MONDAY ISIORHO OKOH v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13441(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of June, 2019
CA/B/462C/2018
RATIO
CRIMINAL LAW AND PROCEDURE: BURDEN OF PROOF
The legal and evidential burden of proving the guilt of an accused person is placed on the Prosecution and this must be discharged beyond reasonable doubt by proving every ingredient of the offence charged by credible evidence. That burden does not shift. However, proof of a case beyond reasonable doubt does not mean proof beyond any iota or shadow of doubt or proof to the hilt. The Supreme Court in Oseni v. State (2012) LPELR-7833 (SC); (2012) 5 NWLR Pt. 1293 Pg. 351 opined that proof beyond reasonable doubt simply means the prosecution establishing the guilt of an accused person with compelling and conclusive evidence.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
HOW TO PROVE A PERSON GUILTY UNDER THE PUBLIC OFFICER’S ACT
From the provisions reproduced herein, in order for the prosecution to succeed in a charge of conferring corrupt advantage upon oneself, the ingredients to prove are as follows:
1. That the Appellant is a public officer
2. That he used his position to;
a. gratify himself,
b. confer any corrupt advantage upon himself or
c. confer any unfair advantage upon himself.
See FRN v. USMAN (2018) LPELR-43894 (CA).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MONDAY ISIORHO OKOH Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Edo State High Court delivered by Hon. Justice E.A. Edigin on 13/12/2017 wherein the Appellant was convicted and sentenced to five years imprisonment.
The facts that led to this appeal are as follows: –
The Appellant worked with the Benin Owena River Basin Development Authority (BORBDA) and was a salary officer in charge of preparation of monthly salaries. The management of the Organization discovered there was always a shortfall every month such that they had to augment from other sources to pay staff salaries. A three man panel was set up to scan through the salaries of the staff from year 2006 to 2008 and it was discovered that about 28 officers including the Appellant had regularly been enjoying overpayment of salaries. The Management directed those involved to be queried and later directed them to pay back all the overpayments in their salaries but the Appellant failed to pay anything at all.
?The Appellant was brought before the High Court of Edo State for trial in Suit No. B/ICPC/4/2012 on a thirteen (13)
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count charge bothering on corrupt practices and other related offences but counts 7, 8, 9, 10 and 11 were dismissed. The appellant was convicted in counts 1, 2, 3, 4, 5, 6 and 12 which are set out below:-
COUNT 1
Conferring corrupt advantage upon himself contrary to and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act 2000.
PARTICULARS OF OFFENCE
Monday Isiorho Okoh (M) Sometime in the month of March, 2006 or thereabout being a Public Officer serving with the Benin Owena River Basin Development Authority (BORBDA) did confer corrupt advantage upon yourself by receiving an unlawful salary for the Month of February 2006 in the sum of N53, 900.00k (Fifty Three Thousand, Nine Hundred Naira) only through your salary account No. 1112010012755 maintained with First Bank of Nigeria Mission Road Branch Benin City, which money you were not entitled to: reason being that in the month of March, 2006 or thereabout, you also received your lawful salary of the month of February, 2006 in the sum of N45, 517.50K (Forty Five Thousand, Five Hundred and Seventeen Naira, Fifty Kobo) only through your salary Account No.
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01990520295-2-55 maintained with the United Bank for Africa(UBA) Akpakpava Branch Benin City.
COUNT 2
Conferring corrupt advantage upon himself contrary to and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act 2000.
STATEMENT OF OFFENCE
Monday Isiorho Okoh (M) Sometime in the month of April, 2006 or thereabout being a public officer serving with the Benin Owena River Basin Development Authority (BORBDA) did confer corrupt advantage upon yourself by receiving an unlawful salary for the Month of March 2006 in the sum of N97, 547.13k (Ninety Seven Thousand, Five Hundred and Forty Seven Naira, Thirteen Kobo) only through your salary account No. 1112010012755 maintained with First Bank of Nigeria Mission Road Branch Benin City, which money you were not entitled to: reason being that in the month of April, 2006 or thereabout, you also received your lawful salary for the month of March, 2006 in the sum of N98, 761.34K (Ninety Eight Thousand, Seven Hundred and Sixty One Naira, Thirty Four Kobo) only through your salary Account No. 01990520295-2-55 maintained with the United Bank for Africa(UBA) Akpakpava Branch
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Benin City.
COUNT 3
Conferring corrupt advantage upon himself contrary to and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act 2000.
PARTICULARS OF OFFENCE
Monday Isiorho Okoh (M) sometime in the month of August, 2006 or thereabout being a Public Officer serving with the Benin Owena River Basin Development Authority (BORBDA) did confer corrupt advantage upon yourself by receiving an unlawful salary for the Month of July 2006 in the sum of N109, 721.95k (One Hundred and Nine Thousand, Seven Hundred and Twenty One Naira, Ninety Kobo) only through your salary account No. 1112010012755 maintained with First Bank of Nigeria Mission Road Branch Benin City, which money you were not entitled to: reason being that in the month of August, 2006 or thereabout, you also received your lawful salary of the month of July, 2006 in the sum of N136, 110.22K (One Hundred and Thirty Six Thousand, One Hundred and Ten Naira) only through your salary Account No. 01990520295-2-55 maintained with the United Bank for Africa(UBA) Akpakpava Branch Benin City.
COUNT 4
?Conferring corrupt advantage upon himself contrary to
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and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act 2000.
PARTICULARS OF OFFENCE
Monday Isiorho Okoh (M) Sometime in the month of November, 2006 or thereabout being a Public Officer serving with the Benin Owena River Basin Development Authority (BORBDA) did confer corrupt advantage upon yourself by receiving an unlawful salary for the Month of December 2006 in the sum of N161, 847.57k (One Hundred and Sixty One Thousand Eight Hundred and Forty Seven Naira Fifty Seven Kobo) only through your salary account No. 1112010012755 maintained with First Bank of Nigeria Mission Road Branch Benin City, which money you were not entitled to: reason being that in the month of December, 2006 or thereabout, you also received your lawful salary for the same month of December, 2006 in the sum of N180, 145.23K (One Hundred and Eighty Thousand, One Hundred and Forty Three Naira, Twenty Three Kobo) only through your salary Account No. 01990520295-2-55 maintained with the United Bank for Africa(UBA) Akpakpava Branch Benin City.
COUNT 5
Conferring corrupt advantage upon himself contrary to and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act 2000.
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PARTICULARS OF OFFENCE
Monday Isiorho Okoh (M) Sometime in the month of January, 2007 or thereabout being a Public Officer serving with the Benin Owena River Basin Development Authority (BORBDA) did confer corrupt advantage upon yourself by receiving an unlawful salary for the Month of January 2007 in the sum of N209, 800.55k (Two Hundred and Nine Thousand, Eight Hundred Naira, Fifty-Five Kobo) only through your salary account No. 1112010012755 maintained with First Bank of Nigeria Mission Road Branch Benin City, which money you were not entitled to: reason being that in the month of February, 2007 or thereabout, you also received your lawful salary of the month of January, 2007 in the sum of N170, 000.55K (One Hundred and Seventy Thousand Naira, Fifty Five Kobo) only through your salary Account No. 01990520295-2-55 maintained with the United Bank for Africa(UBA) Akpakpava Branch Benin City.
COUNT 6
Conferring corrupt advantage upon himself contrary to and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act 2000.
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PARTICULARS OF OFFENCE
Monday Isiorho Okoh (M) Sometime in the month of April, 2007 or thereabout being a Public Officer serving with the Benin Owena River Basin Development Authority (BORBDA) did confer corrupt advantage upon yourself by receiving an unlawful salary for the Month of March, 2007 or thereabout in the month April 2007, in the sum of N140, 688.95k (One Hundred and Forty Thousand, Six Hundred and Eighty Eight Naira, Ninety Five Kobo) only through your salary account No. 1112010012755 maintained with First Bank of Nigeria Mission Road Branch Benin City, which money you were not entitled to: reason being that in the month of March, 2007 or thereabout, you also received your lawful salary in the sum of N170,582.00K (One Hundred and Seventy Thousand Five Hundred and Eighty Two Naira) only through your salary Account No. 01990520295-2-55 maintained with the United Bank for Africa(UBA) Akpakpava Branch Benin City.
COUNT 12
Conferring corrupt advantage upon himself contrary to and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act 2000.
PARTICULARS OF OFFENCE
?Monday Isiorho Okoh (M) Sometime in the month of December, 2006 or
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thereabout being a Public Officer serving as the Salary Officer with the Benin Owena River Basin Development Authority (BORBDA) in Benin did confer corrupt advantage upon Enudi Lazarus being a Public Officer serving as the Cashier with the Benin Owena River Basin Development Authority by paying him an unlawful salary in the sum of N80, 124. 36k (Eighty Thousand, One Hundred and Twenty Four Naira, Thirty Six Kobo) only through Mr. Enudi Lazarus salary Account No. 019-90520332301 maintained with the United Bank for Africa(UBA) Akpakpava Branch Benin City which money he was not entitle to.
The Appellant pleaded not guilty to the counts.
In proof of its case, the Prosecution now Respondent called Nine (9) witnesses and tendered several exhibits while the Appellant testified in his own defence to the charge against him.
In a considered judgment, the Appellant was convicted and sentenced in respect of counts 1, 2, 3, 4, 5, 6 and 12 of the information.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on 18/1/18 and an amended Notice of appeal was filed on 11/9/18 and deemed filed on 14/1/19. The Record of Appeal was
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transmitted on 10/9/18. The Appellant filed his brief of argument on 11/9/18 and a reply was filed on 25/3/19. The Respondent?s brief of argument was filed on 20/3/19.
The Appellant in the brief settled by Olayiwola Afolabi Esq, P.E. Chukwu (Mrs.) A.I. Tsado (Mrs.), Simon Ezenwa Ezeh Esq., A.D. Yusuf (Mrs), Uloho Esther (Mrs), E.C. Abednego Esq, E.D. Oribhabor, E. Odiase Esq., A.O. Osula Esq., M.O. Asuma, S.U. Enyawuile Esq., I.I. Irele-Ifijeh Esq., and E.N. Akeme (Miss) identified three issues for the determination of the appeal to wit:
1. Whether by the evidence led by the prosecuting witnesses and documentary evidence tendered, it was sufficient enough to secure the conviction of the Appellant.
2. Whether the Appellant has the onus of proof to show that money found in his First Bank Nigeria Account (Exhibit O) is his lawful salary in a criminal proceedings when the burden of proof is in the prosecution.
3. Whether the trial judge can make a finding and give judgment in respect of evidence not provided by the prosecution.
V.O. Iwoba Esq., who settled the Respondent?s brief identified a sole issue for the determination of this
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appeal to wit:
Whether the Respondent has proved its case against the Appellant beyond reasonable doubt.
In the determination of this appeal, I humbly hold the firm view that there is only one issue which is necessary to address the complaints raised by the Appellant and it is set out as follows:-
Whether in the circumstances of this case, the evidence adduced by the prosecution is sufficient to sustain the conviction of the Appellant.
SOLE ISSUE
Whether in the circumstances of this case, the evidence adduced by the Prosecution is sufficient to sustain the conviction of the Appellant.
Learned Counsel to the Appellant submitted that the standard of proof in criminal cases must be beyond reasonable doubt and not beyond all shadow of doubt and the accused person must be discharged where the Prosecution fails to prove this. Counsel cited Owolabi Kolade v. The State (2017) LPELR-42362 (SC).
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Learned Counsel further submitted that mere suspicion cannot justify the conviction of an accused, there must be evidence which identified the accused person with the offence and which shows that it was his act that caused the offence. Counsel
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cited Adebesin v. State (2014) LPELR-22694 (SC).
Counsel emphasized that for the Appellant to b
