LAWAN v. FRN
(2022)LCN/17036(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, February 24, 2022
CA/ABJ/CR/495/2021
Before Our Lordships:
Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal
Peter Olabisi Ige Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
HON. FAROUK M. LAWAN APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
THE POSITION OF LAW FOR WHEN A CHARGE IS SAID TO BE BAD FOR DUPLICITY
For a Charge to be bad for duplicity, it must contain more than one offence in the same Count or a repetition of an offence already stated in another Count.
Upon a cursory look at the Charge which has been reproduced above, can it be rightly said that the Charge is bad for duplicity? The response is in the negative and this is because it is abundantly clear that each of the three separate offences are contained in three separate counts. Documents and Statutes that are clear and unambiguous must be given their literal meaning. Furthermore, in addition, the Appellant must show how the duplicity of the Charge misled him or caused him to suffer a miscarriage of Justice. The Courts have since moved away from the era of technical justice to an era of substantive justice. Reason being that the Court recognizes that we are human and therefore fallible and susceptible to slips and minor errors. Where such errors do not in any way infringe on the fundamental rights of the Accused Person as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), this Court will not interfere with the decision of the trial Court. I find the dictum of His Lordship, KALGO, J.S.C. in the case of ONAKOYA V. FRN (2002) LPELR-2670 (SC) very instructive on this issue. The appeal was against the decision of the Court of Appeal, Lagos Division which upheld the decision of the Failed Banks Tribunal, Lagos Zone V. The Accused at the Failed Banks Tribunal, Lagos Zone V, pleaded not guilty to charge of committing a felony by approving and granting credit facility of 14m to one Alhaji Ibrahim, a customer of the Maiduguri Branch of the Savannah Bank of Nigeria PLC without lawful authority and in violation of the lending rules and regulations in force at the time in Savannah Bank particularly Memorandum 119. The Conduct is also an Offence contrary to Section 19(1)(a) (b) & (c) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No.18 of 1994 as amended. In dismissing the appeal, the Apex Court while affirming the decision of this Court acknowledged that there was procedural irregularity but it did not lead to miscarriage of justice. The Apex Court held thus;
“Duplicity is a matter of procedure or form and not evidence. See R. v. Greenfield (1973.) 57 Cr. App, R. 849. It is covered by Section 156 of the Criminal Procedure Act which provides in part:
“For every distinct offence with which any person is accused there shall be a separate charge …”
It is therefore a matter of procedure and not law. This Court in the case of Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 at 717 had this to say:-
“As we have stated several times, the days when parties pick their way in this Court through naked technical rules of procedure, the breach of which does not occasion a miscarriage of justice are fast sinking into the limbo of forgotten things. The Court now takes the view that not every slip is fatal to the cause of justice. Judges are not omniscient robots, which never deviate from a programmed course. They sometimes slip. But only those slips that have been shown to have affected the decision appealed against will amount to a substantial misdirection which will result in the appeal being allowed. See on this Onajobi v. Olanipekun (1985) 11 SC (Pt. 11) 156 at 163; also Jude Ezeoke & Ors. v. Moses Nwagbo & Anor (1988) 1 NWLR (Pt.72) 616 at 626. ” PER DONGBAN-MENSEM, J.C.A.
THE DEFINITION OF “PUBLIC SERVICE OF THE FEDERATION”
Section 318 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) stipulates thus;
“Public service of the Federation” means the service of the Federation in any capacity in respect of the Government of the Federation and includes service as: (a) Clerk or other staff of the National Assembly or of each House of the National Assembly; (b) member of staff of the Supreme Court, the Court of Appeal, the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Customary Court of Appeal of the Federal Capital Territory, Abuja or other Courts established for the Federation by this Constitution and by an Act of National Assembly; (c) member or staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly; (d) staff of any area council; (e) staff of any statutory corporation established by an Act of the National Assembly; (f) staff of any educational institution established or financed principally by a Government of the Federation; (g) staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interest; and (h) members or officers of the armed forces of the Federation or the Nigeria Police Force or other government security agencies established by law. “(Emphasis supplied). PER DONGBAN-MENSEM, J.C.A.
For the Prosecution to succeed in its case and to ground a conviction against an Accused Person, it must prove its case beyond reasonable doubt. See Section 135 of the Evidence Act, 2011, OGUNDIYAN V. THE STATE (1991) LPELR-2333 (SC). NKWUDA EDAMINE V. THE STATE (1996) LPELR-1002 (SC), MORUFU BOLANLE V. THE STATE (2009) LPELR-788 (SC) and THE STATE V. FEMI OLADOTUN (2011) LPELR-3226 (SC). With the standard of proof pegged beyond reasonable doubt, where any doubt exists it must be resolved in favour of the Accused Person. This is because it is not required of the Accused Person to prove his innocence but it is required of the Prosecution to prove the guilt of the Accused Person in order to secure a conviction. This is in consonance with the provision of Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) where the Accused Person is considered innocent until proven guilty. Where there is any doubt at all, this doubt must be resolved in favour of the Accused Person. This is the decision of the Apex Court in a plethora of cases. See AFOLALU V. THE STATE (2010) 16 NWLR (Pt. 1220) 584, OKPUTUOBIODE & ORS. V. THE STATE (1970) LPELR-2524 (SC), JOHN OKONJI V. THE STATE (1987) LPELR-2479 (SC), THE STATE V. IDAPU EMINE & ORS. (1992) LPELR-3218 (SC).
To prove the Charge against a Defendant, the Prosecution can rely on any or all of the following methods viz:-
(a) Evidence of eye witness or witnesses; or
(b) Confessional statement of the accused/Defendant; or
(c) Through circumstantial evidence. See SHUAIBU ABDU V. THE STATE (2017) 7 NWLR (PT. 1564) 171. AKEEM AFOLABI V. THE STATE (2022) 2 NWLR (PT. 1814) 201, UDO V. STATE (2016) LPELR-40721 (SC), (2016) 12 NWLR (PT. 1525) 1. ABOKOKUYANRO V. STATE (2016) LPELR–40107(SC), (2016) 9 NWLR (PT. 1518) 520, DANBABA V. STATE (2018) LPELR-43841 (SC), (2018) 11 NWLR (PT. 1631) 426 and ABDU V. STATE (2016) LPELR-41461 (SC), (2017) 7 NWLR (PT. 1564) 171. PER DONGBAN-MENSEM, J.C.A.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This is an appeal challenging the decision of the High Court of the Federal Capital Territory, Abuja, delivered on the 22nd of June, 2021 Coram A. O. Otaluka (J.), wherein the trial Court found the Accused Person now Appellant guilty and convicted him on three Count Charge for the offence of corruptly asking for, agreeing to accept and accepting gratification contrary to the provisions of Sections 8(1)(a) and 17(1)(a) of the Corrupt Practices and other Related Offences Act, 2000 and punishable under the same Sections of the said Act.
I find the brief facts presented by the Respondent apt and I hereby reproduce same anon: That;
“The Appellant was a member of the House of Representatives (7th National Assembly) and Chairman of the House of Representatives Ad-hoc Committee on monitoring of fuel subsidy regime, which was set up in 2012.
That sometime in April, 2012 or thereabout, the Appellant while acting in his official capacity as a member of the House of Representatives Ad-hoc Committee on Monitoring of Fuel Subsidy Regime, corruptly asked for the sum of $3,000,000.00 (Three Million Dollars) for himself from one Mr. Femi Otedola, Chairman, Zenon Petroleum and Gas Ltd, on account of intention of showing favour to Mr. Femi Otedola by removing the name of Zenon Petroleum and Gas Ltd. From the Report of the House of Representatives Ad-hoc Committee on Monitoring of Fuel Subsidy Regime.
That the Appellant, while acting in the course of his official duty and capacity, corruptly obtained the sum $500,000.00 (Five Hundred Thousand Dollars) for himself from Mr. Femi Otedola Chairman Zenon Petroleum and Gas Ltd as an inducement to remove name of Zenon Petroleum and Gas Ltd from the report of the committee on monitoring and fuel subsidy regime.
That the Appellant pleaded not guilty to the charge and trial commenced.
That in proof of its case, the Respondent called five (5) witnesses and tendered the following exhibits:
I. Subpoena duces tecum served on PW1.
II. Document titled ‘Order paper for the Special Session Sitting of the House of Representatives on Sunday, 8th January 2012.
III. First votes and proceedings of the Special Session Sitting of the House of Representatives on Sunday, 8th January, 2012.
IV. Order paper of House of Representatives Sitting on Wednesday, 18th April, 2012.
V. Votes and proceedings of House of Representatives Sitting on Tuesday, 8th April, 2012.
VI. Order paper of House of Representatives Sitting of Tuesday, 24th April, 2012.
VII. Votes and proceedings of House of Representatives Sitting on Tuesday, 24th April, 2012.
VII. Report of the Ad-hoc Committee to verify and determine the Actual Subsidy Requirements and monitor the implementation of Subsidy Regime in Nigeria, Resolution No: HR.1/2012
IX. Memo for forwarding $100,000.00 to the Defendant.
X. CTC of Leadership Newspaper of 28th April, 2012.
XI. Search warrant issued for search of house of Hon. Adams Jagaba.
XII. Undertaking given by the Defendant dated 16th, June 2012 to refund the money $600,000.00.
XIII. Diplomatic passport of the Defendant.
XIV. Search Warrant issued for search of Defendant’s house.
XV. Document by the Defendant alleging handing over of the sum of $600,000.00 to Hon. Jagaba (PW4).
XVI. PW2G -63: The Statements of the Defendant dated 14/6/2012.
XVII. The statement of the Defendant dated 15/6/2012.
XVIII. The statement of the Defendant dated 20/6/2021.
XIX. The statement of the Defendant dated 11/7/2012.
XX. The statement of the Defendant dated 16/7/2012.
XXI. The statement of the Defendant dated 19/7/2012.
XXII. The statement of the Defendant dated 25/7/2012.
XXIII. Letter dated 19/4/12 referred to in exhibit PW2L.
XXIV. Letter dated 23/4/12 written by Mr. Otedola to DG SSS.
XXV. The DVD.
XXVI. The Certificate of compliance.” (See pages 5-7 of the Respondent’s Brief of Argument).
At the close of the Respondent’s case, the Appellant made a No Case Submission which was overruled by the trial Court. The Appellant opened his defence, he testified for himself and 3 other witnesses.
At the end of the trial, the Appellant was found guilty, convicted and was sentenced to 7 years each on Counts 1 and 2 and 5 years imprisonment on Count 3. The sentences are to run concurrently.
The parties in this appeal shall simply be referred to as Appellant and Respondent.
Dissatisfied with the decision of trial Court, the Appellant filed a Notice of Appeal of twelve (12) Grounds on 28/07/2021. The Notice of Appeal is undated. Its Amended Notice of Appeal of fourteen (14) Grounds dated 20/10/2021 was filed on 21/10/2021 and was deemed filed on 10/11/2021. The Appellant’s Brief of Argument dated 12/11/2021 was filed on 12/11/2021 while the Respondent’s Brief of Argument dated 21/12/2021 was filed on 21/12/2021 and was deemed filed on 12/01/2022. The Appellant filed its Reply Brief dated 10/01/2022 on 10/01/2022 and consequentially deemed filed on 12/01/2022.
J. B. Daudu, SAN, of learned senior Counsel to the Appellant distilled six (6) issues for determination to wit;
1. Whether the High Court of the Federal Capital Territory Abuja, Per Hon. Otaluka J, was not in grave error when it convicted the Appellant in one breath in count 1 for ‘corruptly asking for the sum of $3 Million from PW5 (Otedola)’ and in another breath convicting him of ‘corruptly agreeing to accept the sum of $3 Million from PW5 (Otedola)’ for identical purpose, when the 2 counts were not only duplicitous but are mutually exclusive, incongruous, embarrassing and prejudicial to the fair trial of the Defendant? (Ground 1, Amended Notice of Appeal).
2. Whether the 3-count charge upon which the Appellant was purportedly tried, convicted and sentenced by the High Court of the Federal Capital Territory Abuja not incurably defective as the entire trial and the resultant conviction was based on a repealed or non-existent legislation i.e., the Corrupt Practices and other Related Offences Act 2000, which was repealed by the 2003 version? (Ground 2, Amended Notice of Appeal).
3. Whether the trial High Court of the FCT Abuja was not in grave error when it held in relation to a critical ingredient common to the 3-count charge in this trial that the Appellant, a legislator in the House of Representatives of the National Assembly of Nigeria was ‘a public officer’ within the contemplation of the Corrupt Practices and other Related Offences Act 2000? Or put in another way, whether a legislator in the National Assembly of Nigeria is for the purpose of the legislation referred to above also known as the ICPC ACT a ‘Public Officer’? (Grounds 3 and 4, Amended Notice of Appeal).
4. Whether the proceedings, trial and conviction of the Appellant under the Corrupt Practices and other Related Offences Act, 2000, was not a nullity, thereby ousting the jurisdiction of the trial High Court of the FCT Abuja, in view of the non-advertence by the learned trial Judge, the Hon. Otaluka, J to the provisions of the Legislative Houses (Powers and Privileges) Act? (Grounds 5 and 6, Amended Notice of Appeal).
5. Whether the Prosecution proved any or all the ingredients of the 3-count charge for which the Appellant stood trial before the High Court of the FCT Abuja beyond reasonable doubt or even at all? In other words, whether the conviction of the Appellant in the circumstances described above is sustainable? (Grounds 7, 8, 9 and 10, Amended Notice of Appeal).
6. Whether the contradictions, inconsistencies and inadequacies that plagued the evidence of the Prosecution witnesses were of such grave nature as to render the Appellant’s conviction on the 3-count charge unreasonable and unsustainable having occasioned a miscarriage of justice? (Grounds 11, 12 13 and 14 Amended Notice of Appeal).
A.K. Alilu, Esq., Assistant Director, Department of Public Prosecutions of the Federation, of learned Counsel to the Respondent distilled six (6) issues for determination to wit;
(a) Whether the charge against the Appellant was bad for duplicity.
(b) Whether the Appellant was convicted of crimes in a repealed or non-existent legislation.
(c) Whether the Appellant, a legislator is a public officer within the ambit of the ICPC Act 2000.
(d)The non-advertence by the learned trial Judge, Hon. Otaluka J. to the provisions of the Legislative Houses (Powers and Privileges) Act-
(e) Whether the prosecution proved any or all the ingredients constituting the offences in the 3-count charge against the Appellant.
(f) The issue of contradictions and irreconcilables in the prosecution’s case.
Both the Appellant and the Respondent have raised very similar issues for determination, this appeal shall be determined based on the six (6) issues raised by the Appellant. A reflective consideration of all the issues nominated by both sides shows that the issues can be determined together in two groups: Issues 1, 2 and 4 and Issues 3, 5 and 6.
ISSUES 1, 2 AND 4
The learned Silk to the Appellant submits that the trial Court was wrong to have convicted the Appellant on a fundamentally defective Charge which is bad for duplicity or ambiguity or misjoinder. That counts one and two are duplicitous, mutually exclusive, contradictory and humanly impossible because it alleges in one breath that the Appellant ‘corruptly demanded’ the sum of $3,000,000.00 from PW5, Femi Otedola and in another breath alleges that he ‘corruptly agreed to accept’ the same amount from the same PW5. Further submits that the Respondent was unsure or indecisive as to which offence to charge the Appellant with and the Appellant suffered embarrassment, prejudice, deceit and miscarriage of justice as a result, which is inherent and embedded in the Charge Sheet. Cites TAFIDA V. FRN (2014) 5 NWLR (PT. 1399) 129, OKEKE V. THE STATE (1948) 12 WACA 363, GEORGE V. FRN (2014) 5 NWLR (PT. 1399) 1, UKET V. FRN (2008) ALL FWLR (PT. 411) 923, ONAKOYA V. FRN (2002) 11 (PT. 779) 595 and MUSTAPHA V. FRN (2017) LPELR – 43131 (CA).
The learned Silk further submits that the trial Court acted in excess of or without jurisdiction because the Appellant was tried and convicted on the repealed and non-existent legislation of the Corrupt Practices and other Related Offences Act, 2000, which had been legislatively supplanted by the Corrupt Practices and other Related Offences Act, 2003. That a trial conducted without jurisdiction, no matter how conducted is a nullity. Relies on the decisions in Suit No FHC/ABJ/CS/225/2003 between THE AGF V. THE SENATE OF THE FEDERAL REPUBLIC OF NIGERIA, RT. HON. ANYIM PIUS ANYIM PRESIDENT OF THE SENATE, THE HOUSE OF REPRESENTATIVES, ALHAJI UMAR GHALI NA’ ABBA, EYOROKOROMO V. THE STATE (1979) 6/9 SC 3, ADEOYE V. THE STATE (1999) 6 NWLR (PT. 605) 74, FRN V. IFEGWU (2003) 15 NWLR (PT. 842) 113. The learned Silk distinguished the decision of the Apex Court in NWANKWOALA V. FRN (2018) LPELR-43891 (SC) and the instant appeal in urging the Court to set aside the conviction arising from the Charge.
It is the submission of the learned senior Counsel to the Appellant that the instant Charge is a flagrant violation of Sections 20 and 32 of the Legislative Houses (Powers and Privileges) Act respectively because the Appellant who is a Legislator ought to be charged for agreeing to accept or accepting bribe under Section 20 of the said Act and not under the ICPC Act. Further submits that the Charge was not filed by the Attorney General of the Federation with the specific authorization of the President of the Senate or the Speaker of the House of Representatives as required by Section 32 of the said Act. Relies on MATARI V. DANGALADIMA (1993) 3 NWLR PT. 281 (266), CAC V. GOV. COUNCIL, ITF (2015) 1 NWLR (PT. 1439) 114 and ATTORNEY-GENERAL OF KADUNA STATE V. HASSAN (1985) 2 NWLR (PT. 8) 483 in urging the Court to declare the entire trial a nullity.
Responding, learned Counsel to the Respondent submits that the Charge is not bad for duplicity because each count does not contain more than one offence. That assuming without conceding that the Charge is bad for duplicity, the Appellant has failed to show how he was misled or suffered any miscarriage of justice which is the only ground his conviction can be set aside. Cites FRN V. MUSTAPHA (2017) LPELR, UBOGU V. STATE (2018) LPELR-46392 (CA), OKEKE V. COMMISSIONER OF POLICE (1948) 12 WACA 363 and YAHAYA V. STATE (2014) LPELR-24083 (CA).
Further contends that contrary to the submission of the Appellant, ICPC Act, 2000 is still fully in force and was not invalidated by the subsequent ICPC Act, 2003. That assuming without conceding the Appellant is right, the conviction of the Appellant will not be set aside where it is an offence known to law and where there is an existing law under which the Appellant should have been tried unless it is shown that the Appellant suffered a miscarriage of justice as a result. Relies on TEMPLE NWANKWOALA V. FRN (2018) LPELR-43891 (SC), IORHEM V. STATE (2017) LPELR-43631 (CA) and OKOH V. STATE (2013) LPELR-21009 (CA) in urging the Court to discountenance the issues raised by the Appellant.
The learned Counsel to the Respondent maintains that the trial Court is not bound by the Legislative Houses (Powers and Privileges) Act because it was enacted to guide the practice and procedure of the National Assembly and not to be applied by a Court of competent jurisdiction. That the Appellant cannot be tried under the said Act because it relates to Legislative actions committed within the House and the immunity provided by the said Act is for words spoken or acts done in the Legislative House not a shield for criminal acts committed against the law of the Federal Republic of Nigeria. Cites A.G OGUN STATE V. A.G FEDERATION (1982) LPELR-11 (SC) and LAWAN V. ZENON PETROLEUM & GAS LTD & ORS. (2014) LPELR-23206 (CA) and urges the Court to dismiss the contention of the Appellant.
In its Reply Brief, the Appellant submits that the miscarriage of justice is apparent being multiple punishment for a single course of criminal conduct and the cases cited by the Respondent are distinguishable from the instant case.
The Appellant urges the Court to reject the interpretation by the Respondent that Section 20 of the Legislatives Houses (Powers and Privileges) Act, 2004 relates to only words explicitly spoken or done in the legislative house and not a criminal act as same is not rooted in law. That the finding of the Court in LAWAN V. ZENON PETROLEUM & GAS LTD & ORS. (2014) LPELR-23206 (CA) is not applicable in the instant case.
Black’s Law Dictionary, 9th edition defines duplicity thus;
“1. Deceitfulness, double-dealing. 2. The charging of the same offence in more than one count of an indictment. 3. The pleading of two or more distinct grounds of complaint or defence for the same issue. In criminal procedure, this takes the form of joining two or more offences in the same count of an indictment. Also termed double pleading. Alternative pleading under Pleading, (2) double plea under plea (3) Cases: Federal Civil Procedure, Indictment and Information, pleading”. (See page 578).
Simply put, duplicity is the joining of two or more distinct offences in the same count of a Charge.
This is in tandem with Section 156 of the Criminal Procedure Act, 1945 which provides thus;
“For every distinct offence with which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in Sections 157 to 161 of this Act.” A charge is said to be bad for duplicity where two or more offence are concentrated or included in a Count making it unfair to the trial and defence of an Accused or Defendant in a criminal trial. However it must be shown that such duplicity is material and has misled the Defendant or that it has led to failure of justice. See OKEKE V. POLICE 12 WACA P. 363 and ONAKOYA V. FRN (2002) LPELR-2670 (SC). There are certain exceptions to the general role against duplicity stated in Section 156 (Supra), they are contained in Sections 157 and 158 of the same Criminal Procedure Act as follows;
“157(1). When a person is accused of more offences than one committed within the period of twelve months from the first to the last of such offences, whether in respect of the same person or thing or not, he may be charged with and tried at one trial for any number of them not exceeding three.
158. If in one series of acts or omissions so connected together as to form the same transaction or which form or are part of a series of offences of the same or a similar character, more offences than one are committed by the same person, charges for such offences, whether felonies, misdemeanors or simple offences, may be joined and the person accused tried therefor at one trial.”
The Charge against the Appellant as contained in pages 1315-1317 of the Records is as follows;
“COUNT ONE:
That you Hon. Farouk Lawan (M) while being a member of the House of Representatives and chairman of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime sometimes in April, 2012 or thereabout at Abuja within the Federal Capital Territory under the jurisdiction of this Honourable Court, did, while acting in the course of your official duty corruptly asked for the sum of $3,000,000 (Three Million US Dollars) for yourself from Mr. Femi Otedola. Chairman Zenon Petroleum and Gas Ltd on account of intention to afterwards show favour to the said Mr. Femi Otedola by removing the name of Zenon Petroleum and Gas Ltd from the Report of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime and you thereby committed an offence contrary to Section 8(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 8(1) of the same Act.
COUNT TWO:
That you Hon. Farouk Lawan (M) while being a member of the House of Representatives and chairman of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime sometimes in April, 2012 or thereabout at Abuja within the Federal Capital Territory under the jurisdiction of this Honourable Court; did, while acting in the course of your official duty corruptly agreed to accept the sum of $3,000,000 (Three Million US Dollars) for yourself from Mr. Femi Otedola, Chairman Zenon Petroleum and Gas Ltd as an inducement to remove the name of Zenon Petroleum and Gas Ltd from the Report of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime and you thereby committed an offence contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act 2000 and punishable under Section 17(1) of the same Act
COUNT THREE:
That you Hon. Farouk Lawan (M) while being a member of the House of Representatives and chairman of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime sometimes in April, 2012 or thereabout at Abuja within the Federal Capital Territory under the jurisdiction of this Honourable Court, did, while acting in the course of your official duty corruptly obtained the sum of $500,000 (Five Hundred Thousand US Dollars) for yourself from Mr. Femi Otedola, Chairman Zenon Petroleum and Gas Ltd as an inducement to remove the name of Zenon Petroleum and Gas Ltd from the Report of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime and you thereby committed an offence contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 17(1) of the same Act.” (Emphasis Supplied).
On the face of the Charge Sheet, count one is for the offence of corruptly asking for the sum of $3,000,000, count two is for the offence of corruptly agreeing to accept the sum of $3,000,000 and count three is for corruptly obtaining the sum of $500,000. These are three separate offences provided for in Sections 8(1)(a) and 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000. These offences were brought under three different Counts of the Charge and none of them is a repetition of the other.
For a Charge to be bad for duplicity, it must contain more than one offence in the same Count or a repetition of an offence already stated in another Count.
Upon a cursory look at the Charge which has been reproduced above, can it be rightly said that the Charge is bad for duplicity? The response is in the negative and this is because it is abundantly clear that each of the three separate offences are contained in three separate counts. Documents and Statutes that are clear and unambiguous must be given their literal meaning. Furthermore, in addition, the Appellant must show how the duplicity of the Charge misled him or caused him to suffer a miscarriage of Justice. The Courts have since moved away from the era of technical justice to an era of substantive justice. Reason being that the Court recognizes that we are human and therefore fallible and susceptible to slips and minor errors. Where such errors do not in any way infringe on the fundamental rights of the Accused Person as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), this Court will not interfere with the decision of the trial Court. I find the dictum of His Lordship, KALGO, J.S.C. in the case of ONAKOYA V. FRN (2002) LPELR-2670 (SC) very instructive on this issue. The appeal was against the decision of the Court of Appeal, Lagos Division which upheld the decision of the Failed Banks Tribunal, Lagos Zone V. The Accused at the Failed Banks Tribunal, Lagos Zone V, pleaded not guilty to charge of committing a felony by approving and granting credit facility of 14m to one Alhaji Ibrahim, a customer of the Maiduguri Branch of the Savannah Bank of Nigeria PLC without lawful authority and in violation of the lending rules and regulations in force at the time in Savannah Bank particularly Memorandum 119. The Conduct is also an Offence contrary to Section 19(1)(a) (b) & (c) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No.18 of 1994 as amended. In dismissing the appeal, the Apex Court while affirming the decision of this Court acknowledged that there was procedural irregularity but it did not lead to miscarriage of justice. The Apex Court held thus;
“Duplicity is a matter of procedure or form and not evidence. See R. v. Greenfield (1973.) 57 Cr. App, R. 849. It is covered by Section 156 of the Criminal Procedure Act which provides in part:
“For every distinct offence with which any person is accused there shall be a separate charge …”
It is therefore a matter of procedure and not law. This Court in the case of Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 at 717 had this to say:-
“As we have stated several times, the days when parties pick their way in this Court through naked technical rules of procedure, the breach of which does not occasion a miscarriage of justice are fast sinking into the limbo of forgotten things. The Court now takes the view that not every slip is fatal to the cause of justice. Judges are not omniscient robots, which never deviate from a programmed course. They sometimes slip. But only those slips that have been shown to have affected the decision appealed against will amount to a substantial misdirection which will result in the appeal being allowed. See on this Onajobi v. Olanipekun (1985) 11 SC (Pt. 11) 156 at 163; also Jude Ezeoke & Ors. v. Moses Nwagbo & Anor (1988) 1 NWLR (Pt.72) 616 at 626. “
Also, in the case of Obakpolor v. State (1991) 1 NWLR (Pt.165) 113 in an appeal against the conviction for murder, this Court dealt with the question of the failure of the magistrate who conducted the preliminary inquiry in the case and committed the appellant for trial to comply with Section 314(1) of the C.P.A., and held that even though there was procedural irregularity in not complying with the said Section, there was no miscarriage of justice and the appeal was dismissed. On page 129 of the report, Akpata, J.S.C who wrote the leading judgment said:- “That there was procedural irregularity is not in doubt. It is however an irregularity which has not led to a miscarriage of justice… it is the paramount duty of Courts to do justice and not cling to technicalities arising from statutory provisions or technicalities inherent in rules of Court. So long as the law or rule has been substantially complied with and the object of the provisions of the statute or rule is not defeated and failure to comply fully has not occasioned a miscarriage of justice; the proceedings will not be nullified.” (Emphasis Supplied).
In an attempt to showcase the miscarriage of justice suffered by the Appellant as a result of the defective Charge, the learned senior Counsel to the Appellant submits that the Appellant is being punished repeatedly for the same offence. This argument is not tenable in the instant appeal where the sentence of the Appellant is to run concurrently. The Appellant must satisfactorily establish that he was misled, embarrassed or prejudiced for the law against duplicity to avail him. A plethora of authorities abound to the effect that the question of duplicity is clearly an error in the process of the case. Such an error is immaterial, unless the accused has been in fact misled by such error or omission and occasioning a miscarriage of justice. See MOHAMMADU V. COP (1969) LPELR-25419 (SC), STATE V. GWONTO (1983) LPELR-3220 (SC), TAFIDA V. FRN (2013) LPELR-21859 (SC), JIBRIN V. STATE (2021) LPELR-56233 (SC). JOHN V. STATE (2019) LPELR-46936 (SC), OGBOMOR V. STATE (1985) LPELR-2286 (SC), IBRAHIM V. STATE (2017) LPELR-42261(SC) and MAKANJUOLA V. STATE (2021) LPELR-54998 (SC).
On the issue of the Appellant being charged and convicted under a repealed or non-existent Legislation, the law is unequivocal that no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission. See Section 166, Criminal Procedure Act. What is most important is whether the Accused Person is charged with an offence known to law. The law does not allow the Courts to render as incompetent a process filed in due process of law, simply because the wrong law is cited.
Section 36 of the Constitution requires an accused to be charged with an offence known to law. The Apex Court has given a judicial flesh to this provision in the case of TIMOTHY v. FRN (2013) 4 NWLR (Pt. 1344) 213. See also AKALA V. FRN (2014) LPELR-22930 (CA), EGUNJOBI V. FRN (2012) LPELR-15537 (SC), SELE V. STATE (1993) LPELR-3030 (SC) and YABUGBE V. C.O.P (1992) LPELR-3505 (SC).
The Appellant sought to distinguish between the decision in NWANKWOALA V. FRN (2018) LPELR-43891 (SC) where the Apex Court declared the Corrupt Practices and Other Related Offences Act, 2000 as the extant law and Suit No. FHC/ABJ/CS/225/2003 between AGF V. ALH. UMAR GHALI NA’ABBA where the Apex Court ordered a retrial of the suit challenging the Constitutionality of the Corrupt Practices and Other Offences Act, 2003.
It is noteworthy that the Appellant has acknowledged that since the Order for retrial by the Apex Court, the suit has not been re-heard or retried. I therefore agree with the Respondent that the Pronouncement of the Apex Court in NWANKWOALA V. FRN (SUPRA) is the binding law on which of the Corrupt Practices and Other Offences Act is valid and subsisting.
The Apex Court in NWANKWOALA V. FRN (SUPRA) declared and I crave indulgence to quote extensively thus;
“…I have read both views and relevant legislation on the matter. I am in complete agreement with the reasoning of both Courts. To my mind, the issue appears straightforward.
There is in existence the Corrupt Practices and Other Related Offences Act of 2000. In 2003 the National Assembly promulgated the Corrupt Practices and Other Related Offences Act of 2003. It has as its commencement date 18th May, 2003. In Section 55 supra the Corrupt Practices and Other Related Offences Act, 2000 was repealed. See Laws of the Federation Vol. 3 Chapter C31 – 1. Four days after 18th May 2003, that is on 21st May, 2003 a Federal High Court Abuja in Suit No. FHC/ABJ/CS/93/2003. Hon. Bala Kaoje & 5 Ors. v. The National Assembly of the Federal Republic of Nigeria & 13 Ors, declared the ICPC Act of 2003 passed by the National Assembly in violation of a subsisting Court order null, void and of no effect, and revalidated the ICPC Act of 2000.
In the absence of an appeal from the decision of the Federal High Court that ruling remains inviolate until set aside. The law in force is the Corrupt Practices and Other Related Offences Act 2000 and not the Corrupt Practices and Other Related Offences Act 2003. See FRN v. Wabara (2013) 5 NWLR (Pt.1347) p.331; AG Ondo v. AG Federation & 35 Ors (2002) 9 NWLR (Pt.772) p.222; Egharevba v. FRN (2016) 2 SC (Pt.iii) p.166.
I must observe that since 2003, in the compilation of laws of the Federation the Corrupt Practices and Other Offences Act 2003 could be found. See Laws of the Federation, vol.3 Chapter C31 -1 (updated to the 31st Day of December, 2010). A law attains legitimacy and is valid only after it passes through the well laid down procedure. When a law is declared null and void by a Court of law, as is the case with the 2003 statute, it remains so in the absence of a contrary declaration from the Court. When legislation that should not be in the statute books finds its way there, it can only mean that those that did the compilation were not aware of the Court order.
The Corrupt Practices and Other Related Offences Act, 2000 was very much in force when the offences for which the appellant was charged and arraigned were committed.
We are satisfied that the Order of a Federal High Court in Hon. Bala Kaoje & 5 Ors v. The National Assembly of the Federal Republic of Nigeria & 13 Ors. suit No.: FHC/ABJ/CS/93/2003 which declared the 2003 statute null and void revalidated the 2000 statute.
Consequently, the Corrupt Practices and Other Related Offences Act 2000 is valid. The appellant was tried and convicted on a valid law.” Per RHODES-VIVOUR, J.S.C. (Emphasis supplied).
The above decision of the Apex Court laid to rest any lingering doubt about the status of Corrupt Practices and Other Related Offences Act of 2003. It is not the relevant law. The 2003 ICPC Act had been declared null and void. The publication of an Act in the Statute Book does not confer legitimacy on the Act especially when there is a judicial pronouncement annulling such Legislation.
The Appellant has been charged under the extant and applicable law for the offences for which he was charged. The offences alleged against the Appellant were committed in 2012 and he was charged under an existing law prescribing punishment for the offences charged that is Corrupt Practices and Other Related Offences Act, 2000. The argument of learned Senior Counsel trying to sway this Court from the settled position of the Apex Court in the land is hereby rejected in its entirety. This Court is bound by this decision, the Corrupt Practices and Other Related Offences Act, 2000 is valid and subsisting. I shall not further belabor the matter.
The learned Senior Counsel to the Appellant has argued that the Appellant being a Legislator should have been charged under Section 20 of the Legislative Houses (Powers and Privileges) Act. I have gone through the length and breadth of the said Act and I must state categorically that I did not see or come across any rule in the Act that precludes Legislators from being tried under any other law, no rule provides that Legislators must be tried under the Legislative Houses (Powers and Privileges) Act. Section 3 of the Legislative Houses (Powers and Privileges) Act, 2004 provides that;
“No civil or criminal proceedings may be instituted against members of the Legislative House
(a) In respect of words spoken before that House or a committee thereof; or
(b) In respect of words written in a report to that House or to any committee thereof or in any petition, bill, motion or questions brought or introduced by him therein”. (Emphasis Supplied).
Where the language of a statute is clear and explicit, the Court is to give effect to it. It is clear and explicit from the above provision that immunity only attaches to a member of a Legislative House in respect of words spoken before the House or a committee thereof or in respect to the House or committee thereof or in any petition, bill, resolution, motion or question brought or introduced by him in the House or its committee. See LAWAN V. ZENON PETROLEUM & GAS LTD & ORS. (2014) LPELR-23206 (CA). The Charge against the Appellant cannot be categorized under Section 3 of the Legislative Houses (Powers and Privileges) Act not even by a far and long stretch.
The Appellant has placed reliance on Section 32 of the Legislative Houses (Powers and Privileges) Act, which provides that;
“No prosecution shall be instituted for an offence under this Act except by the Attorney-General of the Federation upon information given to him in writing by the President of the Senate or Speaker of the House of Representatives, or by the Attorney-General of a State upon information given to such officer by the Speaker of the Legislative House of a State.” (Emphasis Supplied).
Again, where the language of a statute is clear and explicit, the Court is to give effect to it. It is clear and explicit that the above cited Section 32 relates to where a Legislator is charged for an offence under the Legislative Houses (Powers and Privileges) Act. If it was the intention of the Act to preclude Legislators from being tried under other Laws, the Act would have expressly stated so.
On the whole, I find that the Charge against the Appellant is not bad for duplicity and the Appellant was charged under the extant and correct law. However, assuming these findings are wrong, the Charge against the Appellant cannot be set aside because the Appellant has failed to show this Court how he was misled, embarrassed or prejudiced in the trial due to the alleged defective Charge.
I resolve Issues 1, 2 and 4 in favour of the Respondent.
ISSUES 3, 5 AND 6
It is the submission of the Appellant’s learned Senior Counsel that the Appellant is not and cannot be classified as a ‘Public Officer’ and the trial Court failed to take into cognizance jurisprudence from Nigerian superior appellate Courts to the effect that a Legislator in either the Senate, House or Representatives or a State House of Assembly is not a ‘Public Officer.’ That the cases relied upon by the trial Court in concluding that the Appellant is a ‘Public Officer’ are decisions of this Court which dealt with the meaning of ‘Public Officer’ squarely and exclusively within the ambit of the Public Officers Protection Act and not relevant to the conclusion reached by the trial Court. Further submits that one of the key ingredients common to each of the 3-counts Charge upon which the Appellant stood trial for is that the Appellant must be shown to be a ‘Public Officer’ within the context of Section 2 of the ICPC Act, 2000 and Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), failure of which renders the trial a nullity. That the Appellant can be treated as a Public Officer solely by the Code of Conduct Tribunal by virtue of the Code of Conduct. Cites Paragraph 19, Parts 1 and 2, 5th Schedule of the 1999 Constitution (as amended), THE GOVERNOR OF PLATEAU STATE & ORS. V. HON. HITLER DADI & ORS (SUPRA), NOLAN V. FRN (2020) LPELR-51424 (CA), COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS & ANOR. V. ONAKADE (2016) LPELR-41133 (CA), SARAKI V. FRN (2016) LPELR-40013 (SC) and AHMED V. AHMED (2013) LPELR-21143 (SC) in urging the Court to quash the decision of the trial Court and hold that Section 2 of the ICPC Act does not apply to the Appellant.
Submits that the Respondent failed woefully to prove any of the ingredients of the 3-count Charge brought against the Appellant and the trial Court was by extension in grave error when the Court held that he was guilty as charged. That there is no evidence that the Appellant was ever the Chairman of the said Committee, it is common knowledge that the Appellant is not empowered to carry out penal sanctions against PW5 and his company and that the Appellant being a Lawmaker is entitled to lobbying and being lobbied to influence legislative matters, hence the money given to the Appellant cannot be said to be “corruptly received.” Cites GEORGE V. FRN (2014) 5 NWLR (PT. 1399) 1 and RASAKI V. STATE (2011) 16 NWLR (PT. 1273) 251.
That Respondent failed to produce the records of the conversations between the Appellant and PW5 to prove their allegations and that the entire case of the Respondent is riddled with contradictions, inconsistencies and inadequacies especially regarding the sum received that the only logical and legal conclusion that the trial Court could do was make an order discharging and acquitting the Appellant. Cites IJEOMA V. STATE (1990) 6 NWLR (PT. 158) 567, ONUCHUKWU V. THE STATE (1998) 4 SC 49 and SHOLA V. THE STATE (2020) 8 NWLR (PT. 1727) 530.
Responding, the learned Counsel to the Respondent states that the Appellant who was elected to represent the Bagwai/Shanono Federal Constituency of Kano State in the House of Representatives engaged in public service and is a Public Officer as categorized under Section 2 of the Corrupt Practices Act. That the Appellant ticked off all the characteristics of being a public officer which are;
i. The Appellant holds a public position.
ii. The Appellant’s remuneration are from public revenues and the national treasury pool.
iii. The Appellant has a fixed term of office and it has some continuity; standard 4 years and renewable for another 4 years.
Relies on Section 18 (1) of Interpretation Act, Section 3, Part 1 of the 5th Schedule of the 1999 Constitution (as amended), Section 318 (1) of the 1999 Constitution (as amended) and ABDULRAUF ABDULKADIR MODIBBO V. MUSTAPHA USMAN & 2 ORS. (2020) 3 NWLR (PT. 1712) 470.
On the issue of establishing the ingredients of the offence, the learned Counsel to the Respondent responds that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt and the Respondent by overwhelming circumstantial evidence has discharged the burden of proving the case beyond reasonable doubt. Cites ANI VS. THE STATE (2009) 6 NWLR (PT. 1168) 443, BILLE V. STATE (2016) LPELR-40832 (SC), EMEKA VS. THE STATE (2001) 14 NWLR (PT. 736) 666 and IGBIKIS V. STATE (2017) LPELR-41667 (SC).
Further responds that the law is settled that where there are mere discrepancies in the narration of events by the Prosecution witnesses as in the instant case, an acquittal will not avail the Accused Person because these mere discrepancies are expected as being natural. Cites OTTI V. THE STATE (1991) 8 NWLR (PT. 207) 103, THEOPHILUS V. STATE (1996) 1 NWLR (PT. 423) 139, AKPA V. STATE (2007) 2 NWLR (PT. 1019) 500 and ADONIKE V. STATE (SC.168/2013) (2015) NGSC 2. The learned Counsel urges the Court to affirm the judgment of the trial Court and dismiss the appeal for lacking in merit.
In its Reply Brief, the learned Senior Counsel to the Appellant states that the decision in ABDULRAUF ABDULKADIR MODIBBO V. MUSTAPHA USMAN & 2 ORS. (SUPRA) being a civil case is not applicable in this case and it was decided without any reference to the ICPC Act in which the Appellant was charged.
In its Amended Notice of Appeal, Grounds 3 and 4, the Appellant challenged the specific finding of the trial Court that the Appellant is a Public Officer and therefrom formulated this issue three for determination. On the question of whether or not the Appellant is a Public Officer, the finding of the trial Court is reproduced anon;
“Placing reliance on the above authorities, I therefore discountenance the argument of the learned Senior Advocate for the defence that the Defendant was a mere political office holder.
I agree completely with the prosecution that the Defendant was a public officer as contemplated by Section 2 of the ICPC Act and was carrying out his statutory duties as a public officer.
I have evaluated the evidence of the contending parties and the submission of the legal luminaries. Placing reliance on the case of Engr. GFC Ezeani V. Nigeria Railway Corporation (Supra), I hold that the Defendant was a public officer within the definition of the law.”
(Emphasis Supplied. See pages 1372 – 1373 of the Records).
It is expedient to reproduce and analyze the laws and authorities relied upon by the Parties and the trial Court in the determination of this issue.
Section 318 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) stipulates thus;
“Public service of the Federation” means the service of the Federation in any capacity in respect of the Government of the Federation and includes service as: (a) Clerk or other staff of the National Assembly or of each House of the National Assembly; (b) member of staff of the Supreme Court, the Court of Appeal, the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Customary Court of Appeal of the Federal Capital Territory, Abuja or other Courts established for the Federation by this Constitution and by an Act of National Assembly; (c) member or staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly; (d) staff of any area council; (e) staff of any statutory corporation established by an Act of the National Assembly; (f) staff of any educational institution established or financed principally by a Government of the Federation; (g) staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interest; and (h) members or officers of the armed forces of the Federation or the Nigeria Police Force or other government security agencies established by law. “(Emphasis supplied).
From the foregoing, it is true that Section 318 (1) of the 1999 Constitution (as amended) does not define the term “Public Officer” but defined the term public service. Nonetheless, recourse can be made to other parts of the Constitution, other Statutes and case law where the definition of the “Public Officer” was provided.
The Interpretation Act Cap 149 LFN, 1990 defines a Public Officer thus:
“A Public Office holder is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public.” (Emphasis Supplied).
Section 2 of the Corrupt Practices and Other Related Offences Act, 2000 defines Public Officer thus;
“Public Officer means 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 Magistrates, Area or Customary Courts or Tribunals. “(Emphasis Supplied).
In the interpretation or construction of the provisions of the Constitution or a Statute, the Court or Tribunal must adhere to an interpretation that will bring out plainly the real intention of the framers of the Constitution or the law maker in order to meet the obvious end of the Constitution or the law the Court is called upon to interpret. Also, the Court must desist from construing the relevant provisions of the Constitution or the law in a manner that will do violence to the ultimate design or purpose of the law or the Constitution. The provisions of the Constitution and a Statute must be considered and construed as a whole. See OCHOLI ENOJO JAMES, SAN V. INEC & ORS. (2015) 12 NWLR (PT. 1474) 538. PRINCE MUSAFAU OMOWALE ADEMOLA KASSIM V. PRINCE ADEBOLA ADESEMOWO & ORS. (2021) 18 NWLR (PT. 1807) 67 and MR SIMACH COLLIN V. DHL INTERNATIONAL NIGERIA LTD. (2022) 2 NWLR (PT. 1813) 87.
The trial Court in finding that the Appellant is a Public Officer relied on the above cited laws and the decision of this Court in the case of EZEANI V. NRC (2013) LPELR – 22065 (CA) anon;
“The Public Officers (Protection) Act is definitely in this case because the Employees of the Nigerian Railway Corporation are “public Officers”.
It is true that the term has not been defined under the Public Officers’ Protection Act. But Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 defines “Public Service of the Federation ” and “Public Service of the State”.
By virtue of Part 1 of the Fifth Schedule – Paragraph 19 of the Constitution of the Federal Republic of Nigeria 1999, a Public Officer is defined as a person holding any office as specified in Part II of that Schedule. It refers to “other persons in the public service. “Per PEMU, JCA.
Similarly, the trial Court relied on this Court’s decision in NAHUCHE V. NAHUCHE & ANOR (2016) LPELR-41809(CA) thus;
“In the case of CHIEF JOHN EZE v. DR. COSMAS I. OKECHUKWU (1998) (Pt. 548) 43 AT 73 the Court was of the view that a “Public Officer” is a holder of a public office in the public sector of the economy as distinct and separate from the private sector that he is entitled to some remuneration from the public revenue or treasury. In addition that he has some authority conferred on him by law, with a fixed tenure of office that must have some permanency or continuity; above all else that a public officer has the power to exercise some amount of sovereign authority or function of government.” (Emphasis Supplied) Per OHO, JCA.
The Appellant in this appeal relied on the decisions of this Court in the case of COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS & ANOR VS. ONAKADE (2016) LPELR 41133 (CA) and NOLAN V. FRN (2020) LPELR-51424 (CA) amongst others in submitting that the Appellant is not a Public Officer.
The Respondent cited the decision of the Apex Court in the case of MODIBBO V. USMAN (2020) 3 NWLR (PT. 1712) 470 in submitting to the contrary that the Appellant is a Public Officer. The relevant portion of the decision goes thus;
“…It is without dispute that the appellant has been a beneficiary of the Federal Government NYSC Allowance or salary as at the time he contested. Partisan political involvement and participation even to the level of occupying a political seat is forbidden and prohibited by the law because every political position is a position of utmost trust and confidence and the sole business and allegiance of a politician is to the people who voted him into power and whom he represents and that does not admit of jack of all trades but master of none. The politician is expected to concentrate fully in his political activities and functions and in this case, a very crucial function of law making. It is in this contemplation that many other services to the Federal Government do not admit or allow participation into politics or other engagements during the pendency of that service. To be a Corps member and a law maker at the same time cannot be allowed. Thus, the Constitution came to give a guideline as follows in Section 66 (1) (f) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended):
“No person shall be qualified for election to the Senate or the House of Representatives if he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment thirty days before the date of election.”
…In Chief John Eze v. Dr. Cosmos I. Okechukwu (1998) 5 NWLR (Pt. 548) 43 at 73, the Court opined that,
“A public officer, in my view is a holder of a public office. He is in the public sector of the economy as distinct and separate from the private sector. He is entitled to some renumeration from the public revenue or treasury. He has some authority conferred on him by law. He also has permanency or continuity. Above all, a public officer has the power to exercise some amount of sovereign authority or function of government. The sovereign authority may be great or enormous. It may be little or small. There should be that element of sovereign authority. So too the exercise of government function in lieu of sovereign authority. There should be that element of government function. All the above characteristics must be present to vest in a person the status of a Public Officer.” (Emphasis Supplied) Per ABBA AJI, J.S.C.
By virtue of the doctrine of stare decisis and judicial precedent, this Court is bound by the decision of the Apex Court Supra.
Legislative Office Holders fit in the characteristics of a Public Officer listed above. Furthermore, by virtue of Section 66 (1) (f) of the 1999 Constitution, any person that intends to run for a seat in the Senate or the House of Representatives must first resign, withdraw or retire from public service because it is considered as receiving double salary from the Public Treasury.
In the case of OBA J. A. AWOLOLA VS THE GOVERNOR OF EKITI STATE & ORS (2019) 6 NWLR (PART 1668) 247, the Apex Court held thus;
“The appellant has failed to appeal against that portion of that judgment. The law is settled that a finding of a Court against which there is no appeal is treated as admitted. See Odedo v. INEC (2008) 17 NWLR (Pt. 1117) 554 at B-C; Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53 at 83 paras. E-F; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt 110) 417; Okuoja v. Ishola (1982) 7 SC 314; Awote v. Owodunni (No. 1) (1986) 5 NWLR (Pt. 46) 941; Atoyebi v. Gov., Oyo State (1994) 5 NWLR (Pt. 344) 290. Even if there is an appeal against the decision that the respondents are public officers, there would have been no merit in such appeal. The Black’s Law Dictionary, 9th Edition at page 1351 defines public office as a position whose occupant has legal authority to exercise a government sovereign power for a fixed period. An officer is defined by the same dictionary 38 at page 1193 as follows:- “A person who holds an office of trust, authority or command. In public affairs, the term refers especially to a person holding public office under a national, state, or local government and authorized by that government to exercise some specific function.” Per GALUMJE, J.S.C. (Emphasis supplied).
There is no doubt that the National Assembly of Nigeria which consists of the Senate and House of Representatives is an arm of Government of the Federation and all members of the National Assembly like the Executive and the Judicial Arm of Government are all engaged in the public service of the Federation. The institution to which the Appellant was engaged as a Legislator is the National Assembly an Arm of the Government of Nigeria. He is therefore a Public Officer notwithstanding that he is Legislator. It cannot be the intention of the lawmaker to exclude Legislators from the ambit of ICPC Act as they too are involved in governance as Members of the National Assembly whose duty is to make laws and perform oversight functions over Government Affairs and Department pursuant to Sections 4, 88 and 89 of the 1999 Constitution (as amended).
Now that all the issues on technicalities in this appeal have been determined, it is time to deal with the germane issue in this appeal which is whether the Respondent proved its case against the Appellant beyond reasonable doubt.
For the Prosecution to succeed in its case and to ground a conviction against an Accused Person, it must prove its case beyond reasonable doubt. See Section 135 of the Evidence Act, 2011, OGUNDIYAN V. THE STATE (1991) LPELR-2333 (SC). NKWUDA EDAMINE V. THE STATE (1996) LPELR-1002 (SC), MORUFU BOLANLE V. THE STATE (2009) LPELR-788 (SC) and THE STATE V. FEMI OLADOTUN (2011) LPELR-3226 (SC). With the standard of proof pegged beyond reasonable doubt, where any doubt exists it must be resolved in favour of the Accused Person. This is because it is not required of the Accused Person to prove his innocence but it is required of the Prosecution to prove the guilt of the Accused Person in order to secure a conviction. This is in consonance with the provision of Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) where the Accused Person is considered innocent until proven guilty. Where there is any doubt at all, this doubt must be resolved in favour of the Accused Person. This is the decision of the Apex Court in a plethora of cases. See AFOLALU V. THE STATE (2010) 16 NWLR (Pt. 1220) 584, OKPUTUOBIODE & ORS. V. THE STATE (1970) LPELR-2524 (SC), JOHN OKONJI V. THE STATE (1987) LPELR-2479 (SC), THE STATE V. IDAPU EMINE & ORS. (1992) LPELR-3218 (SC).
To prove the Charge against a Defendant, the Prosecution can rely on any or all of the following methods viz:-
(a) Evidence of eye witness or witnesses; or
(b) Confessional statement of the accused/Defendant; or
(c) Through circumstantial evidence. See SHUAIBU ABDU V. THE STATE (2017) 7 NWLR (PT. 1564) 171. AKEEM AFOLABI V. THE STATE (2022) 2 NWLR (PT. 1814) 201, UDO V. STATE (2016) LPELR-40721 (SC), (2016) 12 NWLR (PT. 1525) 1. ABOKOKUYANRO V. STATE (2016) LPELR–40107(SC), (2016) 9 NWLR (PT. 1518) 520, DANBABA V. STATE (2018) LPELR-43841 (SC), (2018) 11 NWLR (PT. 1631) 426 and ABDU V. STATE (2016) LPELR-41461 (SC), (2017) 7 NWLR (PT. 1564) 171.
It is pertinent to state the ingredients of the offence of corruptly asking for, agreeing to accept and accepting gratification which the Prosecution is expected to prove beyond reasonable doubt against the Appellant as Accused Person at the trial. In the case of TEMPLE NWANKWOALA V. FRN (SUPRA), the Apex Court enumerated the ingredients for the offence under Sections 8(1)(a), 17(1) and 17(1)(a) of the Corrupt Practices and Other Related Offences Act, thus;
“…To succeed under count 1 and 3, the prosecution must prove the following beyond reasonable doubt. (a) That the accused person is a public officer. (b) That the accused person received or obtains any property or benefit of any kinds for himself or for any other person for anything already done or omitted to be done or for any favour or disfavor already shown to any person by himself in the discharge of his official duties, or in relation to any matter connected with the functions, affairs or business of a government department or corporate body or other organization or institution in which he is serving as an official. (c) That he asked for the benefits in the course of his official duties. (d) That the accused person failed to report the offer of gratification to any officer of the Independent Corrupt Practices Commission (ICPC).” Per RHODES-VIVOUR, J.S.C. (Emphasis Supplied).
By the amended charge contained on page 382 of the records, the Appellant was charged in Count 1 for corruptly asking for the sum of $3,000,000 for himself from Mr. Femi Otedola on account of intention to afterwards show favour to the said Mr. Femi Otedola by removing the name of Zenon Petroleum and Gas Ltd from the Report of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime in the course of his official duty as the Chairman of the House of Representatives Ad-Hoc Committee on the Monitoring Committee on Fuel Subsidy sometimes in April 2012. Also, the charge against the Appellant is that while acting in the course of his official duty, did corruptly agree to accept the sum of $3,000,000 (Three Million US Dollars) an inducement to remove Mr. Femi Otedola’s company from the list of companies indicted by the Committee charged by the Appellant in respect of fuel subsidy regime. The persons that gave evidence in respect of the said dollars are PW2 and PW5 (the nominal complainant). PW2 as at the time he testified was a Commissioner of Police and the Investigation Police Officer in the case against the Appellant. He testified that PW5 had informed him that the Appellant on or about 19th May, 2012 called him (PW5) on phone that his two companies Zenon Oil and A. P. Petroleum have been indicted by the Appellant’s Committee and that the Appellant demanded the sum of $3,000,000 from Mr. Femi Otedola to enable him remove the name of Zenon Oil and A.P Petroleum from the list of indicted companies. That PW5 also wrote to DSS Director and PW5 was asked to play along with the Appellant. See pages 975-992 of the Records.
Under cross-examination, PW2 remained evasive throughout pertaining to the issue of telephone allegedly made by the Appellant to Mr. Femi Otedola demanding $3,000,000. The call logs of the said telephone numbers of and the conversation between the Appellant were not produced. PW2 and his team did not also find it necessary to ask for the telephone of PW5 (nominal complainant) and his call logs from the service provider to establish that the Appellant actually called the PW5 demanding for the sum of $3,000,000 to enable him remove the names of PW5’s Companies from the list of companies indicted in respect of House of Representatives probe concerning fuel subsidy regime. The Prosecution’s energy and investigation as could be seen in the evidence of PW2 were concentrated on the receipt of $500,000. PW2 categorically stated on, in answer to whether the case against the Appellant was properly investigated thus;
“This matter as it relates to demanding and receiving the sum of $500,000 Dollars to the best of my knowledge was properly investigated and was caught on video.” (See page 1015 of the Records)
There is no scintilla of evidence from the only Investigating Police (PW2) called by the Respondent establishing or proving that the Appellant in the course of his official duty corruptly asked for the sum of $3,000,000 from PW5. There is also no evidence from any of the five witnesses called by the Respondent establishing beyond doubt that the Appellant ‘corruptly agreed to accept the sum of $3,000,000 from Mr. Femi Otedola (PW5). Even though the PW2 earlier testified that the alleged $3,000,000 was to remove two companies namely Zenon Oil and A.P Petroleum, PW2 admitted that he was aware AP Petroleum was not cleared by the House of Representatives (See page 1054 of the Records).
Now, coming to the evidence of PW5 with respect to the alleged demand by Appellant for the sum of $3,000,000 for which the Appellant was charged in Counts 1 and 2, PW5 said he had known the Appellant for six years and as the Chairman of Committee of House of Representatives in Investigation on the then fuel subsidy scam. He stated that A.P Petroleum Plc and Zenon Petroleum are his companies. (See page 1159 of the Records).
PW5 further stated that Appellant called him after their report has been laid before the House of Representatives that PW5 should make available the $3,000,000. That PW5 later on 24/4/2012, handed over the sum of $500,000 given to him by DSS to the Appellant between 12 midnight and 1 am. PW5 said that after his company’s name was removed from list of indicted companies, the Defendant called him demanding for the balance of $2.500,000 and that he told him the balance was being arranged and would be brought to Abuja. (See page 1159-1167 of the Records).
There is no convincing evidence to establish Count 1 of the Charge from the witnesses called by the Respondent.
The import of Count 2 is that the Appellant was offered $3,000,000 and he corruptly agreed to accept same.
The evidence of PW5 to the effect that he did not offer $3,000,000 to the Appellant on its own clearly disproves the allegation contained in Count 2 of the Charge. Specifically under Examination-in-Chief, PW5 stated;
“Prosecution: He said that you were the one who offered to pay $3 million so that your company’s name will be removed from the indicted list. PW5: I did not offer him $3 million for the fact that I was one of the biggest players in the business and reported the matter when I discovered the scam and he did mention to me that several companies that got involved with the scam got paying. I reported to DSS.”
The evidence of PW5 is that while he was in London, the Appellant called him demanding for $3,000,000. The Appellant gave to the Investigating Police Officer, PW2 all the telephone numbers by which PW5 and he were allegedly calling each other. The numbers are even contained in the statement of the Appellant tendered by PW2, yet the Respondent did not find it necessary to investigate the phone call to confirm the authenticity of PW5’s allegation that Appellant sought for $3,000,000 on phone calls he made to him while in London and while in Lagos. There is a big lacuna in the Respondent’s case in respect of all the allegations contained in Counts 1 and 2 of Charge which ought to be resolved in favour of the Appellant. I agree with the learned Senior Counsel to the Appellant that Counts 1 and 2 of the Charge against the Appellant were not proved beyond reasonable doubt because the ingredients of the offence and the particulars were neither proved nor established. There is no compelling evidence against the Appellant in respect of the allegations contained in Counts 1 and 2 of the Charge to warrant his conviction and sentence.
Now coming to Count 3 of the Charge which accused the Appellant of corruptly obtaining $500,000 (Five Hundred Thousand US Dollars) from Mr. Femi Otedola, Chairman Zenon Petroleum and Gas Ltd as an inducement to remove the name of the said company from list of indicted companies on oil subsidy scam in the course of Appellant’s official duty’, the Respondent called PW1, PW2, PW3, PW4 and PW5. PW1 gave evidence of how PW5 gave him $100,000 dollars which he handed over to the Appellant. PW5 also gave evidence of how he gave $250,000 to the Appellant on two occasions for the corrupt venture. The evidence of PW2 established that the Appellant collected the said $500,000 and the Appellant in furtherance of the inducement ensured that the name of Zenon Petroleum and Gas Ltd was removed from the Report of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime. The Respondent actually proved the offence for which the Appellant was charged in Count 3 of the Charge beyond reasonable doubt, thereby shifting evidential onus on the Appellant to prove reasonable doubt in accordance with Section 135(3) of the Evidence Act which provides thus:
“135(3) If the prosecution proves the commission of a crime beyond reasonable doubt the burden of proving reasonable doubt is shifted on to the defendant.”
The Appellant rather than give evidence exculpating himself from the shackles of Count 3 of the Charge against him, admitted in writing that he did not report any attempt to bribe him or his Committee to the Police or any of the Security Agencies. By Exhibit PW1C, he gave undertaking to refund the sum of $600,000 dollars received from PW5. He made a statement against PW4 to the effect that he gave the money to PW4, JAGABA ADAMS JAGABA to keep so that he could later collect same and make a formal report to Security Agents. PW4 made a statement completely denying what the Appellant said. PW4 stated he was not a Member of Appellant’s Committee and he did not receive nor collect any money from the Appellant. The PW2 found out that Appellant lied when he said he gave the money ($500,000) to PW4 with a memo. There was no such memo and no money was given to PW4. The Appellant did not refund the money according to the unchallenged evidence of PW2 in respect of the sum of $500,000 collected by the Appellant from PW5.
The Appellant contends that the testimony of the witnesses for the Respondent are wrought with inconsistencies and the trial Court ought not to accord any probative value to their evidence.
It is true that it is not every inconsistency in testimony that is fatal to the case of the Prosecution. There exists a long list of judicial authorities to the effect that it is not every discrepancy that would be fatal to the case of the Prosecution or be sufficient enough to raise doubts which must be resolved in favour of the Accused Person. I call in aid the decision of the Apex Court in DIBIE V. STATE (2007) LPELR – 941 (SC) thus;
“It is necessary to say that for a contradiction to be regarded as material, it must go to the root of the charge before the Court. It must be one that touches an important element of what the prosecution needs to prove in the case. Contradictions that are outside the aforementioned class are usually expected in an unconnected evidence in every trial since human memories do not have equal capacities of storing and retrieving events that happened. There is therefore bound to be minor discrepancies in an account of the same event in the evidence of same event given by different eye-witnesses. Such could only not exist where such witnesses are schooled as to what to say. The alleged discrepancies in the instant case are immaterial and do not and could not impeach the verdict of the trial Tribunal.” Per AKINTAN, J.S.C. (Emphasis Supplied). See also the decision in the unreported case of MUHAMMAD SANI AUDU V. THE STATE. APPEAL NO: CA/A/428C/2018 delivered per DONGBAN-MENSEM, JCA (AHTW) on 21/05/2020 at the Abuja Division of this Court.
I agree with the finding of the trial Court on the inconsistencies in the testimonies of PW1 and PW5 that these inconsistencies do not touch on the heart and soul of the matter. The inconsistency in the testimony of PW1 is irrelevant to the extent that the case against the Appellant is not on the sum given to PW1 (whether $100 or $120), the case is for the sum of $500,000. Hence, the issue of the amount given to PW1 is not the contention in this appeal.
Furthermore, the inconsistency in the testimony of PW5 as to how much the PW5 gave to the Appellant at each visit is also irrelevant. This is because it has already been established and even acknowledged by the Appellant himself that he received $500,000 from PW5. Whether this sum was given in two tranches of $250,000 each is completely irrelevant. These inconsistencies are not in any way fatal to the case of the Respondent.
More importantly, the admission by the Appellant that he received the $500,000 in two tranches is sufficient enough to establish the case against him as contained in Count 3 of the Charge.
Black’s Law Dictionary, 6th Edition, 1990, page 47 defines an admission thus;
“A concession or voluntary acknowledgment made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action.”
An admission by a party is the best form of evidence, this is because the opposing party need not prove the admitted facts. The position of the law is that facts admitted require no further evidential proof. Thus, a Court is entitled to give judgment based on an admission by a party if the admission is relevant to the facts in issue. I am fortified by the decision of the Apex Court in the case OFFOR & ANOR. V. STATE (2012) LPELR-19658 (SC) where the Appellants pleaded guilty to the offence of Armed Robbery. The Appellants were found guilty and convicted based on their guilty plea and acknowledgment of the facts as narrated by the Prosecution. Dismissing the appeal for lack of merits, the Apex Court held thus;
“From the entire trial and procedure of the proceedings conducted at the trial Court and which was approved by the lower Court, it is apparent that the nature of such is governed by the principle of admissibility. In other words, with the appellants having pleaded guilty, they are in law deemed to have admitted the offences with which they have been charged. The law is well settled that facts admitted need no further proof. The offences for which appellants were charged are not punishable with death.
The phrase exempting admission of death sentence as provided under Section 187(2) of the Criminal Procedure Code is therefore not applicable. Earlier in the course of this judgment. I have also held that the procedure adopted by trial Court falls within the provision of Section 187(1) and (2) of Criminal Procedure Code as rightly arrived at by the lower Court in affirming the conclusion reached by the learned trial Judge. The appellants unequivocally and unambiguously admitted committing the offences for which they were charged, hence at that stage the calling of evidence to establish the offence became unnecessary. The appellants have confirmed the obvious by their pleas of guilty or admission.
The leading authority of the case in Nwachukwu v State (supra) is again in the affirmative at page 69 as follows:- “In other words, the law is clear that a free and voluntary confession of guilt, whether judicial or extra judicial, if it is direct and positive and clearly established is sufficient proof of guilt and it is enough to sustain a conviction so long as the Court is satisfied with the truth of the confession.”
In the circumstances, I hold that the appellants’ Counsel are hinging their submissions on technicalities which the law does not recognize as a replacement of substantial justice. The justice of the case in this appeal had been invoked by the lower Court in affirming the conviction by the trial Court. The appellants’ Counsel have totally misapprehend the interpretation of the two Sections 161(3) and 187(1) and (2) of the Criminal Procedure Code. Their submission is only a ploy and an afterthought.” Per OGUNBIYI, J.S.C. (Emphasis supplied). See also AJIBADE V. STATE (2012) LPELR-15531(SC), NIGERIAN ADVERTISING SERVICES LTD ANOR V. UBA PLC & ANOR. (2005) LPELR-2009(SC), BAJODEN V. IROMWANIMU (1995) 7 NWLR (PT. 410) 655. OBMIAMI BRICK & STONE NIG. LTD. V. A.C.B LTD. (1992) 3 NWLR (PT. 229) 260, and OLAGUNYI V. OYENIRAN (1996) 6 NWLR (PT. 453)
The admission of the Appellant to the effect that he collected $500,000 is a direct admission and acknowledgment of all the ingredients of the offence and particulars contained in count 3 of the Charge. No corroboration is needed.
The Appellant admitted in both his extra-judicial statement (Exhibit G1-G3) and testimony in Court (Pages 1153 & 1155 of the Records) that he accepted the $500,000 from PW5 to serve as evidence that PW5 tried to bribe the Appellant. The fact that Appellant collected $500,000 from PW5 is corroborated by the testimonies of the Prosecution Witnesses and the video evidence (Exhibit PW3B). However, the submission by the Appellant that he received the said sum as evidence of an attempt to bribe him by PW5 remains uncorroborated. The Appellant claimed he reported the incident to Hon. Jagaba (PW4 at pages 1120-1125 of the Records) who has denied any knowledge of the claim. It is curious that Appellant who wanted to use the money as evidence of bribe failed, refused or neglected to report the matter to the appropriate authorities. This line of defence is clearly an afterthought by the Appellant who would grab unto just about anything to save himself from drowning.
The Appellant himself testified at page 1256 of the Records and in his extra-judicial statement (Exhibit G1-G3) that he moved the motion and made the recommendation to the House not to indict Zenon Oil (Exhibit PW1B6). This testimony was corroborated by the testimonies of PW4 (Pages 1139-1142 of the Records). The said motion was moved on the floor of the House on 24/04/2012 right after the Appellant had received a total sum of $500,000 from PW5 in the early hours of the same 24/04/2012. These pieces of evidence and the conversation from the DVD Recording (Exhibit PWB3) are circumstantial evidence that the Appellant received money from PW5 to remove the name of PW5’s company, Zenon Oil from the list of indicted Companies. The trial Court was perfectly right and correct in convicting Appellant on Count 3 of the Charge. See the cases of JAMES OBI ACHABUA V. THE SATE (1976) LPELR-63 (SC) and LEKAN OLAOYE V. THE STATE (2018) 8 NWLR (PT. 1621) 281.
Issue 5 is resolved in favour of the Appellant ONLY in respect of Counts 1 and 2 of the Charge and NOT in respect of Count 3 which I have adjudged as having been proved by the Respondent beyond reasonable doubt.
Issues 3 and 6 is resolved against the Appellant.
The Appellant’s appeal succeeds in part only in respect of Counts 1 and 2 of the Charge against the Appellant and it is allowed. The Appellant is hereby discharged and acquitted ONLY in respect of Counts 1 and 2 of the three Count Charge. In respect of Count 3, the Appellant’s appeal fails and it is dismissed.
Consequently, the conviction of the Appellant in respect of the 3rd Count of the Charge to which the Appellant was found guilty under Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000 is hereby affirmed. The sentence to five (5) years imprisonment is also hereby affirmed.
PETER OLABISI IGE, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my Noble Lord, the Honourable President of the Court of Appeal. I entirely agree with the erudite reasoning and conclusion reached in the leading judgment.
The Appellant’s learned senior Counsel had contended under issue 1 that the 1st and 2nd Counts of the three Count charge against the Appellant are bad for duplicity. A charge is said to be bad for duplicity where a count in a charge or an information or indictment against an Accused or Defendant contains two or more offences that are lumped together. I call in aid the BLACK’S LAW DICTIONARY 11th Edition page 635 where the word duplicity is variously defined thus:
“1. Dishonest behavior that is designed to deceive someone; deceitfulness; doubt-dealing;
2. The charging of the same offence in more than one Court of an indictment.
3. The pleading of two or more distinct grounds of complaint or Defence for the same issue.”
I have read Counts 1 and 2 very calmly and I am of the solemn opinion that if the said Counts 1 and 2 are juxtaposed with the Independent Corrupt Practices and Other Related Offences Act 2000, there is no duplicity. The offence charged in Count 1 is covered by Section 8(1)(a) of the said Act while the offence charged in Count 2 is provided for in Section 17(1)(a) of the aforesaid Act.
The question to be asked is: Even if (which is not conceded) there is duplicity, has the Appellant established any miscarriage of justice or that he was misled by Counts 1 and 2 on account of duplicity. The Appellant failed to point to any miscarriage of justice or embarrassment he had suffered thereby. The Appellant duly pleaded to each of the three Counts charge at the lower Court after the charge containing three Counts had been read and explained to him. Neither he nor his Learned Counsel objected to any of the Counts contained in the said charge. The rule against duplicity was not breached by the Respondent in this case. The complaint of the Appellant is clearly unfounded.
The Appellant complaint under issues 2 and 3 borders on the jurisdiction of the lower Court to entertain the charge against the Appellant on the grounds that he was charged under a repealed or non-existent law and that he is not a public officer.
Just as the pleadings of the parties in action commenced by writ of summons or Affidavit in support in an action begun by originating Summons determines the jurisdiction of a Court seised of the matter, the jurisdiction of a Court or Tribunal in Criminal Proceedings will be determined by the charge laid against a Defendant or Accused in the Criminal proceedings. Any fundamental defect in a cause or matter will lead to the incompetence of a Court and it will render the proceedings conducted by such Court a nullity. It is not the transaction forming or culminating in the charge that the Court will be concerned with but whether the Court has jurisdiction to try the offences constituting the charge laid against the Defendant or an Accused person.
See: 1. A. F. OSARENREN VS. FRN (2018) 10 NWLR (PART 1627) 221 at 321 G-H per EKO, JSC.
2. OCHONOGOR ALEX VS. FRN (2018) 7 NWLR (PART 1618) 228 at 239 A-C per NWEZE, JSC.
3. ADAOHA UGO-NGADI VS. FRN (2018) 8 NWLR (PART 1620) 20 at 58 H per PETER-ODILI, JSC who said:
“In determining the Court with the requisite jurisdiction to entertain a criminal matter the Court would always consider the nature of the charge rather than the transaction forming the subject matter of the charge or the documents attached as proof of evidence.”
1. FRN VS OKEY NWOSU (2016) 17 NWLR (PART 1541) 226 at 290 A-B per M. D MUHAMMAD, JSC who said:
“It has long been settled that in determining whether or not it has jurisdiction to try an offence, the Court will consider the charge vis-a-vis the enabling law. See Onwudiwe V. FRN (2006) 16 NWLR (PT. 988) 382.”
The law is settled that a Defendant charged or arraigned on criminal case before a Court of competent jurisdiction cannot have the case or charge against him quashed or dismissed on the ground that arraignment was done under a wrong law or a repealed law where there is in existence a legislation criminalizing or prohibiting the acts or offences for which the Defendant is charged or he is standing trial. See;
IKECHUKWU IKPA V. THE STATE (2018) 4 NWLR (PART 1609) 175 AT 204 E TO G per AUGIE, JSC who said:-
“There is also nothing to indicate that Appellant was misled by the non-inclusion of the said definition section in the charge. As the Court of Appeal rightly observed, the said charge stated the specific name of the offence committed and the written law, therefore, the Appellant had sufficient notice of what he was up against when he pleaded not guilty to the charge read to him. The important question is whether the Appellant was misled by the error or defect in the charge – Ogbomor v. State (supra). The Appellant was charged with an offence known to law and he was represented by Counsel from plea to judgment stage, and since there is no evidence that the Appellant was misled, no miscarriage of justice occurred and the conviction is right. The said issue 1 is, therefore. resolved against the Appellant. “
The avalanche of decisions by the apex Court cited in the lead judgment points irresistibly to the salient fact that the ICPC Act 2000 remains the relevant and extant law under which the Appellant was arraigned on the three Count charge.
As to whether Appellant is a Public Officer my answer is in the affirmative. The offences for which he was charged at the lower Court were allegedly committed while performing public duties or functions as the Chairman of Ad-hoc Committee on Monitoring of Fuel Subsidy Regime sometimes in 2012. He was engaged as Legislator to perform public duty in the affairs or business of the Federation as a member of the House of Representatives of the National Assembly, an arm of the Government of the Federation. He acted and performed his duties as Chairman in the said Committee in official capacity. He was a Public Officer at the time material to the commission of the offences for which he was charged.
On whether he ought to be charged under Section 20 of the Legislative Houses (Powers and Privileges) Act, my position is that the Appellant cannot dictate to the prosecutor under which law he should have been charged. The offences for which he was charged are known to law under the ICPC Act 2000. The fact remains that ICPC Act 2000 was enacted by the National Assembly criminalizing or prohibiting the acts or offences for which the Appellant was charged. The ICP Act 2000 remains the extant and relevant law in respect of the charge against the Appellant. See ISIAKA MUMINI VS. FRN (2018) 11 SCM 127 at 137-138 A-B per EKO, JSC who said:
“I think it has to be borne in mind that the choice of the charge to prefer against the accused person on a given set of facts is the prerogative of the prosecutor. Neither the Court nor the accused person can interfere with the prerogative of the prosecutor in this regard. From a line of cases, including Yongo v. Commissioner of Police (1992) 8 NWLR (Pt. 257) 36: Alake v. The State (1992) 9 NWLR (Pt. 265) 260: Chima Ijioffor v. The State (2001) 4 SC (pt. 11) 1; (2001) NWLR (Pt. 718) 371, the Courts recognize and respect this prerogative of the prosecutor to prefer any charge from the facts at his disposal. Thus as Achike, JSC, Stated in IJIOFFOR v. THE STATE (supra) the prosecutor’s – Prosecutorial responsibility is to establish his case beyond reasonable doubt in order to secure the conviction of the accused person.
How he gets about discharging this is entirely his business. Under no circumstance will the accused person dictate to the prosecution what charge shall be preferred or what witness(es) shall be fielded against him in discharge of the prosecutor’s prosecutorial responsibilities.”
It is for the above reasons and the fuller reasons painstakingly and admirably articulated in the lead judgment that I agree in toto with the leading judgment. I also agree that the Appellant’s appeal in respect of Count 3 should be dismissed and I too allow the Appellant’s appeal ONLY in respect of Courts 1 and 2 contained in the Count charge. I too hereby dismiss the Appellant’s appeal in respect of Count 3 contained in the charge against him. I abide by all the consequential Orders contained in the leading judgment of my Noble Lord, the Honourable President of the Court of Appeal.
MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading before now, the lead judgment just delivered by my learned brother, MONICA BOLNA’AN DONGBAN-MENSEM PCA; I am in total agreement with the decision, and the conclusion reached, and adopt them as mine.
I will only add for emphasis, especially, that Section 318 (1) of the Constitution does not define “public officer”; be that as it may, the Interpretation Act defined “public officer” to mean:
“…an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of the fund provided by the public.”
The need for clarity with regard to the definition of a public officer is necessitated by the Appellant’s challenge of the findings of the trial Court with regard to whether the Appellant is indeed a public officer as found by the trial Court.
Section 2 of the Corrupt Practices and other Related Offences Act, 2000 on its part defines public officer as:
“…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 in magistrates, area or customary Courts or Tribunals.”
Now having said that, it is always very important to construe statutes in such a manner as to bring out their plain meanings, for no other reason than the need to portray the clear intentions of the framers of the law, that way, the purpose of the law is laid bare. This is borne out by several decisions, chief amongst which is MR SIMACH COLLIN V DHL INTERNATIONAL NIG LTD (2022) 2 NWLR part 1813 page 87, PRINCE MUSAFAU OMOWALE ADEMOLA KASSIM V PRINCE ADESEMOWO & ORS (2021) 18 NWLR part 1807 page 87 and EZEANI V NRC (2013) LPELR-22065-CA as well as NAHUCHE V NAHUCHE & ANR (2016) LPELR-41809 on the basis of which the trial Court came to the conclusion that the Appellant is a public officer.
It is not disputed that the Appellant at the relevant time was a member of the House of Representatives, entitled by virtue of that to salaries and allowances, thus perfectly fitting the description of a public officer; Section 66 (1) (f) of the Constitution in unequivocal terms throws its weight behind that by stating that:
“no person shall be qualified for election to the senate or House of Representatives if he is a persons employed in the public service of the Federation or of any state and has not resigned, withdrawn or retired from such employment…”.
This position of the law is also supported by the decision of the Supreme Court in CHIEF JOHN EZE V DIRECTOR I. OKECHUKWU (1998) 5 NWLR part 548 page 43. I am compelled, like my learned brother, in view of these to arrive at the conclusion that the Appellant is a public officer, for the simple reason that he is a legislator, and legislators are not excluded from the list that makes up public officers. I am further fortified in this belief by Part II of the Fifth Schedule, which makes a Senator and a member of the House of representatives a public officer for the purposes of the code of conduct, among other things.
Now on the question of whether the Respondent has proved its case against the Appellant beyond reasonable doubt, it is important to have recourse to the basic meaning of the operative word.
Generally speaking, in criminal trials, the standard required is proof beyond reasonable doubt, and not proof beyond any iota of doubt. The two mean entirely different things. The law has opted for the expression “proof beyond reasonable doubt, see DIMLONG V. DIMLONG [1998] 2 NWLR (PT. 538) 381, 178 AND STATE V. GWANGWAN (2015) LPELR-24837 (SC). The expression “beyond reasonable doubt” means the prosecution has discharged the burden imposed on it by law and connotes such proof as is sufficiently required by law, and no more, see OLADELE V. NIGERIAN ARMY [2004] 6 NWLR (PT. 868) 166, 179 AND NSOFOR V. STATE (2004) 18 NWLR (PT. 905) 292, 305.
In this regard, the quality of evidence matters a lot because if the evidence is strong against the accused person as to leave only a remote possibility in his favour which can be dismissed with “of course it is possible but not probable”, then the case is proved beyond reasonable doubt; see SABI V. STATE [2011] 14 NWLR (PT. 1268) 421; IWUNZE V. FEDERAL REPUBLIC OF NIGERIA [2013] 1 NWLR (PT. 1324) 119; NJOKU V. STATE [2013] 2 NWLR (PT. 1339) 548 and OSUAGWU V. STATE [2013] 5 NWLR (PT. 1347) 360; SEE ALSO SECTION 135 OF THE EVIDENCE ACT, 2011 (SECTION 138 OF THE DEFUNCT EVIDENCE ACT) and GOLDEN DIBIE & 2 ORS. V. THE STATE (2007) 9 NWLR (PT. 1038) 10; SAMBO ALH. GALADIMA V. THE STATE (2017) 14 NWLR (PT. 1585) 187 AT 205, PER SANUSI, and KWAME WISDOM V. THE STATE (2017) 14 NWLR (PT. 1585) 446 AT 464.
Where there is any doubt, such doubt is resolved in favour of the accused person, because as provided by Section 36 (5) of the 1999 Constitution, as amended, the accused person is presumed innocent, until the contrary is proved.
The Appellant was charged with corruptly asking for the sum of $3,000,000 from Mr. Femi Otedola with the intention of favoring him by removing the name of Zenon Petroleum and Gas Ltd from the report of the House Ad-Hoc Committee on monitoring fuel subsidy which the Appellant chairs; and also that the Appellant corruptly agreed to accept the sum of $3,000,000 inducement to remove the company Zenon Petroleum from the list of companies indicted by the committee; see page 382 of the record of appeal.
The prosecution called five witnesses in proof, unfortunately, none of which led evidence in proof beyond reasonable doubt that the Appellant actually agreed to accept the $3,000,000 from Femi Otedola i.e. PW5; who in his evidence at page 1159 of the record of appeal stated that he knows the Appellant as the chairman of the investigative committee, and that the Appellant called him to demand the sum of $3,000,000; and also that he gave him $500,000, which was given to him by the directorate of state services; as a consequence of which the name of the company of PW5 was removed from the list, leading to a demand of the balance of $2,500,000 by the Appellant; see pages 1159 to 1167 of the record of appeal, and that PW5 simply told the Appellant that the balance was being arranged, and would be brought to Abuja.
This clearly is not sufficient to proof count one beyond reasonable doubt; and with regard to count two the evidence of PW5 when he stated during examination in chief that:
“…I did not offer him $3,000,000 for the fact that I was one of the biggest players in the business and I reported the matter when I discovered the scam and he did mention to me that several companies that got involved with the scam got paying. I reported to DSS.”, is clear proof of failure to prove the allegation in count two.
Furthermore, the telephone numbers the Appellant and PW5 used to communicate were not investigated by either PW2 or anyone else in the prosecution team to ascertain the veracity of the claim of PW5, that the Appellant demanded the said $3,000,000, this in my considered opinion leaves a yawning gap in the case.
It is for these reasons that I also agree that counts 1 and 2 were not proved against the Appellant.
It is a different matter altogether with regard to count three which accused the Appellant of receiving $500,000 from PW5 as an inducement to remove Zenon Petroleum from the list of indicted companies.
Of all the evidence of the five prosecution witnesses that of PW5 is most damning in the sense that he led evidence in proof of giving the Appellant the said $500,000 in two tranches of $250,000. PW2 also established that the Appellant collected the said amount; and in furtherance of the promise, the appellant actually removed the name of Zenon petroleum from the list of indicted companies.
That to my mind proves count three beyond reasonable doubt, bearing in mind that indeed an accused person is not convicted simply because the Court finds his account or version of the incident to be incredible or an outright lie. No, it is not only because of that. Despite the unconvincing evidence of the Appellant in this regard, especially when he admitted in writing that he did not report any bribery or attempt at that to the police, and still went ahead to undertake to refund $600,000 received from the PW5, i.e. Exhibit PW1C, and also stated that he gave the money to PW4, with the unconvincing claim that he meant to collect it later and make a formal complaint to the police, coupled with the complete denial of this tale by the PW4. One cannot help but conclude that the story does not add up; but still, this Court while not unaware of its duty to examine the totality of evidence adduced before it in order to ascertain whether the guilt of the accused person has been established beyond reasonable doubt, did just that, leading it to the conclusion that this count was indeed established beyond reasonable doubt. I am on all fours with my learned brother in this regard too; See AGUNBIADE V. THE STATE (1999) 4 NWLR (Pt. 599) 391.
The admission, and further acceptance to make refund with regard to the $500,000 settles it for me. There is no further need for corroboration; see Exhibits G1-G3 and pages 1153 and 1155 of the record of appeal.
The trial Court was impeccable in its findings, especially with regard to count three. I also allow the appeal in part, with regard to counts one and two of the charge. The Appellant’s appeal fails in respect of count three, and the appeal is dismissed in that regard.
I accordingly affirm the conviction of the Appellant under Section 17 (1) (a) of the Corrupt Practices and other Related Offences Act, 2000. I affirm the sentence of 5 years’ imprisonment too.
Appearances:
J. B. Daudu, SAN, with him, Ahmed Raji, SAN, Sekop Zumka, Esq., Adedayo Adedeji, Esq. and B. B. Daudu, Esq. For Appellant(s)
A. K. Alilu, Esq., with him, Yetunde Aderonke Imana (Mrs.) and Chidiadi Ann Okoro, Esq., DDP of the Federation. For Respondent(s)