KWADO v. FRN & ANOR (2022)

KWADO v. FRN & ANOR

(2022)LCN/16957(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, January 14, 2022

CA/K/119/C/2021

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

IDRIS KWADO APPELANT(S)

And

1. FEDERAL REPUBLIC OF NIGERIA 2. NA’IM LAWAL RESPONDENT(S)

RATIO

THE DEFINITION OF SUMMARY PROCEEDINGS

By virtue of Section 33 (2) of the Federal High Court Act Cap F12 LFN 2004, the procedure of trial before the Federal High Court is by summary proceedings. For the definition of summary proceeding, the Black Law Dictionary (6th Edition 1990) page 1204 provides thus:
“Any proceeding by which a controversy is settled, case disposed of or trial conducted, in a prompt and simple manner, without the aid of a Jury, without presentmentor Indictment or in other respect out of the regular course of the common law. In procedure, proceeding are said to be summary when they are short and simple in comparison with regular proceedings.”
In the case of F.R.N. V. Ibori (2014) All FWLR (part 735) 272 summary trials is given the meaning thus:
“(Summary trials are short and fast) cases tried summarily and disposed of in prompt and simple manner.)”
The relevant provision of the Criminal Procedure Act (CPA) that applies to trials in the Federal High Court is Section 277 paragraphs (a) and (b). It provides that:
“All trials at the High Courts other than on information shall be by summary trial.” PER AKINBAMI, J.C.A.

THE POSITION OF LAW ON A TRIAL COMMENCED BY INFORMATION

In a trial commenced by information, the proof of evidence gives life to the information, and an application to quash the information is a challenge that the proof of evidence, which gives life to the information has no legal basis for failing to disclose a prima facie case against the accused, sufficient to put him on trial. A trial by information is a special process with its attendant specification, as the information is sustained by the attached proof of evidence.
On the other hand, the constituents of a summary trial and what differentiates it from a trial by information had long been settled; that a charge in a summary trial stands on its own, has no linkage with proof of evidence.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Federal High Court Katsina, delivered on the 12th day of March, 2021 in Charge No. FHC/KT/46C/2020.

The Appellant as Applicant filed a motion on Notice at the Federal High Court, Katsina, on the 9/12/2020 supported by affidavit and a written address, seeking the following:-
1. An order to strike out his name ldris Kwado as the 1st Defendant from Charge No: FHC/KT/46C/2020, on the grounds that the proof of evidence attached to the charge did not disclose any offence against him, and that the Court lacked jurisdiction to try him under the said charge.
2. An Order of this Honourable Court quashing Charge No: FHC/KT/46C/2020 for being incompetent as it does not only fail to disclose any offence against the Applicant, but the proof of evidence is not only incompetent for failure to comply with Section 379 (1) ACJ Act, 2015, but does not also disclose any offence committed by the Applicant, thereby depriving the Honourable Court of the requisite jurisdiction to try the Applicant.
And for such further order/orders as this Honourable Court may deem fit to make in the circumstances.

The grounds upon which the application is predicated are:-
a) The Complainant filed a charge against the Applicant containing 11 counts.
b) The Complainant filed along with the charge a proof of evidence containing a list of witnesses, copies of documents and statements of the defendants presumably in compliance with Section 379(1) ACJ Act , 2015.
c.) That the Complainant also filed subsequently an additional proof of evidence.
d.) That both the proof and additional proof of evidence do not have the summary of the evidence to be given by the witnesses.
e.) The proof and additional proof of evidence did not disclose any offence against the Applicant.
f.) That Honourable Court lacks the jurisdiction to try the Applicant since there is no evidence in proof and additional proof of evidence alleging the commission of any offence by the Applicant.

That the proof and additional proof of evidence have not complied with Section 379 (1) ACJ Act, 2015.

The Motion is supported by a 10 paragraph affidavit deposed to by one Gideon Solomon, M, Christian, Adult, a legal practitioner in the Law firm of Messrs Elisha Y. KURAH, SAN & CO, the counsel for the Appellant in this case.

The 1st Respondent opposed the application by filing a ten (10) paragraphs Counter-Affidavit. Written Addresses were filed and exchanged by the parties, and in a considered Ruling delivered on the 12/3/2021, the learned trial Judge held:-
“A careful reading of the 11 count charge before the Court against the two (2) Defendants and the Proof of Evidence, and the Additional Proof of Evidence attached, clearly shows that there is a prima facie case against the Defendant, it is the duty of the prosecution to establish a case against the 1st Defendant/Applicant beyond reasonable doubt before the Defendant can either be convicted or discharged.
Whether the charge will succeed is clearly a different issue. Section 19 EFCC Act, 2004 and Section 20 Money Laundering Act, 2012 clearly vest this Honourable Court (Federal High Court) with jurisdiction to try cases of Money Laundering Offences. Therefore, this Court has jurisdiction to adjudicate over this case…
Consequently, this Motion on Notice of the 1st Defendant/Applicant is not granted, and it is hereby struck out for lack of merit and the Court hereby orders that trial into the case should commence.”

The Appellant who was Applicant is aggrieved by the decision of the Court and has therefore on the 25/3/21 filed this appeal consisting of four grounds of appeal. The grounds of appeal and particulars are:-
GROUND ONE
The Honourable trial Federal High Court erred in law when it failed to strike out the name of the Appellant from the charge, as was sought in the motion filed, and moved before her, when it is abundantly clear that the proof of evidence does not disclose any offence against him.
PARTICULARS OF ERROR
1. The proof of evidence read along with the charge did not disclose any evidence against the Appellant.
2. The statements of witnesses filed along with the proof of evidence did not provide a nexus between the charge and the offence allegedly committed by the Appellant.
3. The main proof of evidence as well as the various additional proof of evidence did not link the Appellant with the offence with which he was charged.
4. Despite the fact that the proof of evidence did not link the Appellant with the offence, the trial Court summarily dismissed the motion.
GROUND TWO
The Honourable trial Federal High Court erred in law when it held that the proof of evidence linked the Appellant to the charge, when from the statements of witnesses proposed to be called by the prosecution, the Appellant had not been implicated in the offence allegedly.
PARTICULARS OF ERROR
1. The trial Federal High Court held that the Appellant was linked to the charge by the proof of evidence.
2. The various sums of money mentioned in counts 1-11 were alleged in the charge to have been given to the Appellant by one Abdulaziz Shinkafi.
3. Abdulazeez Shinkafi whose statement was part of the proof of evidence and also attached as Exhibit “3” to the motion, never mentioned the name of the Appellant as one of the persons to whom he had given any money.
4. None of the other witnesses in their various statements mentioned that they gave any money to the Appellant.
5. Despite all these, the trial Federal High Court held that a prima facie case was made out by the prosecution against the Appellant, in the proof of evidence, and ordered that the trial of the Appellant should proceed.
GROUND THREE
The trial Federal High Court erred in law, when it ordered that the trial of the Appellant, should proceed when there was nothing in the proof of evidence linking the Appellant, to the offence contained in the charge framed.
PARTICULARS OF ERROR:
1. The proof of evidence was bereft of anything linking the Appellant with the offences charged.
2. The statements contained in the proof of evidence, and the various additional proof of evidence exonerated the Appellant from the offence charged.
3. The statement of the accused was a complete denial of the offences charged.
GROUND FOUR:
The Honourable trial Federal High Court erred in law when it held as follows:-
“A careful reading of the charges i.e the 11 count charges before the Court against the two (2) defendants and the proof of evidence, and the additional proof of evidence attached clearly shows that there is a prima facie case against the Defendant. It is the duty of the prosecution to establish a case against the 1st Defendant/Applicant beyond reasonable doubt before the defendant can either be convicted or discharged.”
When it was not demonstrated in the Ruling that a painstaking consideration of the statements of witnesses was done before arriving at that conclusion.
PARTICULARS OF ERROR:
1. Statements of witnesses were attached to the charge and the proof of evidence.
2. The Ruling did not show that, the trial Court considered the written statements of the witnesses, as contained in the proof of evidence as well as the motion filed, as there was no reference to any of those statements in the Ruling.
Reliefs sought from the Court of Appeal are:-
An Order allowing the appeal, setting aside the Ruling of the trial Court and:
1. Striking out the name of the Appellant from the charge;
2. Discharging the Appellant.

The parties complied with the Rules of this Court, by filing Briefs of Arguments. The Appellant’s Brief of Argument was dated the 25/6/2021, filed same day. Therein, the Appellant formulated a sole issue for determination as follows:
“Whether the Federal High Court was right, when it dismissed the Appellant’s motion seeking to strike out his name from the Charge, on the ground that the 11 Count Charge did not disclose any offence against him.” (Grounds 1,2,3, and 4)

The Respondent adopted the sole issue formulated by the Appellant for the determination of this appeal:-
“Whether the Federal High Court was right, when it dismissed the Appellant’s motion seeking to strike out his name from the Charge, on the ground that, the 11 Count Charge did not disclose any offence against him.” (Grounds 1,2,3, and 4 of the 2nd Notice of Appeal dated 24th day of March, 2021, but filed on 25th day of March, 2021).

The Appellant filed a Reply Brief on the 23rd of July, 2021.
I shall determine this appeal on the sole issue as formulated by the Appellant.
“Whether the Federal High Court was right, when it dismissed the Appellant’s motion seeking to strike out his name from the Charge, on the ground that the 11 Count Charge did not disclose any offence against him.”

In arguing the appeal, learned counsel for the Appellant, started by stating what is required in determining an application to quash a charge:-
1. Whether the Charge disclosed an offence.
2. Whether from the proof of evidence a prima facie case has been disclosed.
3. Whether the accused has been sufficiently linked to the offence committed.

In support of his contention, learned counsel cited the cases of Grange v FRN & ORS (2009) LPELR-8853(CA); Aduku v FRN (2009) 9 NWLR (Pt 1146) 370.

Learned counsel enumerated the ingredients for the offence of Money Laundering under Section 16(1)(d) of the Money Laundering (Prohibition) Act, 2011, as amended as follows:
a). That the Accused person made or accepted cash payment above N5,000,000:00 in the case of an individual and N10,000,000:00 in the case of a body corporate.
b). That the cash payment did not pass through a Financial lnstitution.

Learned counsel cited the cases of BELGORE V. FRN & ANOR (2018) LPELR-47471(CA); ATOYEBI V. FRN (2017) LPELR – 43831 (CA) on Money Laundering.

Learned counsel looked at the charge, the Proof of Evidence, counts 1,2,3,4,5,6,7,8,9,10 & 11 which alleged that the Appellant, ldris Kwado, received various sums of money exceeding the threshold allowed by the Money Laundering (Prohibition) Act, 2011, as amended. The aforesaid counts also alleged that the Appellant received the various sums, millions of naira, from one “Abdulaziz Shinkafi”, a former Director of Finance and Account, Sure-P Department of Katsina State, contrary to Sections 1(a) and 16 (2)b of the Money Laundering (Prohibition) Act, 2011 as amended.

The counts further alleged that the purported act of the Appellant in accepting cash payment went contrary to Section 16(1)d, read along with Section 1(1)a, and amounted to Money Laundering punishable under Section 16(2)b of the Money Laundering (Prohibition) Act, 2011 as amended.

Learned counsel surmised that in an attempt to support the allegation against the Appellant, the complainant attached the written statement of the said Abdulaziz Shinkafi, the former Director of Finance and Accounts, Sure-P Department of Katsina State. The statement of the said Abdulaziz Shinkafi can be found in the Proof of Evidence accompanying the charge. The statement was also attached or exhibited to the motion as Exhibit “3”. In the said statement, Abdulaziz Shinkafi stated that he withdrew various sums of money in cash on various occasions and handed the cash to one Nasiru S. Ingawa, Special Adviser on Sure-P matters, Department of Sure-P, Katsina State. The said Nasiru S. Ingawa is not on trial, but listed as a witness by the prosecution.

In his further submissions, learned counsel stated that Abdulaziz Shinkafi is listed as a witness in this case, that is why his witness statement is found in the Proof of Evidence and that throughout his statement, he never mentioned that he handed over cash to the Appellant. In fact, his statement never made reference to the Appellant. Learned counsel contended that, the Proof of Evidence, does not have any witness who will establish the key ingredients of the offence of Money Laundering against the Appellant, since Abdulaziz Shinkafi did not state that he handed over any money to the Appellant. Learned counsel submitted that it will be too oppressive to allow the Appellant to go through the rigours of a tedious trial with this kind of Proof of Evidence.

Despite the fact, that the Proof of Evidence did not link the Appellant with the Charge, the learned Trial Federal High Court Judge held that by the Proof of Evidence a prima facie case was made against the Appellant. It was argued by the Counsel that, this conclusion reached by the Trial Court did not analyze the charge, and the Proof of Evidence, especially the statement of Abdulaziz Shinkafi attached therein. There is no demonstrable proof from the ruling that the trial Court ever examined the statement of Abdulaziz Shinkafi, and the various counts of the charge. In that if the trial Court had done that it would have discovered that though the 11 counts of the charge alleged, that Abdulaziz Shinkafi gave the various sums of money to the Appellant, his statement before the EFCC never mentioned that, he gave any amount of money to the Appellant. Since he never mentioned the name of the Appellant as someone to whom he had given money as alleged in the charge, it can be safely concluded that the prosecution by the proof of evidence, has not been able to establish and cannot sustain any link between the Appellant and offences alleged in the 11 count charge. This is because it is the proof of evidence that should be used to link the accused to a charge. The Honourable Court is referred to the case of Ugoala v The State of Lagos (2021) 3 NWLR (pt.1763) 263 at 286 E-G.

It was submitted by learned counsel, that the trial Court ought to have considered the proof of evidence in its entirety to enable it determine whether it established any prima facie case against the Appellant, but this it failed to do. The Court is further referred to the case of ABACHA V THE STATE (2002) 11 NWLR (PT 779) 437 AT 496 E-H.

It is further submitted that where it is shown or discernible by a trial judge, that the information and proof of evidence before the Court do not link the accused with any offence or with the offence contained in the charge, the trial Court will be in firm footing to quash the charge. See the following cases -IBRAHIM V THE STATE (2018) 1 NWLR (Pt.1600) 279; ALAO-AKALA V FRN (2014) ALL FWLR (Pt.738) 850 AT 872-873; ONI V FRN (2012) LPELR (CA); AKACHI V THE STATE (2021) 3 NWLR (Pt. 1763) 199 AT 215 A-G.

Learned counsel is unmindful of the fact that the complainant, 1st Respondent attached a document purporting to be a confessional statement of the 2nd Respondent wherein it is alleged that he, the 2nd Respondent, confessed to have handed over cash to the Appellant.

It was further submitted that the so-called or purported statement of the 2nd Respondent cannot be used to incriminate the Appellant when it is clear that the Appellant in his statement attached to the proof of evidence and motion completely denied the allegation contained in the said statement. It is a settled principle of law, that the statement of a co-accused cannot be used as evidence against a fellow accused. He cited the case of OHUKA & ORS V STATE (NO.2) (1988) LPELR-2362 (SC).

In the instant case, the Appellant in his statement which was attached to the motion as Exhibit 2, completely repudiated the contentment’s of the statement of the 2nd Respondent, Exhibit 4.

Learned counsel submitted that, the 2nd Respondent was not listed as a prosecution witness. He is not expected to give evidence against the Appellant in favour of the prosecution. The inclusion of his alleged statement is merely to fulfill the requirement of the Administration of Criminal Justice Act, 2015.

It is submitted that there is a serious contradiction in the statement of the said Shinkafi, on the amount of cash he allegedly handed over to the 2nd Respondent, which is allegedly to have also been handed over to the Appellant by the 2nd Respondent.

In his statement Exhibit B, to the motion Abdulaziz Shinkafi stated that he handed over the following cash payments to the 2nd Respondent:
a) N323,651,000:00
b) N823,651,000:00
c) N575,000,000:00
Total N1,722,302,000:00

In the charge against the Appellant and the 2nd Respondent there is no count alleging that the said Na’im Lawal (2nd Respondent) accepted any cash payment from Abdulaziz Shinkafi. Assuming, without conceding, that the charge alleges the receipt of cash by Na’im Lawal from Abdulaziz Shinkafi, the sums of money alleged in the charge do not correspond with what is stated by Abdulaziz Shinkafi in his statement attached to the proof of evidence.

Learned counsel submitted that the amount, or sum of money alleged to have been paid in cash as reflected in charge, is completely different and at variance with that stated by the said Abdulaziz Shinkafi in his statement to the EFFC, which is Exhibit 3 in the motion.

Learned counsel urged this Court not to allow the Appellant to go through the rigors of this trial when there is no reliable witness included in the proof of evidence to link him with the offence alleged.

Counsel urged this Court to answer the lone issue in favour of the Appellant, allow the appeal, set aside the Ruling of the trial Court and strike out the name of the Appellant on the ground that the proof of evidence does not link the Appellant with the offence contained in the various counts of the charge.

The learned counsel for the Respondent, in arguing the lone issue, surmised that the Appellant’s appeal is hinged on the premise that the proof of evidence filed by the 1st Respondent at the Federal High Court did not disclose a prima facie case to support the charge pending before the Court, as if the procedure for trying criminal causes and matters before the Federal High Court is done by way of information. He referred to paragraphs 3.01 and 3.02 of the Appellant’s brief, and the authorities of Grange v. FRN & Ors (2009) LPELR-8853 (CA), and Aduku v. FRN (2009) 9 NWLR (Pt 1146) 370 cited by the Appellant, which laid down the guiding principles to follow in an application to quash a charge on the ground that the proof of evidence did not disclose a prima facie case. The two cases were commenced before the High Court of the Federal Capital Territory, Abuja after consent to prefer a criminal charge was first sought and obtained under the provision of Section 185(b) of the Criminal Procedure Code (CPC) of FCT, Abuja before the accused persons were arraigned on the charge. Whilst the case of Balogun v. FRN (2015) LPELR-24744(CA), whose citation was not fully supplied by the Appellant, was based on information filed by the lndependent Corrupt Practices Commission (lCPC) before the Oyo State High Court.

It was submitted that, the three authorities cited above and relied upon by the Appellant, whose guiding principles relate to trials through information, have no relevance or applicability in causes and matters being tried before the Federal High Court summarily. Learned counsel contended that in a trial commenced by information, the proof of evidence gives life to the information, and that an application to quash the information, is a challenge that the proof of evidence, which gives life to the information has no legal basis for failing to disclose a prima facie case against the accused sufficient to put him on trial. Moreover, a trial by information is a special process with its attendant specification, as the information is sustained by the attached proof of evidence. It’s life is derived from there. He cited in support of his contention, the case of ldehen v. FRN (2015) LPELR-24794 (CA).

It was pointed out by learned counsel that, the constituents of a summary trial and what differentiates it from a trial by information had long been settled; that a charge in a summary trial stands on its own, and has no linkage with proof of evidence. And considering that trial by information is alien to the criminal trial process in the Federal High Court, which is summary in nature, the accompaniment of a charge in the Federal High Court, by proof of evidence is a mere surplus age that cannot elevate a charge so filed, to information. He again cited the case of ldehen v. FRN (supra) pages 12-13.

In his further submissions, learned counsel stated that a charge filed at the Federal High Court, not being information, is not liable to be quashed for insufficiency of the attached proof of evidence, and objections can only be limited to formal defects in the charge as contemplated in Section 396(2) of the Administration of Criminal Justice Act, 2015, and the case of ldehen v. FRN (supra) page 13. Learned counsel submitted that the judicial authorities referred to by Appellant are irrelevant within the present context as they relate to cases initiated via information.

It was noted by learned counsel, that the power of the Federal High Court, to try criminal causes and matters summarily is provided for under the provisions of Section 33 of the Federal High Court Act, Cap F12 LFN, 2004 (FHCA). That the import of Section 33(1) is to ensure substantial compliance with the provisions of the Criminal Procedure Act (CPA), and now its successor, the Administration of Criminal Justice Act (ACJA), 2015 in criminal trials before the Federal High Court (FHCA). He noted that the words “shall be conducted substantially” are instructive, clear and unambiguous. Section 33(1) opens with words subject to the provisions of this Section…

And, under sub-section (2) of Section 33, FHCA provides:
(2) “Notwithstanding the generality of subsection(1) of this Section, all criminal causes or matters before the Court.”

The phrase “subject to” which occurred in Section 33(1) has to be construed to determine what effect, if any, the phrase has on the provisions of sub-Section (2) of the same Section. The phrase is not uncommon in the context of its use in statutes and was construed by the Supreme Court in the case of Labiyi v. Anretiola (1992) 8 NWLR (Pt 258) 139 @ 163-164; Ebhota v. PIPDC Ltd (2005) 15 NWLR (Pt.948) 266 @ 283 A-E. Learned counsel on the use of the term “notwithstanding” cited the case of NDIC V. OKEM ENT. LTD (2004) ALLFWLR (Pt 201) 1176 @1232.

Learned counsel reiterated that summary trial is a trial without indictment, information, consent and proof of evidence. Learned counsel referred to the Black’s Law Dictionary, 6th Edition, page 1204 as “Any proceedings by which a controversy is settled, cases disposed of, or trial conducted, in a prompt and simple manner, without the aid of a jury, without presentment or indictment, or in other respects out of the regular course of common law.” He also referred to Section 494 (1) of ACJA, 2015, which defined summary trial as follows:
“summary trial” means any trial by a Magistrate or a trial by a High Court commenced without filing an information.” He cited the case of Alamieyeseigha v. FRN (2006) 16 NWLR (Pt 1004) 1 .

Now referring to the charge against the Appellant, learned counsel reiterated the fact that, since the charge against the Appellant was instituted at the Federal High Court, the trial must be conducted summarily and not by way of information in accordance with Section 33(2) of the Federal High Court Act. He further elucidated that, Part 36 of ACJA, 2015 titled: “Trials and Summary Trials Generally” has elaborate provisions dealing with summary trials generally, including what documents may accompany the charge to be filed, Section 376 (4) ACJA. Learned counsel assumed this Court disagreed with his submissions, that a charge in a summary trial stands on its own and has no link with the proof of evidence filed, he referred this Court to the two written statements made by Mr. Nasiru lngawa, the SA, to the former Governor of Katsina State, attached to the 1st Respondent’s counter affidavit and marked as exhibit EF1 at pages 812-827 of Vol. 2 of the Record of Appeal. Mr Nasiru lngawa stated in his statement of 28th and 29th September, 2016 at pages 822-826 lines 20-35, that funds meant for the provision of material support and assistance to rural women amounting to N323,651,000:00, and funds meant for the support of various artisans, businesses and associations in the amount of N500,000,000:00 were diverted and given to Na’im Lawal, the 2nd Respondent at the direction of the former Governor. He said before he was appointed as a Special Assistant, the former Governor had told him of the need to make savings from the Sure-P Department, to fight the 2015 elections. That on the issue of Mr. Na’im Lawal, the former Governor directed him to give the Appellant funds from the Sure-P Department, but the Appellant immediately suggested that the funds should be given to Na’im Lawal, the 2nd Respondent, when they are ready. The former Governor, who heard him make the suggestion did not object to it. Based on the directive of the former Governor, Mr. Nasiru lngawa collected the GSM number of the 2nd Respondent from the Appellant, and forwarded same to his Director of Finance and Accounts, Mr. Abdulazeez Shinkafi, whom he instructed to handover the funds he was about withdrawing at the bank, to the owner of the GSM number that had just been forwarded to him when he meets him in the bank. The funds were accordingly withdrawn by Mr. Abdulazeez Shinkafi as directed, and subsequently handed over about N556,800,000:00 only on 26/3/2015, to the 2nd Respondent who acknowledged same by issuing five receipts written in Hausa language. The 2nd Respondent also received more funds from Mr. Shinkafi on 2/4/2015, 3/4/2015 and on 7/4/2015 respectively amounting to N813,151,000:00. The total cash payment accepted by the 2nd Respondent is N1,369,951,000:00 only. The acknowledgments can be found at pages 184-198 of Vol. 1 and on page 670 of Vol. 2 of the Record of Appeal. Learned counsel stated that the foregoing facts show a clear case of conspiracy to divert public funds belonging to Katsina State Government by the former Governor, the Appellant and the 2nd Respondent, and which they did do. The 2nd Respondent would not have been involved in the criminal scheme of stealing public funds, if the Appellant had not thrust him onto the scene to assist him accept the cash payments on his behalf.

In this instant case, the Appellant was charged alongside the 2nd Respondent with the offences of conspiracy to accept cash payments exceeding N5,000,000:00; for accepting cash payments exceeding N5,000,000:00 contrary to, and punishable under the provisions of the Money Laundering (Prohibition) Act, 2011 (as amended), and for retaining the aggregate sum of N1,369,951,000:00 contrary to and punishable under the provisions of the Economic and Financial Crimes Commission (Establishment) Act, 2004.

Learned counsel enumerated the ingredients of the offence of conspiracy contrary to Section 18(a) of the Money Laundering (Prohibition) Act, 2011 (as amended) with which the Appellant is charged in Count 1 as follows:
1. Agreement to do an unlawful act;
2. Agreement to do a lawful act by an unlawful means.

In support of his contention, learned counsel cited the case of Hon Adeyemi Sabit lkuforiji v. FRN (2018) LPELR-43884 (SC). He went further to enumerate the ingredients of the offence of limitation to make or accept cash payment contrary to Section 16 (1) (d) read together with Section 1 (a) of the Money Laundering (Prohibition) Act, 2011 and punishable under Section 16 (2) (b), with which the Appellant was charged in Counts 2-9 are:
1. The defendant is a natural person, not a corporation.
2. The defendant an individual, made or accepted cash payment in excess of N5,000,000:00
He again cited the case of Hon. Adeyemi Sabit lkuforiji v. FRN (supra) page 16-17.

On the other hand, the ingredients of the offence of retention of proceeds of a criminal conduct contrary to Section 17(a) of the EFCC Act, 2004, and punishable under Section 17 (b) with which the Appellant is charged in Counts 10 and 11 are:-
1. A person who otherwise retained the proceeds of a criminal conduct or an illegal act on behalf of another person; and
2. Knowing that the proceeds is as a result of a criminal conduct by the principal.

Learned counsel submitted that the word ‘Retain” has been given judicial interpretation in a similar provision in Section 17 (a) of the Money Laundering (Prohibition) Act, 2011 (as amended) to mean, “to keep in possession or use”. He cited the case of Ogunbodede v. FRN (2018) LPELR-44883 (CA).

Referring to Mr Nasiru lngawa’s Statement at pages 812-827 of the record of appeal, and the statements of Mr. Abdulazeez Shinkafi at pages 34-53 of the record of Appeal; these statements alongside the acknowledgments issued by the 2nd Respondent on receipt of the funds clearly established each of the ingredients to the offences the Appellant is charged with.

First, there was a meeting between the Appellant and the former Governor, where the SA Sure-P Department was directed to divert funds meant for empowerment programs to the Appellant. The Appellant did not repudiate the criminal scheme but agreed to participate in it through the 2nd Respondent, whom he nominated to accept the funds on his behalf. Secondly, the 2nd Respondent consummated the scheme by accepting cash payments from Mr. Abdulazeez Shinkafi, whom he issued acknowledgement receipts confirming he had taken possession of the funds. Apparently, the 2nd Respondent took the funds he accepted to the Appellant who sent him on the errand. From the foregoing, the ingredients of offences of conspiracy, accepting cash payment exceeding N5,000,000:00, and retention of the proceeds of a criminal conduct charged were clearly established against the Appellant and the 2nd Respondent.
It was further argued by learned counsel, that the strenuous attempt by the Appellant to extricate himself from the offences charged, on the ground that Mr Abdulazeez Shinkafi never mentioned him in his statement at pages 34-53 of the Record of Appeal, is of no moment. In that, the Appellant has chosen to ignore the written statements of Mr. Nasiru lngawa, which implicate him, as if they do not exist in arguing that his name was not mentioned by Mr. Shinkafi. Given the central role played by the Appellant in agreeing to participate in the criminal scheme; Mr Abdulazeez Shinkafi does not need to make direct cash payments to him to be inculpated as a principal party to the crime. See Peter v. State (2018) LPELR-44357 (SC) page 28.

The Appellant’s conduct in the circumstances of this case clearly shows a common intention between him and the former Governor to divert and launder public funds, for political purposes, for which he assisted in procuring the 2nd Respondent, to execute their common objective by accepting the cash payment to fight the 2015 election. See the case of Nwankwoala v. State (2006) LPELR-2112 (SC) pages 19-20. Learned counsel contended that, prima facie evidence taken in context, when evidence has not been taken, must be distinguished from when evidence has been adduced. When evidence has not been taken as in the instant case, it simply means “first appearance.” See the case of Hon. Adeyemi Sabit lkuforiji v. FRN (2018) LPELR-43884 (SC), pages 192-193.

The point was reiterated by learned counsel that, the facts elicited from the statements of Messers Abdulazeez Shinkafi and Nasiru lngawa, show prima facie evidence that the offences the Appellant was charged with were committed, and that he is directly linked to them with the 2nd Respondent.

The Appellant has argued about why the statements made by the 2nd Respondent should not be looked at in considering whether prima facie evidence was disclosed against him. He has also raised issues of serious contradictions, in the statements of Abdulazeez Shinkafi, as if the proof of evidence before the Court is already evidence. Learned counsel contended that proof of evidence is not judicial evidence, but a compilation by the prosecution of the statements of the complainant and his witnesses, statement of the accused, and his witnesses, and others if any. He further submitted, that proof of evidence has no evidential value upon which issues of contradiction can be determined, or argued that 2nd Respondent’s statement cannot be used to incriminate him. The utility of proof of evidence is that, it is useful and a relevant material in the exercise by a judge of his discretion to give or refuse consent that information for an indictment be preferred against an accused person, and also give notice to an accused person of the case which he is expected to face during his trial in Court, see the case of Pius v. State (2012) LPELR-2304 (CA) pages 30 – 31. Learned counsel reiterated the fact that, consent of Court/judge is not a prerequisite at the Federal High Court before a defendant can be charged.

In the light of the foregoing, counsel urged this Court to answer the question in the affirmative by dismissing the appeal for lacking in merit.

Learned counsel urged this Court to dismiss the appeal, for lack of merit, as the 1st Respondent has ably demonstrated that the offences charged were not only committed, but linked to the Appellant who procured the services of the 2nd Respondent to accept the cash payments on his behalf.

The Appellant’s counsel in the Reply Brief urged this Court to discountenance facts contained in paragraphs 2.1-2.3 of the 1st Respondent’s brief. He urged this Court to discountenance the cases of ldehen v. FRN (supra) and Alamieyeseigha v. FRN (2006) 16 NWLR (Pt. 1004) 1 cited and relied upon by Appellant that it is inapplicable to the facts and circumstances of the present case. He urged this Court to discountenance them in the determination of this appeal, as it is apparent that the 1st Respondent’s counsel did not appreciate the decision of the Court of Appeal in ldehen v. FRN (supra), and Alamieyeseigha v. FRN (supra), the facts of which are entirely different from the facts of this case and the law relied on by the Court in arriving at those decisions was different from the law under which the Appellant in this case was charged before the Federal High Court.

Resolution of Issue
I have read the proceedings and ruling of the trial Court, vis -a-vis the brief of argument of parties in this appeal.

It is apparent from the record of appeal that the Appellant and his co-accused, were by a charge dated the 26th day of June, 2020, arraigned before the Federal High Court Katsina, on a charge of Criminal Conspiracy with the former Governor of Katsina State, to accept cash payments of sums each of which exceeded N5,000,000 and thereby committed an offence contrary to Section 18 (a), 1 (a) of the Money Laundering (Prohibition) Act, 2011 and punishable under Section 16(2)(b) of the same Act.

The procedure for trying criminal causes and matters before the Federal High Court are not done by way of information.

Therefore it was correctly pointed out by Respondent’s counsel, that the authorities of Grange v. FRN & Ors and Aduku v. FRN cited by the Appellant, which laid down the guiding principles to follow in an application to quash a charge on the ground that the proof of evidence did not disclose a prima facie case. Those two cases were commenced not before the Federal High Court. Also the case of Balogun v. FRN (2015) was also based on information was not filed before the Federal High Court. The Respondent’s counsel rightly made the point that a charge filed at the Federal High Court not being Information is not liable to be quashed for insufficiency of the attached proof of evidence, and objections can only be limited to formal defects in the charge as contemplated in Section 396 (2) of the Administration of Criminal Justice Act, 2015 . See the case of ldehen v. FRN (supra).

However, after his arraignment, the Appellant filed a motion seeking an order of the lower Court to strike out his name as 1st Defendant in Charge No: FHC/KT/46C/2021, and quash the charge on the grounds stated on the body of the motion paper, which had earlier been reproduced in the course of this judgment.

From the record of appeal, the Appellant and his co-accused were charged before the Federal High Court Katsina.

By virtue of Section 33 (2) of the Federal High Court Act Cap F12 LFN 2004, the procedure of trial before the Federal High Court is by summary proceedings. For the definition of summary proceeding, the Black Law Dictionary (6th Edition 1990) page 1204 provides thus:
“Any proceeding by which a controversy is settled, case disposed of or trial conducted, in a prompt and simple manner, without the aid of a Jury, without presentmentor Indictment or in other respect out of the regular course of the common law. In procedure, proceeding are said to be summary when they are short and simple in comparison with regular proceedings.”
In the case of F.R.N. V. Ibori (2014) All FWLR (part 735) 272 summary trials is given the meaning thus:
“(Summary trials are short and fast) cases tried summarily and disposed of in prompt and simple manner.)”
The relevant provision of the Criminal Procedure Act (CPA) that applies to trials in the Federal High Court is Section 277 paragraphs (a) and (b). It provides that:
“All trials at the High Courts other than on information shall be by summary trial.”

In a trial commenced by information, the proof of evidence gives life to the information, and an application to quash the information is a challenge that the proof of evidence, which gives life to the information has no legal basis for failing to disclose a prima facie case against the accused, sufficient to put him on trial. A trial by information is a special process with its attendant specification, as the information is sustained by the attached proof of evidence.
On the other hand, the constituents of a summary trial and what differentiates it from a trial by information had long been settled; that a charge in a summary trial stands on its own, has no linkage with proof of evidence.

Trial by information is alien to the criminal trial process in the Federal High Court, which is summary in nature. A charge filed at the Federal High Court, not being information, is not liable to be quashed for insufficiency of the attached proof of evidence, and objections can only be limited to formal defects in the charge as contemplated in Section 396 (2) of the Administration of Criminal Justice Act,2015 which provides as follows:- (2) After the plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgment provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgment. In an application such as this, the duty of the trial Court is to take a cursory look at, the proof of evidence so as to determine if facts have been raised which appear in law, to constitute an offence or offences known to the law. See Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria.

I have carefully read the Proceedings and Ruling of the trial Court, vis-a-vis the brief of argument of parties in this appeal.
It was rightly pointed out by Respondent’s counsel that the trial in this appeal was before the Federal High Court.

By virtue of Section 33 (2) of the Federal High Court Act Cap F12 LFN 2004, the procedure of trial before the Federal High Court is by summary proceedings.

It is apparent on the record of appeal that, the Appellant and his co-accused, were by a charge dated the 26th day of June, 2020, arraigned before the Federal High Court, on a charge of Money Laundering contrary to Section 18(a) read together with Section 1(a) of the Money Laundering (Prohibition) Act, 2011 (as amended), and punishable under Section 16(2)(b) of the same Act.
The charge can be found on pages 1-4, Vol. 1 of the record of appeal.

The Appellant pleaded not guilty to all the counts and thereafter filed a motion seeking to strike out his name from the charge. The trial Court, after hearing arguments from counsel at pages 348-356 of the record rightly dismissed the Application. In the determination of the issue, the trial Court has no duty to make any investigation, as investigation is not the duty of the Courts, but only to determine if the facts are provable, for once the facts as disclosed by the proof of evidence tend to bring the conduct of a person within the purview of acts prohibited by law, it will be sufficient to proceed to trial.

Section 251(2) of the 1999 Constitution as altered by the First, Second and Third Alterations Act, 2010 states that:
“The Federal High Court shall have and exercise jurisdiction and powers in respect of treason, treasonable felony and allied offences.”
While Section 33(2) of the Federal High Court Act states that:
“Notwithstanding the generality of sub-section (1) of this Section all criminal cases or matters before the Court shall be tried summarily.”
The combined reading of Section 251(2) of the Constitution and Section 33(2) of the Federal High Court Act is that jurisdiction is conferred on the Federal High Court by the Constitution to try treason, treasonable felony and allied offences, and these offences shall be tried summarily.

The succinct facts of this case are that the Appellant is an associate of the former Governor of Katsina State, Dr. lbrahim Shehu Shema, who was the Governor of the State between 2007 and 2015. About the same period, the 2nd Respondent worked at the Appellant’s block factory on a salary of N18,000:00 (Eighteen Thousand Naira) a month, and also runs important errands for him.

The Appellant had a meeting with the former Governor alongside the Special Assistant (SA) to the former Governor on Sure-P, Mr. Nasiru lngawa in 2015 during which the former Governor directed the (SA) to divert funds from the Sure-P Department to the Appellant, not for any job done or services provided for the Katsina State Government, but for political activities. The Appellant instead asked the (SA) to give the funds to the 2nd Respondent who serves him, and the former Governor did not object to the suggestion. Then the Appellant gave the (SA), the 2nd Respondent’s GSM number, which the (SA) forwarded to his Director, Finance and Account at the Sure-P Department, Mr. Abdulazeez Shinkafi who was at the material time at the bank to release the funds he was about withdrawing to the owner of the GSM number, who was going to call him. The 2nd Respondent called Mr. Abdulazeez as agreed, and eventually met with him at the bank to collect the funds from him.

Mr. Abdulazeez Shinkafi eventually handed over the sum of N556,800,000:00 (Five Hundred and fifty six million, eight hundred thousand naira) he had already cashed in his name to the 2nd Respondent. The 2nd Respondent had to make five trips on 26/3/2015 from the bank, as he could not convey the entire amount on a single trip to its destination.

The 2nd Respondent also received three more cash payments at the behest of the Appellant on 2/4/2015, 3/4/2015 and 7/4/2015 amounting to N813,151,000:00 (Eight hundred and thirteen million, one hundred and fifty one thousand naira) bringing it to a total of N1,369,951,000:00 (One Billion, Three Hundred and sixty nine million, nine hundred and fifty one naira) only. On each of the trips from the bank, the 2nd Respondent issued to Mr. Abdulazeez Shinkafi an acknowledgement receipt dated 26/3/2015, 2/4/2015/ 3/4/2015 and 7/4/2015 indicating the amount conveyed in Hausa language before appending his signature, which receipts Mr. Shinkafi later translated to English language. The acknowledgments are at pages 184-198 of Vol. 1 and page 670 of Vol. 2 of the record of appeal.

1st Respondent on 29th June, 2020 filed an 11 count Charge against the Appellant and the 2nd Respondent under the Provisions of the Money Laundering (Prohibition) Act, 2011 (as amended) for conspiring with the former Governor of Katsina State, Dr. lbrahim Shehu Shema to accept several cash payments, each of which exceeds N5,000,000:00 (Five Million Naira) in Count One and in Counts 2-9 with accepting various cash payments above authorized threshold from Mr. Abdulazeez Shinkafi, the former Director of Finance and Account Sure-P Department, Katsina State, and in Counts 10-11, with retaining control of the aggregate sums of monies accepted from Mr. Abdulazeez Shinkafi on behalf of the former Governor under the provisions of Section 17 (a) of the Economic and Financial Crimes (Establishment) Act, 2004. The charge and proof of evidence is at pages 1-198 of Vol. 1 of the

Record of Appeal.
I have taken time to carefully study the record of proceedings, the 11 count charge before the trial Court against the two accused persons and the proof of evidence and additional proof of evidence attached, they clearly show that there is a prima facie case against the Appellant. Therefore, the correct decision reached by the trial Court is one which is unassailable, l would not disturb it.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the benefit of a preview of the leading judgment delivered by my Learned Brother, FATIMA OMORO AKINBAMI, JCA wherein the facts and issues in contention are set out in extenso.

The Federal High Court Act makes it clear beyond peradventure in S. 33 that “all criminal causes and matters before the Court shall be tried summarily”; and the Supreme Court highlighted the constituents of a summary trial and what stands it apart from trial by information in ALAMIEYESEIGHA v FRN (2006) 16 NWLR (PT. 1004) 1. A summary trial has no affinity with proof of evidence, and a criminal charge before the Federal High Court will not metamorphose into a trial by information merely because it is accompanied by proof of evidence, which is a mere surplusage. See IDEHEN v FRN (2015) LPELR-24794(CA). It would seem therefore an application to quash a criminal charge on the basis that the proof of evidence accompanying the charge does not disclose any offence against the accused or that little or no nexus is established between the accused and the alleged offence is alien to the practice and procedure of summary trial applicable in the Federal High Court.

It is on the basis of the foregoing and the fuller reasons articulated in the leading judgment that I hereby affirm my agreement with the leading judgment dismissing this appeal for want of merit.