b. Member of staff of the High Court, the Sharia Court of Appeal, the Customary Court of Appeal; or other Courts established for a State by this Constitution or by a Law of a House of Assembly;
c. Member or staff of any commission or authority established for the State by this Constitution or by a Law of a House of Assembly;
d. Staff of any local government council;
e. Staff of any statutory corporation established by a Law of a House of Assembly;
f. Staff of any educational institution established or financial principally by a government of a State; and
g. Staff of any company or enterprise in which the government of a State or its agency holds controlling shares or interest.”
The foregoing, no doubt has the imprimatur of judicial pronouncements to the effect that a Governor of a State in Nigeria cannot under stretch of imagination be said to be “Public Officer” under the laws of Nigeria. To this end, see the case of DADA vs. ADEYEYE (Supra) where this Court, whilst espousing the definition of Section 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) aptly captured this present scenario in the following terms:
“…From the above definition therefore, it is clear that the Governor of a State is not in the Public Service of that State within the meaning of S. 318 (1). The Deputy Governor, the Speaker and all other political office holders are not in the public service of the State. I am however aware that under the Fifth Schedule to the Constitution, the definition of public officers, includes political office holders. In my respectful view, the definition is only for the purposes of dealing with ‘Code of Conduct for Public Officers’…” PER OHO, J.C.A.
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of High Court of Zamfara State, sitting at Gusau, Zamfara State (hereinafter referred to as: “the Court below”) delivered on the 5th day of December, 2017 Coram: BELLO MOHAMMED TUKUR, J wherein the Court below sustained the no case submission of the 1st Respondent. The decision of the Court below is at pages 775-801 of the Record of Appeal.
The Appellant being dissatisfied with the decision of the Court below has appealed to this Court vide a Notice of Appeal dated the 15th December, 2017 and filed on the 18th December, 2017. The Notice of Appeal can be found at pages 802-811 of the Records of Appeal.
The Appellant vide an application dated 27th of January, 2021 and filed on the 29th of January, 2021 prayed for leave to amend the Notice of Appeal by filing an additional ground of appeal. The application for leave to amend the Appellant’s Notice of Appeal was heard and granted by this Court on the 7th of October, 2021.
The brief facts of this case is, the 1st Respondent was arraigned alongside the 2nd – 4th Respondents before the High Court of Zamfara State sitting in Gusau on the 12th July, 2016 on a 19 count charge, with charge no: ZMS/GS/72C/2018 dated the 23rd of September, 2015 for alleged offences contrary to Sections 19, 22 (5), 25 (1) (a) and 26(1)(c) of the Corrupt Practices and Other Related Offences Act, 2000. The 19 counts charge with charge no: ZMS/GS/72C/2018 dated the 23rd of September, 2015 can be found at pages 1-10 of the Record of Appeal.
The Appellant by an application dated and filed on the 8th of July, 2016 the initial 19 counts charge dated the 23rd of September, 2015 was amended to a 19 count charge with charge no: ZMS/GS/72C/2018 dated the 1st day of July, 2016 for alleged offences contrary to Sections 19, 22 (5), 25 (1) (a) and 26(1)(c) of the Corrupt Practices and Other Related Offences Act, 2000. Counts 1-14 relates to the offences of spending money allocated for one project on another project; count 15 relates to making a false statement to a public officer; counts 16 & 18 relates to the offence of conferring corrupt advantage on an associate while counts 17 & 19 relates to the offence of conspiracy to confer corrupt advantage on an associate. The amended charge dated 1st of July, 2016 can be found at pages 480-489 of the Records of Appeal.
Hearing of the case commenced on the 12th of October, 2016 during which the Appellant called a total of six (6) witnesses and tendered 26 exhibits marked as Exhibits A-Z1 respectively. The 1st Respondent during the course of cross-examination of the Appellant’s witnesses tendered a total of 8 exhibits marked as Exhibits D1-D8. The trial Court’s proceedings at the hearing are contained at pages 703 -770 of the record of appeal, while the exhibits tendered in evidence can be found at pages 71-76, 77-85, 86-98, 219-432 & 821-1166 of the records of appeal.
Upon the closure of the Appellant’s case, the 1st Respondent made a no case submission by filing a written address dated the 7th of July, 2017 (contained at pages 521-588 of the record of appeal). The 2nd-4th Respondent’s also filed an address on no case dated the 10th of July, 2017 (contained at pages 596-610 of the record of appeal), while the Appellant, responded vide its address dated the 4th day of August, 2017 (contained at pages 611-651 of the record of appeal). The 1st Respondent’s reply on points of law dated the 15th day of September, 2017 can also be found at pages 660-680 of the record of appeal.
The Court below delivered its ruling on the no case submission and sustained same on counts 1 – 14 of the charge on the sole ground that the 1st Respondent is not a Public Officer either under Section 2 of the ICPC Act, 2000; Section 18 of the Interpretation Act or Section 318 (1) of the 1999 Constitution (as amended) and was therefore, discharged on that ground. On account of count 15, the Court below held that the Appellant was unable to establish three (3) out of the four (4) elements, while in counts 16 & 18 the 1st Cross-Respondent was unable to establish any of the ingredients of the offences.
Finally, with respect to counts 17 & 19, the Court also held that the offence of conspiracy had not been established by the Appellant. The ruling of the trial Court on the no case submission dated the 5th July, 2017 can be found at pages 775-801 of the record of appeal. The Appellant been dissatisfied with some aspects of the trial Court’s ruling on counts 1-14 of the charge, has filed this extant appeal.
ISSUES FOR DETERMINATION:
The Appellant nominated a total of three (3) issues for the determination of this Appeal, thus:
1. Whether the Governor of Zamfara State is a Public Officer within the contemplation of the 1999 Constitution of the Federal Republic of Nigeria?
2. Whether it was proper for the Court to descend into the arena of conflict and proffer explanations and summations for unexplained issues, which arose for the Defendants to explain?
3. Whether it was proper for the Court to have discharged the Defendants when there were issues calling for explanation from the defense and they were left unexplained?
On the part of the 1st Respondent, a total of three (3) issues were also nominated for the determination of this Appeal, thus:
1. Whether the Executive Governor of Zamfara State is a Public Officer within the contemplation of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)?
2. Whether the trial Court descended into the arena of conflict and proffered explanations for unexplained issues that called for the Defendants to explain in its ruling on No Case Submission?
3. Considering that the Prosecution failed in establishing prima facie case of all the ingredients of the offences in the 19 Count Charges against the 1st Respondent, whether the trial Court was not right in discharging the Defendants/Respondents?
A careful perusal of the issues nominated by both sides of the divide shall show clearly that the issues nominated across board are clearly identical, except for reasons of semantics. This Court shall therefore determine this appeal based on the issues nominated by the Appellant even though the 1st Respondent has paraded issues which tended to be more practicable and have frontally addressed the issues without any tinges of prevarication. The Appellant’s brief of argument dated the 26th day of October, 2021 but filed on the 27th day of October, 2021 was settled by A. O. MADUABUCHI, SAN while the 1st Respondent’s brief of argument dated 11th day of November, 2021 and filed 18th day of November, 2021 and deemed filed on the 12th day of January, 2022 was settled by CHRIS KELECHI UDEOYIBO, ESQ. On the 25th day of January, 2022 at the hearing of this appeal, learned Counsel for the parties adopted their briefs of argument with each urging upon the Court to resolve the Appeal in favour of their sides.
SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUE ONE:
Whether the Governor of Zamfara State is a Public Officer within the contemplation of the 1999 Constitution of the Federal Republic of Nigeria?
In arguing this issue, learned Counsel contended that the 1st Respondent was charged in the main for running afoul of Section 22(5) of the Corrupt Practices and other Related Offences Act, 2000 which Section provides, thus:
“Any Public Officer who transfers or spends any sum allocated for a particular project or service on another project or service, shall be guilty of an offence under this Act and on conviction be liable to one-year imprisonment or of fine Fifty Thousand Naira.”
As far as Counsel is concerned, the key to this Section is that the person who transfers, spends money allocated for a particular project or service must be a public officer and that for this reason, it is imperative to establish who a public officer is when it is realized that the Defendants were discharged because the 1st Respondent was held not to be a public officer. In doing just this, learned Counsel conceded that the expression: “Public Officer” is not defined by Section 318 of the 1999 Constitution of the Federal Republic of Nigeria, 1999 as amended and rather what is defined is: “Public Service”. Against this position, Counsel submitted that all public servants are public officers, but that all public officers are not “Public Servants”. According to Counsel, the point to be therefore decided here is: which category does the 1st Respondent as Governor fit into?
Based on the foregoing, it was further contended by learned Counsel that going by the nature of this matter the business of the Court of Appeal is to decide whether the conclusion of the Court below that a Governor is not a public officer is right. Counsel added that in interpreting the various law vis-à-vis whether a Governor is a public officer or not, the Court must be guided by certain tenets of interpretations and that the first constraining tenet is that a Court is to interpret laws and not make laws. Counsel therefore argued that the calling of the Court is to interpret and not legislate. He cited the case of EMEJURU vs. ABRAHAM (2019) 4 NWLR (PT. 1663) 541 at 571 to 572 on the issue.
Learned Counsel further argued that the Court relative to what the text is can also rely on the mischief rule of interpretation when applying the text of a given statute. See the case of GCM LTD vs. TRAVELLERS PALACE HOTEL (2019) 6 NWLR (PT. 1669) 507 AT 530. To this end, Counsel argued that the Court must therefore seek out the mischief the Corrupt Practices and Other Related Offences Act sought to stem and interpret Section 318 of the Constitution, the Interpretation Act and the ICPC Act as they pertain to public officers as the essence of the Corruption and Other Related Offences Act is to stem corruption among public officers.
Counsel therefore submitted that under this context, the Chief Executive of every State who is the Governor and the Chief Executive of the Nation, who is the President, must be reined-in in other to stem corruption at the State and Federal levels respectively as that is the essence of the enactment. He added that mischief must thus be curtailed in other to achieve the objective of the enactment. So as not to have the object of the legislature defeated. Counsel cited the cases of UMAR vs. FRN (2019) 3 NWLR (PT. 1660) 549 at 559-560; OKOYE vs. COP (2015) 17 NWLR (PT. 1488) 276 at 318.
On the interpretation of the word: “Includes”, contained in Section 318(1) of the 1999 Constitution, learned Counsel argued that should be narrowly interpreted to mean only the officials of State enumerated therein under Section 318 (1) of the Constitution of Nigeria, 1999, it will produce an absurd result because the word “includes” would have no meaning, or purpose or purport as the Section would still have the same meaning even if it is removed. He argued that it is axiomatic that the drafters of our statutes are very stingy with words and would not use a word just because it is there and available.
Learned Counsel cited the case of JEGEDE vs. AKANDE (2014) 16 NWLR (PT.1432) 43 AT 74 where this Court per TUR, JCA (of blessed memories) interpreted the purpose of the use of word: “Includes” to widen the scope of the concepts covered by the term ‘decision’ and certainly not to narrow its meaning. In the same vein, Counsel argued that the use of the word under Section 318 (1) of the Constitution is certainly not meant to constrict the meaning attached to: ‘Public Officer’ for only those listed in the definition of “Public Service of State” to only the offices listed thereunder, but it is to expand its meaning to include those who are in the service of the State Government in any capacity, which of necessity includes a Governor. He added that Legislatures and draftsmen do not use words because such words can be found in the dictionary. Counsel cited the case of SELEBA vs. MOBIL PRODUCING NIG UNLTD (2006) 12 NWLR (PT. 995) 634 at 652 and submitted that unless a literal interpretation of a statute will lead to absurdity, words used in a statute must be given their ordinary street meanings. Against the backdrop of this position, Counsel referred Court to the new International Webster’s comprehensive dictionary of the English language deluxe Encyclopedia edition vol. 1 2012 for the definition of the word: “includes”, which he submitted that as it is used in Section 318(1) of the Constitution, as it pertains the public service of a State it is in the expansive and additive sense. See NYAME vs. FRN (2010) 7 NWLR (PT. 1193) 344 AT 398-399.
Learned Counsel cited a number of cases of the Apex Court and of this Court where the Governor of a State has been referred to as a Public Officer, some of which are BATTA TRADITIONAL COUNCIL & ANOR vs. TENEKE & ORS (2017) LPELR-3005 (CA), NGILARI vs. STATE (2017) LPELR -4295(CA), ABUBAKAR & ANOR vs. GOVERNOR OF GOMBE STATE (2002) LPELR-11247 (CA), AWOLOLA THE EDEDA OF EDA-ONIYO EKITI vs. THE GOVERNOR OF EKITI STATE & ORS (2018) LPELR – 46346 (SC) AND KSJC & ORS vs. TOLANI (2019) 7 NWLR (Pt. 1671) 382 at 400.
In the case of the REGISTERED TRUSTEES OF THE PLANNED PARENTHOOD FEDERATION OF NIGERIA vs. DR. JIMMY SHOGBOLA (2005) 1 WRN 153 AT 171-172 cited by learned Counsel, he emphasized that three (3) factors have been stated as imperative for a position to be called a public office and the occupant a public officer. According to Counsel, the law is that the position must have been created by the Constitution. He argued that the position of Governor is created by Section 176(1) and (2) of the 1999 Constitution and that for this position the first requirement has thus been satisfied. It was also argued that the same Section 176(2) states that the Governor is the Chief Executive of the State, while Section 192(1) defines to a large extent how the State is to be run. Counsel also contended that there are equally other laws and regulations controlling and regulating how the office of the Governor is run, thus satisfying the second requirement and finally, that the position of Governor is permanent irrespective of whether any person occupies it or not. Learned Counsel therefore contended that the Court below was therefore in extreme error when it discharged the 1st Respondent on the ground that he was not a public officer. Counsel urged this Court to resolve this Issue 1 in favour of the Appellant.
ISSUES TWO & THREE;
Learned Appellant’ Counsel decided to argue issues 2 and 3 together, thus:
Whether it was proper for the Court to descend into the arena of conflict and proper explanations and summations for unexplained issues which arose for the Defendants to explain?
Whether it was proper for the Court to have discharged the Defendants when there were issues calling for explanation from the defence and they were left Unexplained?
The argument of learned Appellant’s Counsel under these issues is that a no case submission will be sustained only when the prosecution has either failed to prove the essential ingredient or ingredients of an offence or the evidence proffered is so manifestly unreliable that no reasonable Tribunal will convict on it because it is manifestly unreliable, having been rendered so as a result of cross-examination. Counsel cited the cases of THE STATE vs. AJULUCHUKWU (2011) 5 NWLR (PT. 1239) 78 at 89 and MARTINS vs. FRN (2018) 13 NWLR (PT. 1637) 523 at 541.
However, Counsel argued that at this stage of the proceedings the Court is concerned only with deciding whether there is such evidence that if the Court believed it could safely convict the Defendant and that in order words the Court considers only the question whether there is such evidence that unless the prosecution calls evidence to explain certain things, those issues will remain unexplained and the Court will be entitled to convict on them. He enthused that a no-case submission should not be allowed when there is something the defense must call evidence to explain. Counsel cited the cases of AMAH vs. FRN. (2019) 6 NWLR (PT. 1667) 160 at 191, SHATTA Vs FRN (2009) 10 NWLR (PT. 1149) 403, CHYFRANK NIG vs. FRN (2019) 6 NWLR (PT. 1667) 143 at 159, OKO vs. STATE (2017) NWLR (PT. 1593) 24 at 53 – 55, ABOGEDE vs. THE STATE (1996) 5 NWLR (PT. 448) 270 at 280.
The contention of learned Counsel, based on the foregoing, is that where there is need for any such explanations, the Court should dismiss the no-case submission and direct the Defendant to enter upon his defense and that under no circumstances should the Court in their rulings ever attempt to proffer any such explanation. He added that after all the Court is not on trial and does not know the facts of what happened as it only acts on evidence presented and applies the law to those facts. According to Counsel, the Court is only master of the law and not the facts and that the Court should never descend into the arena. Counsel cited the case of IBRAHIM vs. OBAJE (2019) 3 NWLR (PT. 1660) 389 at 413.
Learned Counsel further argued that between pages 793 and 796 of the printed records the Court labored through explaining why it had again to discharge the 1st Defendant in counts 16 and 18. The Court said at page 795 that the attention of the 2nd to 4th Defendants was not drawn to the fact that the contract had been reviewed downwards and that this again is confirmatory of existence of incriminating evidence against Defendants respecting counts 16 and 18. Counsel contended that against the backdrop of this position, it is not for the Court to say that the money paid to the 2nd to 4th Defendants which was in excess of the grains supplied and delivered was retained because nobody told the Defendants that the contract had been reviewed downwards.
Counsel therefore submitted that it is not for the Court to make this explanation or ask the questions as these can only come from the Defendants and not the Court. Counsel cited the case of OBI vs. A-G IMO STATE (2016) 3 NWLR (PT. 1500) 425 at 438 to 439 and contended that the Court of trial in the case here under appeal ignored this noble principle and answered questions reserved for the Defendants especially with respect to Counts 17 and 19. In addition, Counsel contended that the Court took the place of the Defendants and began to offer explanations and proffer suppositions as to why certain meetings took place and ended up descending into the realm of conjecture and speculation abandoning its sacred duty of deciding according to the evidence before it. See the case of FRN vs. YAHAYA (2019) 7 NWLR (PT. 1670) 85 at 104 on this issue. Counsel urged this Court to allow the appeal and set aside the decision of the Court below.
1ST RESPONDENT:
ISSUE ONE:
Whether the Executive Governor of Zamfara State is a Public Officer within the contemplation of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
In arguing this issue, learned 1st Respondent’s Counsel urged this Court to discountenance the arguments of the Appellants canvassed in their issue number one in its entirety. Counsel disclosed that the 1st Respondent was charged under the Corrupt Practices and Other Related Offences Act, 2000 for offences created by the said Act and that counts 1 – 14 of charge no: ZMS/GS/53C/2015 for which the 1st Respondent stood trial were all with respect to the transferring of monies allocated for one particular project or service to another project or service by a “public officer” contrary to and punishable under Section 22 (5) of the Corrupt Practices and Other Related Offences Act, 2000. Counsel contended that the ingredients required for the establishment of the offences in Counts 1 – 14 of charge no: ZMS/GS/53C/2015 as decided by this Court in YAKUBU vs. FRN (2009) ALL FWLR (PT. 498) 387 at 410 are as follows: –
(a) That the defendant is a public officer;
(b) That there is a proposed project or service to be undertaken;
(c) That funds were allocated for the said project or service;
(d) That the defendant diverted or applied such funds on another project or service.
The argument of Counsel is that the instant appeal essentially challenges ruling of the trial Court on 1st Respondent’s ‘No Case Submission’ to only the first ingredient, to wit: that the defendant as a public officer was not proved.
Learned Counsel further argued that the trial Court took this view upon a community reading of the definition of a “Public Officer” under Section 2 of the Corrupt Practices and Other Related Offences Act, 2000; Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 18 of the Interpretation Act. See pages 6-14 of the ruling on No Case Submission, appearing on pages 775 – 787 of volume II of the record of appeal.
Counsel drew attention to the ruling of the trial Court, at page 787 of volume II of the record, it held thus:
“Finally, on this consideration, this Court is bound by the decisions of the Supreme Court and Court of Appeal in Dada vs. Adeyeye (2005) 6 NWLR (Pt. 920) 1 at 19 – 20 paras H-A and Ojukwu vs. Ya’adua (2009) 12 NWLR (Pt.1154) 50 at 130, Orji vs. PDP (2009) 14 NWLR (Pt.1161) 310 at 396, Asogwa vs. Chukwu (2003) NWLR (Pt.811) 540 at 574 -576 to the effect that “Public Officer” referred to in Section 318(1) of the Constitution (supra) refers to persons whose employment is of a permanent or statutory nature and that the Governor of State who is a political office holder for a term of years is not a public officer.
Having found so, I hold that no evidence has been led by the complainant in proof of the first element of the offences in counts 1-14 of the charges before the Court.
The consequence of this is that there is no cause for the Court to call upon the 1st Defendant to enter a defense to the offences alleged in count nos. 1-14 of the charge before the Court.”
In this regard, Counsel further argued that Section 2 of the Corrupt Practices and Other Related Offences Act, 2000 Act, herein referred to as (ICPC Act) which is headed INTERPRETATION defines a “public officer” as follows:
“Public Officer means a person employed or engaged in any capacity in the public service of the Federation, State or Local Government, public corporations or private company wholly or jointly floated by any government or its agency including the subsidiary of any such company whether located within or outside Nigeria and includes Judicial officers serving in Magistrate, Area/Customary Courts or Tribunals.”
The contention of Counsel against the backdrop of the foregoing definition is that it is clear, pristine and unambiguous and thus admits for only its literal meaning in its interpretation and that the law is trite that the purpose of interpretation of statutes is to discover the intention of the lawmaker, which is usually deducible from the language used. He added that where the words of the statutes are clear and unambiguous, they must be given their natural and ordinary meanings, unless where doing otherwise would lead to absurdity. According to Counsel, in the interpretative function, the Court must stop where the statute stops. Counsel referred to the case of ABACHA vs. F.R.N. (2014) 6 NWLR (PT. 1402) 43 AT 118 – 119 PARAS. G – A.
It was further contended that the wording contained in the provisions of Section 2 of the Corrupt Practices and Other Related Offences Act, 2000 are so clear and unambiguous that applying the natural and ordinary meaning of the words will neither lead to any absurdity nor defeat the intention of the draftsman.
Counsel also posited that from the definition of “Public officer” in Section 2 of the Corrupt Practices and other Related Offences Act, 2000 reproduced in this judgment, the Corrupt Practices and Other Related Offences Act, 2000 which contains an exhaustive list of the persons who are subject to the said statute, cannot by any stretch of imagination be construed as including the 1st Respondent who was the Executive Governor of Zamfara as per counts 1-14 of charge No. ZMS/GS/53C/2015 when the offences were allegedly committed to be a public officer and thus not subject to the Act. Counsel argued that its position on this point is fortified by the Interpretation Rule that where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included in its ambit. According to Counsel, this rule is found in the Latin maxim: expression uniusest exclusion alterius, meaning that the express mention of one thing in a statutory provision automatically, excludes any other, which otherwise would have been included by implication. Counsel cited the case of BUHARI vs. YUSUF (2003) 14 N.W.L.R (PT. 841) 446 AT 499 PARAS F-G in support of this proposition.
It was therefore submitted by Counsel that since the Corrupt Practices and Other Related Offences Act, 2000 under which the 1st Respondent was charged and prosecuted, has itself proffered a definition for the term: ‘public officer’, for who the Act was principally enacted, it would be unnecessary to go shopping outside the ambit of the statute for a definition from elsewhere. In this regard, Counsel further submitted that the law is settled that where there is a specific legislation over a subject matter or issue, it must be favoured against a general legislation. Counsel cited the case of NDIC vs. GOVERNING COUNCIL I.T.F. (2012) 9 NWLR (PT.1305) 252 AT 273 PARAS. A-C and NOBIS-ELENDU vs. INEC (2015) 16 NWLR (PT. 1485) 197 – 224 PARAS A-C.
Learned Counsel also averted the Court’s attention to the fact that the Appellant who charged and tried the 1st Respondent under the Corrupt Practices and Other Related Offences Act, 2000 has conspicuously ran away from the definition of the term: ‘public officer’ as contained in the statute itself. Rather, that they went fishing for a definition elsewhere. On this score, Counsel urged this Court to hold that the definition of the term: ‘public officer’ as contained in Section 2 of the Corrupt Practices and Other Related Offences Act, 2000 was imbedded in the statute to serve as a guide and pointer to categories of persons that are subject to the offences relating to public officers. He added that based on the express parameters of persons and officers listed in the interpretation Section of the ICPC Act, persons who do not fall within the expressly stipulated list of persons so listed, cannot be included by implication against the clear intendment of the lawmakers.
However, learned Counsel also made an alternative submission in the event that this Court is not inclined to agree with the submissions made in paragraphs 4.6 – 4.14 of the 1st Respondent’s brief of argument. Counsel submitted that the expression: ‘Public Officer’ was equally defined by Section 18 of the Interpretation Act CAP I23 L.F.N 2010 thus: –
“Public Officer means member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria, 1999 or of the public service of a State.”
Flowing from the foregoing, Counsel argued that the definition of the phrase: “Public Service of a State” is defined at Section 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides as follows: –
“Public Service of a State means the service of the State in any capacity in respect of the Government of the State and includes service as:
a. Clerk or other staff of the House of Assembly;
b. Member of staff of the High Court, the Sharia Court of Appeal, the Customary Court of Appeal; or other courts established for a State by this Constitution or by a Law of a House of Assembly;
c. Member or staff of any commission or authority established for the State by this Constitution or by a Law of a House of Assembly;
d. staff of any local government council;
e. staff of any statutory corporation established by a Law of a House of Assembly;
f. staff of any educational institution established or financial principally by a government of a State; and
g. staff of any company or enterprise in which the government of a State or its agency holds controlling shares or interest.”
The contention of learned Counsel thereafter, is that a community reading of the provisions of Section 2 of Corrupt Practices and Other Related Offences Act, 2000; Section 18 of the Interpretation Act CAP I23 L.F.N 2010 and Section 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) will reveal unambiguously that a Public officer of a State is a person engaged in the Public Service of the State as well as the categories of persons enumerated in Section 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
It was further contended that from the comprehensive list enumerated in the Corrupt Practices and Other related Offences Act, 2000 and the Constitution of the Federal Republic of Nigeria, 1999 (as amended), by no stretch of imagination can a Governor, be he serving and/or past could be termed a public officer.
Counsel therefore argued that the position of the 1st Respondent has also been given judicial credence in legion of judicial authorities. In DADA vs. ADEYEYE (2005) 6 NWLR (PT. 920) 1 AT 19-20 PARAS. H-A RATIO 2, where this Court whilst espousing the definition of Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) aptly captured this present scenario in the following terms:
“…From the above definition therefore, it is clear that the Governor of a State is not in the Public Service of that State within the meaning of S. 318 (1). The Deputy Governor, the Speaker and all other political office holders are not in the public service of the State. I am however aware that under the Fifth Schedule to the Constitution, the definition of public officers, includes political office holders. In my respectful view, the definition is only for the purposes of dealing with the “Code of Conduct for Public Officers” …”
Counsel also cited the case of GOV., EBONYI STATE vs. ISUAMA (2004) 6 NWLR (PT. 870) 511 AT 528 – 530 PARAS. B-F, ORJI vs. PDP (2009) 14 NWLR (PT. 1161) 310 AT 396 PARAS. E-H RATIO 11, ASOGWA vs. CHUKWU (2003) 4 NWLR (PT. 811) 540 AT 574-576 and OJUKWU vs. YAR’ADUA (2009) 12 NWLR (PT. 1154) 50 AT 116 PARAS A-F, where the Apex Court emphatically stated thus:
In Section 318 of the Constitution; “civil service of the Federation is defined to mean service of the Federation in a civil capacity as staff of the office of the President, the Vice President, a ministry or the department of the Government of the Federation assigned with the responsibility of any business of the Government of the Federation. And the civil service of the State is defined to mean service of the Government of a State in a civil capacity as staff of the Office of the Governor, Deputy Governor or a ministry or department of the Government of the State assigned with the responsibility for any business of the Government of the State. There are similar definitions of public service of a State.
In all these definitions while persons employed in the civil or public service of the Federation or of a State include staff of the President, Vice President, Governor and Deputy Governor, they do not however include the President, Vice President, Governors and Deputy Governors. Learned Counsel for the 1st – 4th Respondents referred to these definitions in Section 318 of the Constitution and submitted that by excluding elected officers, like Governors and Deputy Governors from the list of persons “employed” in the civil or public service of a State, Governors and Deputy Governors are not civil or public servants within the provision of Section 137(1)(g) of the Constitution. I agree entirely with this submission, and to which Appellant has no answer. I agree that the Latin maxim “expression uniusest exclusion alterius” applies to exclude Governors and Deputy Governors. In like manner, while persons employed in the civil or public service of the Federation and of a State include clerk or other staff of the National Assembly, and State Assemblies, they do not include elected members of the National and State Assemblies.”
(Underline, that of Counsel for emphasis)
Against the backdrop of the foregoing, Counsel submitted that the Appellant’s attempt at expanding the list of persons defined under Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as being members of the Public Service either of the Federation or State is unnecessary in the light of the Supreme Court’s decision in OJUKWU vs. YAR’ADUA (Supra). Based on the foregoing submissions, Counsel urged this Court to resolve issue one in favour of the 1st Respondent.
ISSUES TWO AND THREE:
Whether the trial Court descended into the arena of conflict and proffered explanations for unexplained issues that called for the Defendants to explain in its ruling on No Case Submission.
Considering that the Prosecution failed in establishing prima facie case of all the ingredients of the offences in the 19 Count Charges against the 1st Respondent, whether the trial Court was not right in discharging the Defendants/Respondents.
Learned 1st Respondent’s Counsel also argued issues 2 and 3 together.
In arguing this issue, learned 1st Respondent’s Counsel disagreed with the Appellant that the learned trial Judge in this appeal descended into the arena and provided explanations that required calling the Respondents to open their defense. Counsel contended that the Appellant’s grouse at page 18 of its Brief of Argument as can be gleaned from the quoted portion of the record of appeal and the subsequent arguments canvassed, is with respect to count 15 of the charge, which relates to an offence of knowingly making a false statement to a public officer under the Corrupt Practices and Other Related Offences Act, 2000. Counsel further contended that the ingredients of the said offence in count 15 of the Charge are as follows:
a. That the defendant made or used a statement
b. That the statement is false or intended to mislead or is untrue in any material particular
c. That the defendant knew that the statement is false
d. That the statement was made to an officer of the ICPC or a public officer in the course of his official duties.
As far as Counsel is concerned, the quoted portion of the record by the Appellant is preceded by several premises and reasoning and review, which cumulated in the Court’s findings. To this end, Counsel referred to relevant portions of the printed record beginning with pages 789 – 790 of the lower Court’s observations and submitted that against the backdrop of the submissions of learned Appellant’s Counsel at paragraphs 4.39 – 4.41, the submissions appear to be at total variance with the ingredients of the offence required to be established to prove the offence under Count 15 of the charge. Counsel argued that as a matter of fact, the trial Court had already perused the entire gamut of the Appellant’s evidence in support of the proof of count 15 of the charge and had found that same fell short of establishing the 2nd and 3rd elements of the offence before making the remarks the Appellant appears to be desperately clinging onto.
Learned Counsel agree that at the stage of a no case submission, the Court’s primary concern is with regards to presence of evidence and not sufficiency, and that the Court had found out at page 789 of volume II of the record of appeal, that there was no evidence whatsoever in support of the 2nd and 3rd ingredients required to prove count 15 of the charge. He said in addition, that contrary to the Appellant’s argument the 1st Respondent was not discharged due to insufficiency of evidence but rather based on the total lack of evidence in support of the 2nd and 3rd ingredients required to prove count 15 of the charge.
Counsel further argued that as a matter of law, the circumstances where the Court will discharge an accused person (defendant) in a “No Case Submission” is circumscribed under Section 303 (3) of the Administration of Criminal Justice Act (ACJA) 2015. For ease of reference, it provides thus:
“In considering the application of the defendant under Section 303, the Court shall in the exercise of its discretion, have regard to the following:
(a) Whether an essential element of the offence has been proved;
(b) Whether there is evidence linking the defendant with the commission of the offence with which he is charged;
(c) Whether the evidence so far led is such that no reasonable court or Tribunal would convict on it; and
(d) Any other ground on 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.”
Counsel contended that there are legion of judicial pronouncement on instances where the Court will uphold a “No Case Submission”. Counsel cited the case of COP vs. AMUTA (2017) 4 NWLR (PT.1556) 379 at 391 paras B-E and submitted emphatically that in the absence of any evidence in proof of the 2nd and 3rd ingredients required to establish the offence in count 15 of the charge, the trial Court rightly discharged the 1st Respondent on that count as the trial Court had no business asking the 1st Respondent to proffer any explanations when there was no evidence to establish 2 out of the 4 ingredients required to proof the offence in count 15 of the charge.
Again, Counsel referred to the Appellant’s submissions at paragraph 4.42 of its Brief of Argument and submitted that what actually happened is predicated on what transpired during the course of trial; that quite Contrary to the Appellant’s misleading submission at page 733 of volume 2 of the record of appeal, that the trial Court’s remark was borne out of the Appellant’s PW1’s answer to cross-examination questions by Counsel to the 2nd – 4th Respondents and that this can easily be gleaned from the record of appeal and that it was not made out of the blues as wrongly being contended by the Appellant. Counsel urged this Court to discountenance with the submissions of the Appellant at paragraphs 4.42 – 4.44 of its Brief of Argument as well as the authority cited at paragraph 4.43 which is inapplicable to this appeal, bearing in mind the peculiar facts of this case.
On the charge of speculation leveled against the Court below, learned Counsel argued that no such thing ever took place. Counsel finally urged this Court to hold that the Appellant did not place any evidence of conspiracy before the trial Court and the Court was therefore right to have discharged the 1st Respondent with respect to counts 17 and 19 of charge.
RESOLUTION OF APPEAL
The first issue for determination of this appeal deals with the question of whether the Governor of Zamfara State is a Public Officer within the contemplation of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In arguing this issue in a nutshell, the Appellant was of the view that there are different rules of interpretation of statutes and indeed highlighted the fact that in the instant appeal the mischief rule of interpretation happens to play a role. According to Counsel, the mischief which the ICPC Act had sought to stem in Nigeria is corruption and therefore, that under Section 318 of the 1999 Constitution, the Interpretation Act and the ICPC Act, the relevant provisions expected to assist stem the scourge of corruption in these pieces of legislations must be interpreted to achieve the objective of the law.
Learned Appellant’s Counsel also devoted quite a chunk of his brief in defining the word: ‘includes’ as used in Section 318 of the 1999 Constitution and advocated for an expanded definition to include those who are in the service of the State Government in any capacity including the Governor of a State.
Learned Counsel also advocated a triple factor theory that must co-exist to make an office one that should rightly be called a public office; namely that the office was created by the Constitution, statute or other enabling legislation. Again, that its functions, duties and powers are as defined by law and not only these, that the position must show some permanency and all of which factors are applicable to the office of the Governor of a State.
It may perhaps, be appropriate to preface the Court’s analysis on the fact that the 1st Respondent was charged under the Corrupt Practices and Other Related Offences Act, 2000 for offences created by the said Act itself and that Counts 1-14 deals with allegations of transferring of monies allocated for one particular projects or service to another by a “Public Officer” contrary to and punishable under Section 22(5) of the Corrupt Practices and Other Related Offences Act, 2000.
In establishing the ingredients of the offences in Counts 1-14, this Court per OKORO, JCA (as he then was) had this to say on the subject in the case of YAKUBU & ANOR vs. FRN (2009) LPELR – 8848 CA: “Being a criminal charge, the prosecution is bound under Section 138 (1) of the Evidence Act to establish the guilt of the accused person beyond reasonable doubt. See Ogidi v. State (2003) 9 N.W.L.R. (Pt. 824) 1. In the instant case, the prosecution had the burden of proving that the Appellants transferred money allocated for a particular project or service to another project or service and not just transferring of money from one account to another, which in civil service parlance is known as virement. To succeed in this charge, the prosecution must show the following:
1. Evidence of allocation of money.
2. The particular project or service,
3. Evidence of transfer of the money from one particular project or service to another.”
It would be recalled that the 1st Respondent herein as Governor of Zamfara State, was charged under Section 22 (5) of the ICPC Act, which provides that – “Any Public Officer who transfers or spends any sum allocated for a particular project or service, shall be guilty of an offence under this Act and on conviction be liable to a one (1) year imprisonment or a fine of Fifty Thousand Naira.” Upon a calm and careful consideration of the said section, it is clear that Section 22(5) of the Act creates an offence of strict liability and such offences, these offences defined as: “unlawful acts whose elements do not contain the need for criminal intent or mens rea – See Black’s Law Dictionary 6th Ed. Thus, in such offences, it is enough for conviction for the Prosecution to prove the actus reus, which in this case is the acts of transfers itself.
However, in the peculiar facts and circumstances of this case, it is not just any transfer, but one that has to be done by a “Public Officer” in order to qualify as an offence under Section 22(5) of the Act. The pertinent question that should therefore be answered here is whether the 1st Respondent, a serving State Governor was a “Public Officer” within the intendment of the law or not? This was the question which agitated the minds of the Court below when a no case submission was made by the 1st Respondent and the consequent ruling of the Court below which led to his discharge from criminal responsibility by the Court below.
In resolving this matter, the Court below rather than pander to the persuasive submissions of learned Appellant’s Counsel advisedly took path of a community reading of the definition of who a “Public Officer” is under Section 2 of the Corrupt Practices and Other Related Offences Act, 2000; Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 18 of the Interpretation Act.
In the Court’s ruling at page 787 of volume II of the printed record the Court held as follows:
“Finally, on this consideration, this Court is bound by the decisions of the Supreme Court and Court of Appeal in DADA vs. ADEYEYE (2005) 6 NWLR (PT. 920) 1 AT 19-20 PARAS H-A and OJUKWU vs. YA’ADUA (2009) 12 NWLR (PT. 1154) 50 AT 130, ORJI vs. PDP (2009) 14 NWLR (PT.1161) 310 AT 396, ASOGWA vs. CHUKWU (2003) NWLR (PT.811) 540 AT 574 -576 to the effect that Public Officer referred to in Section 318(1) of the Constitution (supra) refers to persons whose employment is of a permanent or statutory nature and that the Governor of State who is a ‘Political Office’ holder for a term of years is not a ‘Public Officer’.
Having found so, I hold that no evidence has been led by the complainant in proof of the first element of the offences in counts 1-14 of the charges before the Court. The consequence of this is that there is no cause for the Court to call upon the 1st Defendant to enter a defense to the offences alleged in count Nos. 1-14 of the Charge before the Court.”
It is instructive to also note that Section 2 of the Corrupt Practices and Other Related Offences Act, 2000 Act, which happens to be the Interpretation Section of the Act otherwise referred to as the ICPC ACT, 2000 defines a Public Officer as:
“a person employed or engaged in any capacity in the public service of the Federation, State or Local Government, public corporations or private company wholly or jointly floated by any government or its agency including the subsidiary of any such company whether located within or outside Nigeria and includes Judicial officers serving in Magistrate, Area/Customary Courts or Tribunals.”
In agreement with learned 1st Respondent’s Counsel, the foregoing definition of a “Public Officer” is clear, pristine and unambiguous and thus admits for only its literal meaning in its interpretation.
The settled position of the law is that the quintessence of statutory interpretation is that a statute should be read, understood and given its legislature desired purpose by its user and in addition, to discover the intention of the lawmaker, which is usually deducible from the language used and where the words of the statutes are clear and unambiguous, they must be given their natural and ordinary meanings, unless where doing otherwise would lead to absurdity. See the case of OMOIJAHE vs. UMORU & ORS (1999) LPELR-2645 SC where the Apex Court per KATSINA-ALU, JSC had this to say on the subject: “The principles of construction/interpretation of statutory provisions are well established. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. Judges are not called upon to apply their opinions of sound policy so as to modify or alter the plain meaning of statutory words, but where, in construing the general words the meaning of which is not entirely plain or clear, then there are adequate reasons for doubting whether the Lawmaker would have intended so wide an interpretation as would disregard fundamental principles. In such a situation, the courts may be justified in adopting a narrower construction. See Nokes v. Doncaster Amalgamated Collieries Ltd. 1940 A.C. 1014. It should be borne in mind that statutes are construed to promote the general purpose of the legislature/lawmaker. Judges ought not to go by the letter of the statute only but also by the spirit of the enactment.”
It is important to note that from the definition of: “Public Officer” in Section 2 of the Corrupt Practices and other Related Offences Act, 2000 hereinbefore reproduced in this judgment, contains an exhaustive list of the persons who are subject to the said statute, and which by no means include the 1st Respondent who was Governor of Zamfara State as contained in counts 1-14 of charge no: ZMS/GS/53C/2015 when the offences were allegedly committed.
The settled position of the law is that in the interpretative function, the Court must stop where the statute stops and it is not expected to supply or add whatever the statute did not expressly provide no matter how plausible the reasons for doing may be. See the case of ABACHA vs. FRN (2014) LPELR-22014 SC, where the Apex Court per KEKERE-EKUN, JSC had this to say on the subject:
“The purpose of the interpretation of statutes is to discover the intention of the lawmaker, which is usually deducible from the language used. Where the words of the statute are clear and unambiguous they must be given their natural and ordinary meaning unless to do so would lead to absurdity. It is also trite that in the exercise of its interpretative function the Court must stop where the statute stops. Another guide to the interpretation of statutes is that the legislation must be read as a whole. See Ibrahim Vs. Barde (1996) NWLR (Pt. 474) 513 AT 577 B – C per Uwais, CJN (as he then was), Ojokolobo Vs. Alamu (1987) 3 NWLR (Pt. 61) 377 AT 402 F – H, Ahmed Vs. Kassim (1958) SCNLR 28 AT 30 and Kuusu Vs. Udom (1990) 1 NWLR (Pt. 127) 42.”
(Underlined, supplied for purposes of emphasis)
In addition to the foregoing, this Court is in agreement with learned Counsel for the 1st Respondent that the rule of interpretation, usually expressed in the Latin maxim or presumption- Expressio unius personae vel rei, est exclusio alterius, which ordains that where specific words are used in a statute and are not followed by general words, the statute applies to those words mentioned only. See the case of EHUWA vs. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2006) LPELR- 1056 SC, where the Apex Court per OGBUAGU, JSC had this to say on the subject:
“It is now firmly established that in the construction of a statutory provision, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. The Latin maxim is: “Expressio unius est exclusio alterius” – i.e. the expression of one thing is the exclusion of another. It is also termed ‘inclusion unius est exclusio alterius” or “enumeratio unius exclusion alterius” – See Legal Maxims in Black’s Law Dictionary Seventh (7th) Edition page 1635. See also the cases of Ogbunyiya & 5 Ors v. Okudo & 2 Ors. (1979) 6-9 SC. 32; (1979) ANLR 105; (1979) 6-9 SC. 24 at 35 (Reprint), Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt.82) 280, The Attorney-General of Bendel State & 2 Ors. v. Aideyan (1989) 4 NWLR (Pt.118) 646; (1989) 9 SCNJ 80, Udoh & 2 Ors. v. Orthopaedic Hospital Management Board & Anor (1993) 7 SCNJ (Pt.11) 436; (1993) 7 NWLR (Pt.304) 139 at 148 and many others. In other words, the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication with regard to the same issue.”
See also the case of BUHARI vs. YUSUF (2003) 14 NWLR (PT. 841) 446 AT 499 PARAS. F – G.
This Court is also in agreement that since the Corrupt Practices and Other Related Offences Act, 2000 under which the 1st Respondent was charged and prosecuted, has itself proffered a definition for the term “Public Officer”, and which definition did not include the categories of persons which describes the 1st Respondent, it would be unnecessary to go outside the perimeters of the statute in search of other definitions.
Apart from the foregoing, it may be appropriate once again and for the avoidance of any doubt to also examine the definition of the expression: “Public Officer”, but this time from the point of view of Section 18 of the Interpretation Act, Cap. 123 LFN, 2010, which provides thus:
“Public Officer” means member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria, 1999, or of the public service of a State.”
The expression: “Public Service of a State is in turn, defined under Section 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides as follows: –
“Public Service of a State means the service of the State in any capacity in respect of the Government of the State and includes service as:
a. Clerk or other staff of the House of Assembly;
b. Member of staff of the High Court, the Sharia Court of Appeal, the Customary Court of Appeal; or other Courts established for a State by this Constitution or by a Law of a House of Assembly;
c. Member or staff of any commission or authority established for the State by this Constitution or by a Law of a House of Assembly;
d. Staff of any local government council;
e. Staff of any statutory corporation established by a Law of a House of Assembly;
f. Staff of any educational institution established or financial principally by a government of a State; and
g. Staff of any company or enterprise in which the government of a State or its agency holds controlling shares or interest.”
The foregoing, no doubt has the imprimatur of judicial pronouncements to the effect that a Governor of a State in Nigeria cannot under stretch of imagination be said to be “Public Officer” under the laws of Nigeria. To this end, see the case of DADA vs. ADEYEYE (Supra) where this Court, whilst espousing the definition of Section 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) aptly captured this present scenario in the following terms:
“…From the above definition therefore, it is clear that the Governor of a State is not in the Public Service of that State within the meaning of S. 318 (1). The Deputy Governor, the Speaker and all other political office holders are not in the public service of the State. I am however aware that under the Fifth Schedule to the Constitution, the definition of public officers, includes political office holders. In my respectful view, the definition is only for the purposes of dealing with ‘Code of Conduct for Public Officers’…”
See also the case of GOVERNOR OF EBONYI STATE vs. ISUAMA (Supra) where this Court held inter-alia whilst considering the definition of “Public Service” under Section 318 of the 1999 Constitution (as amended) had this to say on the subject:
“…following that line of opinion of the Court, it is evident then that neither the Governor of Ebonyi State nor Ebonyi State House of Assembly and the National Judicial Council can be considered as a public officer within the terms and intendment of Section 11 of Cap. 13 of Anambra State laws…”
Finally, on this issue, see the case of OJUKWU vs. YAR’ADUA (Supra) where the Apex Court per F. F. TABAI, JSC emphatically stated thus: –
“In Section 318 of the Constitution: “civil service of the Federation is defined to mean service of the Federation in a civil capacity as staff of the office of the President, the Vice President, a ministry or the department of the Government of the Federation, while assigned with the responsibility of any business of the Government of the Federation. And the civil service of the State is defined to mean service of the Government of a State in a civil capacity as staff of the Office of the Governor, Deputy Governor or a ministry or department of the Government of the state assigned with the responsibility for any business of the Government of the State. There are similar definitions of public service of a State. In all these definitions while persons employed in the civil or public service of the Federation or of a State include staff of the President, Vice President, Governor and Deputy Governor, they do not however include the President, Vice President, Governors and Deputy Governors. Learned counsel for the 1st – 4th respondents referred to these definitions in Section 318 of the Constitution and submitted that by excluding elected officers, like Governors and Deputy Governors from the list of persons “employed” in the civil or public service of a State, Governors and Deputy Governors are not civil or public servants within the provision of Section 137(1)(g) of the Constitution. I agree entirely with this submission, and to which appellant has no answer. I agree that the Latin maxim “expression uniusest exclusion alterius” applies to exclude Governors and Deputy Governors. In like manner while persons employed in the civil or public service of the Federation and of a State include clerk or other staff of the National Assembly, and State Assemblies, they do not include elected members of the National and State Assemblies.
(Underlined supplied for purposes of emphasis)
It is important to state here that learned Appellant’s Counsel cited a number of cases in support of their submissions, which even though are good law, but which unfortunately, do not apply to the facts of the instant Appeal. For instance, the cases of BATTA TRADITIONAL COUNCIL & ANOR vs. TENEKE & ORS (2017) LPELR-3005 (CA) and NGILARI vs. STATE (2017) LPELR-4295 (CA) referred to by the Appellant are decisions which cannot override the decision of the case of OJUKWU vs. YAR’ ADUA (Supra) as they are decisions handed down by this Court, thus: caught up by the principle of judicial precedence.
In the case of KSJSC & ORS vs. TOLANI (Supra) copiously referred to by the Appellant, this case is clearly distinguishable from the facts and circumstances of the instant case. The Court in that case did not in any way either expressly or impliedly allude to a Governor being a public officer. The three mutually inclusive factors constituting a public office opined upon by the Court was with respect to the public servants and public service of either the Federation or State and this has nothing to do with the office of the Governor of a State.
In the cases of ABUBAKAR & ANOR vs. GOVERNOR OF GOMBE STATE (2002) LPELR-11247 (CA) and AWOLOLA THE EDEDA OFEDA-ONIYO EKITI vs. THE GOVERNOR OF EKITI STATE & ORS (2018) LPELR-46346 (SC), the Governor of a State was only referred to as a Public Officer for the purpose of the 5th Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended) dealing with the Code of Conduct for Public Officers. As a matter of fact, Part II of the 5th Schedule, which contains the list of Public Officers, it is conspicuously headed ‘Public Officers for the purpose of the Code of Conduct’ and that this 5th Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is a distinct piece of legislation subsumed within the Constitution of the Federal Republic of Nigeria, 1999 (as amended), specifically created for the purposes of trying public officers for offences specifically created under the said 5th Schedule. Based on the foregoing, this issue is resolved in favour of the 1st Respondent.
In respect of issues two and three, which learned Counsel on both sides of the divide chose to argue together, the Appellant challenged the validity of the lower Court’s decision in respect of the no case submission sustained by the Court below. The Appellant also argued that the Court below on a number of instances descended into the arena of conflict and ruled in favour of the 1st Respondent on each occasion.
Specifically, the Appellant decried the lower Court’s handling of the Count 15 dealing with the offence of knowingly making a false statement to a Public Officer under the Corrupt Practices and Other Related Offences Act, 2000. The ingredients of the offence in Count 15 of the Charge are as follows:
1. That the defendant made or used a statement
2. That the statement is false or intended to mislead or is untrue in any material particular
3. That the defendant knew that the statement is false
4. That the statement was made to an officer of the ICPC or a public officer in the course of his official duties.
Against the backdrop of the foregoing, placed side by side the contention of the Appellant, it is glaring that the submissions of the Appellant at paragraphs 4.39-4.41 of its brief of argument appears to be at total variance with the ingredients of the offence required to be established in order to prove the offence under Count 15 of the charge. This Court is therefore unable to fault the Court below, which had already perused the entire gamut of the Appellant’s evidence in support of the proof of count 15 of the charge and had found that same fell short of establishing the 2nd and 3rd elements of the offence before making the remarks the Appellant appears to be in disagreement with.
The Court below had stated categorically that the Appellant had failed to establish a prima facie case and went ahead and discharged the 1st Respondent forthwith. To therefore determine whether a prima facie case was made out against the Appellant herein, it may perhaps, be convenient and appropriate to start with the classical position, as enunciated by UDO UDOMA, JSC (OBM) in the case of GODWIN DABOH vs. THE STATE (1976) 5 SC; 197 at 214. The noble Lord said that for a no case submission to succeed, it must be shown:
1) “No legally admissible evidence has been made out linking the accused with the commission of the offence.
2) Whatever evidence which might have linked the accused person with the commission of the offence had been so discredited by cross-examination, that no reasonable Tribunal or Court could be called upon to act on it.”
It is of course to be stated here that the decision in the aforementioned case is to be taken as authority for the view, that at the stage of no case, a Court is not called upon to express any opinion on the evidence and that where there is discredited evidence, it must be apparent on the face of the record of Court.
To do just this, it may be appropriate to preface the Court’s decision on the definition of the expression: “Prima facie” case. This was defined in the Indian case of SINGH vs. JITENDRANATHSEN (1931) 1LR. 59 CALC. 275 as:
“…Ground for proceeding. But it is not the same thing as proof which comes later when the Court has to find whether the accused is guilty or not guilty”. (Per GROUSE, J) …And the evidence discloses a prima facie case when it is such that if un-contradicted and if believed, it will be sufficient to prove the case against the accused.” (Per Lord WILLIAMS, J.) The Supreme Court in AJIDAGBA vs. IGP (1958) SCNLR 60, adopted this definition and also in ADEYEMI vs. THE STATE (1991) 6 NWLR (PT. 195) 1 at 35.
In connection with defining the expression: “No case submission”, the Supreme Court in the case of IBEZIAKO vs. C.O.P. (1963) 1 SCNLR, 999, adopted the practice direction of the Queen’s Bench Division, reported in (1962) 1 WLR 227 and reproduced by ADEMOLA, CJN at pages 68 and 69 as follows:
“A submission that there is no case to answer may properly be made and upheld:
a. When there has been no evidence in the alleged offence.
b. 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.
Apart from these two situations a Tribunal should in general not be called upon to reach a decision as to conviction or acquittal until the whole of the evidence, which either side wished to tender, has been place before it. If however, a submission is made that there is no case to answer, the adjudicating Tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable Tribunal might convict on the evidence so far laid before it, there is a case to answer.”
The Supreme Court in ATANO vs. AG-BENDEL AG – BENDEL STATE (1998) 2 NWLR (PT. 75) 201 also followed this practice direction and NIKI TOBI JCA (as he then was) in DR. OLU ONAGORUWA vs. THE STATE (1998) 1 ACLR, 435 at 465 paragraph 30 – 35, was of the opinion that the two conditions in the said directive are disjunctive and not conjunctive and that it would be competent for a judge to rule that an accused person has no case to answer if one of the two conditions is satisfied.
Still at page 465 of the report, NIKI TOBI (JCA) was of the further view at paragraph 40, in respect of the first condition, that a trial judge is entitled to discharge the accused if he is satisfied that the Prosecution by its own evidence, that is to say, by the ‘ipse dixit’ of the witnesses, did not prove or establish an essential element of the offence and that a trial judge may come to this conclusion even on evidence procured by the defense under cross-examination.
In respect of the second condition, there are two angles submitted under it. The first is that an accused person can be discharged on a no case submission if the trial judge comes to the conclusion that he cannot give credibility or credence to the case of the Prosecution, as a result of the cross-examination of the witnesses by the defense. The second is that the trial judge can discharge an accused person if the evidence adduced by the Prosecution on the face of it or by mere perception does not disclose a prima facie case against the accused person.
In the instant case, the Court below having found that evidence in support of the proof of Count 15 of the charge fell short of establishing the 2nd and 3rd elements of the offence simply showed that the evidence adduced did not disclose a prima facie case against the 1st Respondent at that stage and therefore signaling the early demise of the case of the Prosecution and consequently sustaining the no case submission made on behalf of the 1st Respondent.
By virtue of Section 303 (3) of the Administration of Criminal Justice Act, (ACJA) 2015, a no case of submission will be sustained where:
1. “Whether an essential element of the offence has been proved;
2. Whether there is evidence linking the defendant with the commission of the offence with which he is charged;
3. Whether the evidence so far led is such that no reasonable Court or Tribunal would convict on it; and
4. Any other ground on 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.”
Against the backdrop of the foregoing and under the clear circumstances in which evidence in proof of the 2nd and 3rd ingredients required to establish the offence in Count 15 of the charge, were virtually non-existent, this Court finds itself unable to fault the Court below for rightly discharging the 1st Respondent on that count. The Court below at that stage had no business asking the 1st Respondent to proffer any explanation when there was no evidence to establish two (2) out of the four (4) ingredients required to proof the offence in Count 15 of the charge.
On the allegations leveled against the Court below by the Appellants of descending into the arena of conflicts at paragraphs 4.48 – 4.49 of its Brief of Argument, it is perhaps, important to set the records straight on the issue as it was the testimony of PW1 (a member of the investigative team) in response to cross-examination questions from Counsel to the 2nd- 4th Respondents at pages 731-733 of Volume 2 of the printed records when he said thus:
“… I came across a consultancy agreement and it provides for advance payment. As at that time I did not know anything that prohibits the payment of down payment to the 2nd defendant…
By nature of the service to the 3rd defendant under the contract was bulk sum, the fee was bulk sum fee. The calculation was on the total contract sum. The calculation of the fee in the cheque was on the grains supplied. The fee to be paid to the 3rd defendant is entire contract sum. The calculated amount due to the 3rd defendant in the cheque is not erroneous.”
Based on the answer proffered by Appellant’s witness, PW1, who was a member of the investigative team, it does not lie in the mouth of the Appellant to input any under hand tactics or collusion on the part of the Court below when going by the testimony of its own witness, the actions that were carried out were done pursuant to a lawful agreement freely entered into by parties over a legal transaction and also done in accordance with the contract entered into. In addition, the situation did not change even with the evidence of PW2 who further confirmed as reproduced by the Appellant that all payments were made in accordance with due process. Also, the Appellant, having in addition failed woefully to place any evidence of conspiracy before the Court below, this Court cannot see its way clearly in holding that the Court below did not act properly in discharging the 1st Respondent of any Criminal responsibility on account of counts 17 and 19 of charge. As a result of the foregoing, this appeal is clearly moribund as it is lacking in merit and it is accordingly dismissed.
PATRICIA AJUMA MAHMOUD, J.C.A.: Having read in advance the lead judgment of my learned brother FREDERICK O. OHO, JCA in appeal no. CA/S/71C/2018, I agree with the conclusion and reasoning therein.
MOHAMMED DANJUMA, J.C.A.: I have had the privilege to read in draft, the lead judgment just delivered by my learned brother, DR. FREDERICK O. OHO JCA. I agree with the reasoning and conclusion that the appeal lacks merit and it is accordingly dismissed.
I hereby dismiss the appeal and adopt the consequential orders made in the lead judgment.
Appearances:
A. O. MADUABUCHI, SAN with him, MASHKUR SALISU, ESQ.; HARUNA HEDIMA, ESQ.; ADAKU LAWSON, ESQ.; and USMAN DAUDA, ESQ. For Appellant(s)
CHRIS KELECHI UDEOYIBO, ESQ. – for 1st Respondent. For Respondent(s)
