MR. EMENALO BONIFACE v. FEDERAL REPUBLIC OF NIGERIA
(2014)LCN/7184(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of May, 2014
CA/A/376C/2013
RATIO
ARBITRARY EXERCISE OF A COURT’S DISCRETION
The law is settled, as rightly submitted by the learned counsel for the appellant, that where a court is invited to exercise any discretion in any cause or matter the discretion cannot and should not be exercised arbitrarily. Every judicial discretion must be exercised judicially and judiciously. Per MOORE A. A. ADUMEIN, J.C.A
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
TINUADEAKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
MR. EMENALO BONIFACE Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA
IN RE:
FEDERAL REPUBLIC OF NIGERIA
AND
1. HON. FAROUK M. LAWAN
2. MR EMENALO BONIFACE
(ACCUSED PERSONS) Respondent(s)
MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant is the 2nd accused in Charge No. FCT/HC/CR/76/2013 wherein he and one Hon. Farouk M. Lawan are charged in the High Court of the Federal Capital Territory, Abuja with the following offences:
“COUNT ONE
That you Hon. Farouk Lawan (M) and Mr. Emenalo Boniface (M) 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 duties as Chairman and Secretary (respectively) of House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime conspired between yourselves and with each other to corruptly obtain the sum of S3,000,000 USD (Three Million US Dollars) for yourselves from Mr. Femi Otedola Chairman Zenon Petroleum and Gas Ltd as inducement to remove the name of Zenon Petroleum and Gas Ltd from the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime’s Report and did cause the House of Representatives to remove the name of Zenon Petroleum and Gas Ltd from the said list and you thereby committed an offence contrary to section 26(1)(c) of The Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 8(1) 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 asked for the sum of S3,000,000 USD (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 said 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) the same Act.
COUNT THREE
That you Hon. Farouk Lawan (M) while being a member of the House of Representatives and Chairman of 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 S3,000,000 USD (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 as an inducement to remove the name of Zenon Petroleum and Gas Ltd from the Report of the 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) the same Act.
COUNT FOUR
That you Hon. Farouk Lawan (M) while being a member of the House of Representatives and Chairman of 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 obtain the sum of S500,000 USD (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) the same Act.
COUNT FIVE
That you Mr. Emenalo Boniface (M) while being a Public Officer, An Assistant Director and Secretary of the 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 as Secretary of the House of Representatives Ad-Hoc Committees on Monitoring of Fuel Subsidy Regime corruptly asked for the sum of S3,000,000 USD (Three Million US Dollars) for yourself from Mr. Femi Otedola Chairman Zenon Petroleum and Gas Ltd on account of intention of afterwards showing favour to the said Mr. Femi Otedola by removing the name of Zenon Petroleum and Gas Ltd from the said 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)(b)(ii) of The Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 8(1) the same Act.
COUNT SIX
That you Mr. Emenalo Boniface (M) while being a Public Officer, An Assistant Director and Clerk of the Committee on Education of the House of Representatives 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 as Secretary of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime was offered gratification by Mr. Femi Otedola Chairman Zenon Petroleum and Gas Ltd and you failed to report the offer of gratification to any officer of the Independent Corrupt Practices and Other Related Offences Commission or any Police Officer and you thereby committed an offence contrary to Section 23(1) of The Corrupt Practices and Other Related Offences Act, 2000 and punishable under section 23(3) the same Act.
COUNT SEVEN
That you Mr. Emenalo Boniface (M) while being a Public Officer, An Assistant Director and Clerk of the
Committee on Education of the House of Representatives 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 as Secretary of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime received the sum of S120,000 USD (One Hundred and Twenty Thousand US Dollars) as gratification from Mr. Femi Otedola Chairman Zenon Petroleum and Gas Ltd in order to remove the name Zenon Petroleum and Gas Ltd from the Report of the Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime and you thereby committed an offence contrary to section 10(a)(ii) of The Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 10 of the same Act.”
Upon arraignment, the two accused persons in the said charge filed their applications on the 2nd day of April, 2013, in which they sought the following reliefs:
“(1) An order of this honourable court quashing Charge No. FCT/HC/CR/76/2013, brought against the applicant.
(2) An order of this honourable court discharging the applicant in respect of the said charge.
(3) And for such further order(s) as the honourable court may deem fit to make in the circumstances of this application and/or charge.
The application was premised on the following grounds:
“(1) That the lower court lacks jurisdiction and competence to try, hear and determine the offences as contained in said charge, as the conditions precedent to prefer same have not been fulfilled thereby rendering the charge incompetent.
(2) The proof of evidence does not disclose the commission of any offence by the accused/applicants in the circumstances of the charge before this honourable court.
(3) The proof of evidence as filed does not disclose a prima facie case against the accused/applicants in the said charge requiring the accused/applicants to stand trial the lower court.
(4) The charge as constituted is devoid of essential ingredients to suggest the commission of the offences for which the accused/applicant stand charged.
(5) The offences alleged in the said charge as constituted are vague and imprecise vis-a-vis the proof of evidence.
(6) The charge is gross abuse of court process.”
The application was supported with an affidavit of 15 paragraphs dated 2nd April, 2013 and a written address dated 28th day of March, 2013 to back up the application.
In accordance with the Rules of the lower court, the respondent filed a written address in opposition to the application.
The lower court heard the parties and in a reserved ruling delivered on the 10th day of May, 2013 dismissed the appellant’s application as one lacking merit. The appellant not satisfied with the ruling filed a notice of appeal on the 6th day of June 2013.
In his brief of arguments, the appellant identified the following issues for determination:
“(1) Whether the honourable trial court has the jurisdiction to entertain the charges as constituted having regard to the provisions of section 185(b) of the Criminal Procedure Code and Order 3 rules 1 and 2(a)(b) of the 1970 rules to prefer a direct criminal charge in the high court.
(2) Whether the honourable trial court did not err in law when it held that the prosecution’s failure to attach the written statements of four intended witnesses to the application to prefer charges against the appellant did not render the application incompetent.
(3) Whether the honourable trial court did not err in law when it held that the proof of evidence discloses a prima facie case against the appellant, warrant him to stand trial.
(4) Whether the trial judge did not err in law when it held that the charge as constituted did not amount an abuse of court Process.
The respondent, however, formulated only two issues for determination as follows:
“(1) Whether the learned trial judge was right in finding that the proof of evidence before the lower court complied with the provisions of section 185(b) of the Criminal Procedure Code and thus, conferred jurisdiction on the lower court. (Grounds 1, 2, 3 and 4).
(2) Whether the learned trial judge was correct when h held that the charge as constituted before the lower court discloses a prima facie case against the accused persons and therefore not an abuse of court processes. (Grounds 5 and 6).
I am of the view that the two issues identified by the respondent adequately cover the grounds of appeal and to which the issues have been properly tied.
ISSUE ONE
Whether the learned trial judge was correct in finding that the proof of evidence before the lower court complies with the provisions of Section 185(b) of the CPC and thus conferred jurisdiction on the lower court. (Grounds 1, 2, 3 and 4).
This issue covers the appellants’ issues 1 and 2.
The learned counsel for the appellant emphasized the issue of jurisdiction as being radical and crucial to the question of a court’s competence since if a court lacked jurisdiction its proceedings would ab initio be a nullity. Reliance was placed on the case of FCSC v. Laoye (1989) 2 NWLR (Pt.106) 708. It was contended that the fulfillment of a condition precedent being tied to the issue of jurisdiction “goes to the competence of a court”. In this contention, the court was referred to the case of Niger Care Development Co. Ltd v. Adamawa State Water Board & Ors. (2008) 9 NWLR (Pt. 1093) 495.
It was submitted that the discretion to grant leave to prefer a charge under section 185(b) of the Criminal Procedure Code (CPC) must be exercised judicially and judiciously. On this point, the appellant referred the court to the case of Ohwovoriole v. FRN (2003) 2 NWLR (Pt. 803) 176. The learned counsel for the appellant argued that the material placed before the court when leave was granted did not disclose the commission of the alleged offences by the appellant and that the trial court wrongly assumed jurisdiction.
On the alleged failure by the respondent to attach the written statements of some of the intended witnesses to the application for leave to prefer the charges against the appellant, learned counsel submitted that it was mandatory for all written statements to be included in the proof of evidence. It was further contended that the only written statement supplied by the respondent did not disclose the commission of any offence by the appellant.
In response to the issue of written statements, the learned counsel for the respondent referred to the case of FRN v. Wabara (2013) 5 NWLR (Pt. 1347) 331 and submitted that it was not a requirement of the law that written statements of witnesses must be attached to an application for leave under section 185(b) of the CPC.
The learned counsel for the respondent argued that the trial court properly interpreted the provisions of section 185(b) of CPC and rightly found that the proof of evidence in this case complied with the requirements/provisions of section 185(b) of the CPC. In other words, the respondent contended that having regard to the facts of this case, the lower court rightly assumed jurisdiction after granting leave under section 185(b) of the CPC.
The law is settled, as rightly submitted by the learned counsel for the appellant, that where a court is invited to exercise any discretion in any cause or matter the discretion cannot and should not be exercised arbitrarily. Every judicial discretion must be exercised judicially and judiciously.
The application for leave to prefer the criminal charge against the appellant and his co-accused – Hon. Farouk M. Lawan was brought under section 185(b) of the Criminal Procedure Code.
The record of appeal shows that the motion ex parte for leave to prefer the criminal charge against the appellant was accompanied with:
“1. A copy of the Charge Street in respect of which leave is sought Names and addresses of witnesses;
2. Proof of Evidence, which shall be relied upon at the trial and:
3. List of exhibits to be tendered at trial.”
It should be noted that the proof of evidence spans pages 14 – 17 of the record and it contains the summaries of the evidence of the witnesses the respondent would call at the substantive trial.
The learned counsel for the appellant argued strenuously, inter alia, that “all written statements must be included in the proof of evidence in order to enable the trial court exercise the discretion to grant leave to prefer a charge is mandatory”. In support of this argument, heavy reliance was placed on the decision of the Supreme Court in Ohwovoriole v. Federal Republic of Nigeria (supra) at 189 where the apex court held:-
“When determining an objection that a prima facie case has not been made out against an accused person the charge be quashed, the court is guided by the following principles:
The court must confine itself to the statements and documents put forward in the proof of evidence at the time the objection was raised once the proof of evidence does not disclose any offence, the charge must be quashed.
The proof of evidence only needs to show the probability and not the certainty that the accused person is linked with the offences charged. Such evidence must be direct or circumstantial. Whether there are other co-existing circumstances which could weaken the inference that may draw from the circumstances or whether the evidence leads irresistibly to accused persons guilt can be determined at the trial.
In arriving at the decision on whether a prima facie case has been made out, the court examine all the depositions made by potential witnesses and accused persons so as to find if there is a ground for proceeding against the accused. It is only where a consideration of the totality of the evidence (if believed) when deemed un-contradicted disclose no link of the accused with the offence that the charge will be quashed.
Although the statement and the document in the proof of evidence are deemed to be true and un-contradicted at this stage, the trial court must ensure that only legally admissible evidence is considered. There must be an examination and application of principles of law to the facts and the court cannot act on any piece of evidence which even if believed would be irrelevant or admissible in law.”
Section 185(b) of the Criminal Procedure Code provides that:-
“No person shall be tried by the High Court unless:
(b) a charge is preferred against him without holding a preliminary inquiry by leave of a judge of the High
Court.”
The conditions to be fulfilled in respect of an application under Section 185(b) of the CPC are clearly set out in the Criminal Procedure Code (Applications to prefer a charge in the High Court) Rules, 1970 of which Order 3 rules 1 and 2 provide as follows:
“Every application other than an application made under Rule 2, shall be in writing, signed by the applicant or his counsel and;
(a) Shall be accompanied by the charge in respect of which leave is sought and, unless the application is made by or on behalf of the Attorney-General shall also be accompanied by an affidavit by the applicant that the statement contained in the application are the best of the deponent’s knowledge, information and believe true and;
(b) Shall state whether or not any application has previously been made under these Rules and whether or not any proceedings have been taken under Chapter XVII of the Criminal Procedure Code, and the result of any such application or proceedings.
(2) Where no proceedings have been taken under Chapter XVII of the Criminal Procedure Code, the application shall state the reason why it is desired to Prefer a charge without such proceedings having been taken and;
(a) There shall accompany the application proofs of the evidence of the witness whom it is proposed to call in support of the charge and;
(b) The application shall include a statement that the evidence shown in the proofs will be evidence which will available at the trial and that the case disclosed by the proof is, to the best of the knowledge, information and belief of the applicant, true case.”
In respect of the appellant’s complaint that the written statements of some of the respondent’s proposed witnesses were not attached to the application for leave, a careful reading of the requirements under the Criminal Procedure Code (Application to Prefer a Charge in the High Court) Rules 1970 reveals no such condition. What is required under the said Rule, is for an applicant under section 185(b) of the CPC to accompany the application with “proofs of evidence” and not the written statements of witnesses proposed to be called in support of the charge.
The Supreme Court clarified this issue when the apex court per M. D. Muhammed, JSC held in Federal Republic of Nigeria v. Senator Adolphus N. Wabara & 2 Ors. (2013) 5 NWLR (Pt. 1347) 331 at 350 that the Criminal Procedure (Applications for Leave to Prefer a Charge in the Court) Rules, 1970 do not stipulate that witnesses’ statements must be attached to an application for leave to prefer a charge against an accused person. After stating that all that is required is for adequate materials to be provided to enable the court to exercise its discretion whether or not it is just to put the accused persons on trial, the apex court stated further that:
“It is worth the while to know that proofs of evidence are not the same as the statements of the witnesses the appellant would call at the trial. Proofs of evidence are summaries of the statements of those witnesses to be called at trial by the appellant. It is for that reason that the rules require an affirmation from the applicant that the evidence against the respondents as summarized in the proofs of evidence prepared by the appellant will be the evidence against the respondents in respect of whose trial the court is urged to grant the leave to prefer a charge. Even at the trial, the respondents, on the authorities, are only entitled access to the statements of the prosecution’s witnesses on the fulfillment of certain conditions”.
The material supplied to the trial court by the respondent in the ex parte application for leave to prefer a criminal charge against the appellant satisfied the requirements of section 185(b) of the CPC and Order 3 of the Criminal Procedure (Applications for Leave to Prefer a Charge in the High Court) Rules, 1970.
This issue is hereby resolved in favour of the respondent against the appellant.
ISSUE TWO
Whether the learned trial judge was correct when he held that the charge as constituted before the lower court discloses a prima facie case against the accused persons and therefore not an abuse of court processes. (Grounds 5 and 6).
The substance of the learned counsel for the appellant’s arguments on this issue is that, after a proper analysis of the offences with which he is charged and the proof of evidence, there is no prima facie case has been established against the appellant. Learned counsel, in this respect, relied on the cases of Ajiboye v. State (1995) 8 NWLR (Pt. 414) 408; Abacha v. The State (2002) 11 NWLR (2002) 11 NWLR (Pt. 779) 437 and Ikomi v. The State (1986) 3 NWLR (Pt. 28) 340.
The response of the respondent is that there are enough materials justifying the decision of the lower court that a prima facie case had been disclosed in the proof of evidence. It was also contended on behalf of the respondent that the court could only look at the materials and not at any conjecture on probable defences open to the appellant.
Reference on this point was made to the case of Uket v. FRN (2008) All FWLR (Pt. 411) 923.
In his well-considered decision, the learned trial judge, after a comprehensive analyses of the arguments put forward by the parties, the cases cited by them, section 185(b) of the Criminal Procedure Code and the Rules there under, and the proof of evidence, concluded at page 447 of the record as follows:
“In all I have come to the final conclusion that:
1. This court is competent and has jurisdiction to try, hear and determine the offences as contained in the charge sheet, as the condition precedent to prefer same have been fulfilled and thereby rendering the charge competent.
2. The proof of evidence discloses prima facie the commission of offences by the accused in the circumstance of the charge before the court.
3. That the proof of evidence discloses a prima facie case against the accused and requiring them to stand trial before this court.
4. That it is premature to determine at this stage whether the essential ingredient to suggest the commission of the offence has been established.
5. The alleged offences in the said charge as constituted are not vague nor imprecise vis-a-vis the proof of evidence.
6. The charge before the court does not constitute an abuse of court process.”
The conclusion of the learned trial judge, reproduced above, cannot be faulted having regard to the facts and circumstances of this case. Having agreed with the trial court that the proof of evidence in this case discloses a prima facie case warranting a full trial of the appellant, it may be prejudicial to the substantive trial if I undertake a comprehensive analysis of the proof of evidence to show that a prima facie case has been disclosed against the appellant. I only need to add here that the criminal charge preferred against the appellant is not an abuse of process as alleged by him or at all. In any case, where a trial court has properly exercised its discretion in accordance with the law based on the facts presented before it, it is not open to this court to disturb the decision of the trial court by substituting its own views for those of the court below. See Solanke v. Ajibola (1969) 1 NLR 259; Oyeyemi v. Irewole Local Govt. (1993) 1 NWLR (Pt. 270) 462; Federal Republic of Nigeria v. Senator Adolphus N. Wabara (2013) 5 NWLR (Pt. 1347) 331.
In view of all that I have stated above, the two live issues which call for determination are hereby resolved in favour of the respondent against the appellant.
The conclusion of the matter is that this appeal is completely devoid of any merit. This appeal is hereby dismissed, accordingly.
The decision of the lower court is hereby affirmed. The appellant is hereby ordered to face trial in the lower court in respect of the charge preferred against him and his co-accused and which trial should be expeditiously carried out by the trial court.
AMIRU SANUSI, OFR, J.C.A.: I have had the advantage of reading before now the judgment just delivered by my noble lord M.A.A. Adumein, JCA. His lordship had ably addressed the salient issues canvassed by learned counsel to the parties and ultimately arrived at a conclusion which is agreeable to me, that the appeal is lacking in merit. I too hereby dismiss the appeal and affirm the decision of the trial court.
I abide by the consequential order made in the lead judgment.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the privilege of reading in draft the judgment delivered by my learned brother, Adumein JCA. I am in full agreement with my learned brother that this appeal lacks merit.
The Appellant is ordered to face his trial in the lower court.The Appellant is ordered to face his trial in the lower court.
Appearances
O. Jolaawo, Esq. with Miss C. Ndigwe, Akinyemi Aremu, Esq. and Miss Winnie OkuonghaeFor Appellant
AND
Chief (Mrs.) V.O. Awomolo (SAN) with Marcus Abu, Mrs. Feyisayo Folorunso, J.D. Odi and Mrs. Ifeoma E. NdukweFor Respondent
