MUSA ALIYU YAHAYA v. FEDERAL REPUBLIC OF NIGERIA
(2007)LCN/2191(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of January, 2007
CA/A/C/175/2005
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 185(B) OF THE CRIMINAL PROCEDURE CODE
Section 185 (b) of the Criminal Procedure Code provides that:- “No person shall be tried by the High Court unless (a) – (b) a charge is preferred against him without the holding of a preliminary inquiring by Leave of a Judge of the High Court.” An application for Leave to prefer criminal charge is made pursuant to section 185 (b) of the Criminal Procedure Code. Under the said rules the application shall be accompanied by a copy of the charge brought to be prepared, names of witnesses who shall give evidence at the trial, proof of evidence, i.e. written statement of witnesses and accused person which shall be relied on at the trial. The applicant who must be the Attorney-General of the Federation or of a State (depending on the nature of the charge) or a counsel in his office acting of his behalf shall also inform the court that no application for such Leave has been made previously in the case and that No preliminary investigation is being conducted in any magistrate court. Acting under the said Rules the trial judge has discretion to grant or refuse the application, and this discretion can only be exercised after the trial judge examines the proof of evidence and all the documents filed in support of the application. PER BODE RHODES-VIVOUR, J.C.A.
PRIMA FACIE : THE TERM PRIMA FACIE EXPLAINED
In AJIDAGBA V. IGP (1958) SCNLR p 60 the term prima facie was explained thus:- “what is meant by prima facie (case). It only means that there is ground for proceeding… But a prima facie case is not the same as proof which comes later when the court has to find whether the accused is guilty or not guilty ….. and the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused”, A prima facie case is established where after examining the proofs of evidence there is something that requires an explanation from the appellant. That is to say the appellant/accused person must be sufficiently linked to the offence and an explanation is necessary from him at the trial. See IKOMI v. STATE (1986) INSCC Vol. 17 P 730. R v. OGUCHE (1959) 4 FSC P 64. Where on the other hand the facts do not disclose a prima facie case the information must be quashed. See OKORO v. STATE (1988)12 SC (pt 111) p 83; ABACHA v. STATE (2002) 7 SC (pt 1) P1; OHWOVORIOLE v. FRN (2003)1 SC (pt.1) p1. PER BODE RHODES-VIVOUR, J.C.A.
JUSTICES
MARY U. PETER ODILI Justice of The Court of Appeal of Nigeria
BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
Between
MUSA ALIYU YAHAYA – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
BODE RHODES-VIVOUR, J.C.A. (Delivering the Leading Judgment): In the High Court of the Federal Capital Territory, holden at Abuja, the appellant was charged with 2 counts (3 and 4) in a 4 – count information as follows:-
COUNT ONE:
That you, Akpama Uket (m) on or about 8th May 2004, at Abuja, did corruptly promise Mr. Ndudin Iruakazi, the sum of N200, 000 (Two Hundred Thousand Naira) in order to talk to the Director and the Assistant Director vetting in the Department of State Services so as to assist one Musa Aliyu Yahaya to obtain a clean security clearance for appointment with the Economic And Financial Crimes Commission and you thereby committed an offence contrary to and punishable under section 9(1) (b) of the Corrupt Practices And other Related Offences Act 2000.
COUNT TWO:
That you, Akpama Uket (m) on or about 8th May 2004, at Abuja, did offer to give the sum of N200.000.00 (Two Hundred Thousand Naira) as gratification to a public officer namely; Mr. Ndudin Iruakazi as an inducement for him to show favour to Musa Aliyu Yahaya by assisting him to obtain a clean security clearance for appointment whenever his name is submitted for vetting to the Department of State Services and you thereby committed an offence contrary to and punishable under section 18 (d) of the Corrupt Practices And other Related Offence Act 2000.
COUNT THREE:
That you, Akpama Uket (m) and Musa Aliyu Yahaya (m), on or about 13th May 2004, at Abuja, conspired with each other to give the sum of N100,000.00(One Hundred Thousand Naira) to Mr. Adebayo Adele for him to show favour to Musa Aliyu Yahaya by assisting him to obtain a clean security clearance for his appointment with the Economic And other Financial Crimes Commission, and you thereby committed an offence contrary to section 26 (1) (c ) and punishable under section 9(1) of the Corrupt Practices And other Related Offences Act 2000.
COUNT FOUR:
That you, Akpama Uket (m) and Musa Aliyu Yahaya (m), on or about 13th May 2004, at Abuja, did give the sum of N100,000.00 (One Hundred Thousand Naira) to Mr., Adebayo Adele for him to show favour to Musa Aliyu Yahaya by assisting him to obtain a clean security clearance for his appointment whenever his name is submitted by the Economic And Other Financial Crimes Commission, EFCC to the Department of State Services for vetting and you thereby committed on offence contrary 10 and punishable under section 9(1) of the Corrupt Practices And other Related Offences Act 2000. Pursuant to sections 6 and 36(5) of the Constitution, and Section 185 of the Criminal Procedure Code, and under the inherent jurisdiction of the court the accused/appellant filed an application to quash the above information.
In the trial court the appellant was the 2nd accused person. The grounds upon which the application to quash the application was brought reads as follows:-
(1) The proof of evidence does not disclose any prima facie case or any case at all against the 2nd accused/applicant warranting or requiring him to be called upon to stand trial in respect of counts/charges, three and four.
(2) The proof of evidence does not contain the written statements of any of the 5 prosecution witnesses intended to be called at the trial of the 2nd accused/applicant.
(3) The entire charges/counts, if juxtaposed with the proof of evidence and or the list of witnesses would clearly demonstrate that the arraignment of the 2nd accused/applicant based on the said counts/charges constitute a gross abuse of court process.
The application was refused by Oniyangi J. Dissatisfied with the learned trial judge refusal to quash the information the appellant was compelled to appeal to this Court.
On the 3rd of August 2005 the appellant filed a Notice of Appeal containing eleven grounds of appeal.
Both sides filed and exchanged briefs of argument as provided by Order 6 rules 2 and 4 (1) of the Court of Appeal Rules. At the hearing on the 2nd of November 2006 learned Counsel for the appellant, MR. Ola Olanipekun adopted his brief and urged us to allow the appeal, set aside the Ruling of the lower Court, and quash the charge/s against the appellant.
MR. S. Kado, the learned Counsel for the respondent urged us to dismiss the appeal.
In the appellants brief four issues were formulated and presented as arising for determination in the appeal. They are:
ISSUE NO.1
Considering the application for Leave to prefer a charge, the totality of the proof of Evidence, coupled with the statement of the accused person, whether the trial Judge was not patently wrong in holding that a prima facie case has been established and consequently granted Leave to the prosecution to prefer a charge against the accused/appellant.
ISSUE NO.2
Having regards to the fact that the charge preferred against the accused/appellant is fundamentally and Incurably defective, coupled with the fact that the complainant/Respondent filed no counter affidavit in response to the application of the accused/appellant praying for an order of the trial court to quash the charge or counts prepared against him, whether the learned trial Judge was not wrong in dismissing the accused/appellants application.
ISSUE NO.3
Whether or not the learned trial Judge can gratuitously or suo motu amend a charge prepared against the accused/appellant after taken arguments from Counsel to the parties In respect of an application asking for the quashing of the charge without any of the parties seeking for an amendment of the charge or allowed to address the court on the desirability or otherwise of the amendment
ISSUE NO.4
Considering the circumstances of this case, whether or not the trial court can compel the accused/appellant to make a fresh plea and face trial in respect of the vague, nebulous and ambiguous charge as amended by the trial court.
Learned Counsel for the respondent submitted three issues for determination in the appeal.
They are:
ISSUE NO.1
Whether the learned trial Judge correctly exercised his discretion in granting Leave to the prosecution to prefer charge against the appellant.
ISSUE NO.2
Whether having regard to the facts of the case and in the absence of a counter affidavit the learned trial judge was right in dismissing the application to quash the charge.
ISSUE NO.3.
Whether the learned trial judge was right in amending counts 3 and 4 of the charge at the stage he did it and taking of plea of the appellant.
The Court of Appeal is free to adopt or even formulate issues that would determine the real complaints in an appeal. See IKEGWUOHA v. OHAWACHI (1996) 3 NWLR pt 435 P 146.
ADUKU v. ADEJOH (1994) 5 NWLR pt 346 P 582.
I shall in the circumstances rely on the issues formulated by the appellant. I adopt them.
ISSUE NO.1
Learned Counsel observed that the application for Leave to prefer criminal charge contained only three items to wit:
(a) Copy of the charge
(b) Names and addresses of witnesses
(c) Proofs of evidence.
Contending that the application did not contain the statement of the accused person and that a dispassionate and painstaking consideration of the contents of the proof of evidence and statement of the accused person will reveal that Leave ought not to have been granted by the trial court. He argued that the statement of proof of evidence does not disclose a case to warrant the accused/appellant to stand trial because the evidence to be given by the five prosecution witnesses are so contradicting, manifestly unreliable, illogical and unreasonable.
Relying on:
ABACHA v. STATE (2002) NWLR pt 779 P 437,
IKOMI v. STATE (1986) 3 NWLR pt 28 P 340,
OHWOVORIOLE v. F.R.N (2003) 2 NWLR pt 80 3 P 176.
He concluded that there is no prima facie case against the appellant.
Learned Counsel for the respondent observed that in the application for Leave to prefer criminal charge the respondent (prosecution) relied on the purposed charge/s, names and addresses of witnesses, the proof of evidence and the statement of the accused person (appellant). He submitted that the materials placed before the court by the respondent were sufficient to support the application for leave to prefer criminal charge/so Relying on
R v. IGUCHE (1959) 4 FSC P 64, IKOMI v. STATE (1956) 3 NWLR pt 28 P 340.
ABACHA v. STATE (2002) NWLR pt 779 P 437.
He further submitted that the learned trial Judge exercised his discretion to grant Leave properly and that he was right in refusing to quash the charge against the appellant.
Section 185 (b) of the Criminal Procedure Code provides that:-
“No person shall be tried by the High Court unless
(a) …
(b) a charge is preferred against him without the holding of a preliminary inquiring by Leave of a Judge of the High Court.”
An application for Leave to prefer criminal charge is made pursuant to section 185 (b) of the Criminal Procedure Code. Under the said rules the application shall be accompanied by a copy of the charge brought to be prepared, names of witnesses who shall give evidence at the trial, proof of evidence, i.e. written statement of witnesses and accused person which shall be relied on at the trial.
The applicant who must be the Attorney-General of the Federation or of a State (depending on the nature of the charge) or a counsel in his office acting of his behalf shall also inform the court that no application for such Leave has been made previously in the case and that No preliminary investigation is being conducted in any magistrate court. Acting under the said Rules the trial judge has discretion to grant or refuse the application, and this discretion can only be exercised after the trial judge examines the proof of evidence and all the documents filed in support of the application. The court order on the application for Leave to prefer charge is on page 46 of the Record of Appeal. It reads:-
“Upon reading me (sic) Sanusi Kado Esq. counsel for complainant application for Leave is preferred, (sic) a criminal charge with the proof of evidence and attached statement of the accused.
LEAVE IS HEREBY GRANTED to the applicant to prefer a criminal charge against the accused.
AKPAMA UKET and MUSA ALIYU YAHAYA forthwith “.
The following documents were filed with the application for Leave to prefer the charge:
(a) a copy of the charge;
(b) list of prosecution witnesses;
(c) proof of evidence (not written statements) of the said witnesses.
(d) Written statement under caution of the accused/appellant. See pages 1-36 of the Record of Appeal.
Before it can be said that the learned trial judge exercised his discretion judicially and judiciously, that is to say with sufficient, correct and convincing reasons and not on his whim and fancy he must have examined all the material before him and considered the applicable Law. See U.B.A. LTD v. STAHIBU GMBH and co. KG 1989 6 SC (pt.1) p22.
My lords, the appellant was charged with conspiracy to commit an offence under the Corrupt Practices And other Related Offences Act 2000 and giving as gratification the sum of N100,000.00. See counts 3 and 4.
In the appellant’s statement on page 34 – 35 of the Record of Appeal he admitted giving the sum of N100,000.00 to ADS vetting at SSS office. The five prosecution witnesses are 1. BAKO, a Deputy Superintendent of Police, The sum of N100, 000.00 gratification and other relevant documents and exhibits recorded in the course of investigation will be tendered through her together with the statement of the appellant.
N. IRUAKAZI, ADEBAYO ADELE, J. NWACHUKWU and C. OJOBOR would all give damaging evidence against the appellant. See pages 5-8 of the Record of Appeal.
In my respectful view the learned trial judge was correct to grant the respondent Leave to prefer a criminal charge against the accused/appellant since there are clear particulars and facts to justify the exercise of his Lordships discretion to grant Leave.
I now turn to the refusal of the trial judge to quash the charge. Once the facts in the information discloses a prima facie case the information would not be quashed. In AJIDAGBA V. IGP (1958) SCNLR p 60 the term prima facie was explained thus:-
“what is meant by prima facie (case).
It only means that there is ground for proceeding… But a prima facie case is not the same as proof which comes later when the court has to find whether the accused is guilty or not guilty ….. and the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused”,
A prima facie case is established where after examining the proofs of evidence there is something that requires an explanation from the appellant. That is to say the appellant/accused person must be sufficiently linked to the offence and an explanation is necessary from him at the trial.
See IKOMI v. STATE (1986) INSCC Vol. 17 P 730.
R v. OGUCHE (1959) 4 FSC P 64. Where on the other hand the facts do not disclose a prima facie case the information must be quashed.
See OKORO v. STATE (1988)12 SC (pt 111) p 83; ABACHA v. STATE (2002) 7 SC (pt 1) P1; OHWOVORIOLE v. FRN (2003)1 SC (pt.1) p1.
In my view the learned trial judge was correct to refuse to quash the information.
I shall now take ISSUES NOS. 2, 3 and 4 together. The issues therein are to do with the defective charge/s, counts 3 and 4. the trial judge amending the said charge/s suo motu, the fresh plea of the appellant/accused person to the charge, and the non filing of counter affidavit by the respondent.
I shall take the non filing of counter affidavit by the respondent first.
Learned counsel for the appellant observed that since the respondent did not file a counter affidavit, the deposition in the affidavit in support, particularly that the appellant did not apply for any job is deemed admitted. Reliance was placed on OGAR v. JAMES (2001) FWLR (pt 67) P 930; UNIVERSITY OF ILORIN v. OYALANA (2001) FWLR (PT83) p 2193.
Learned counsel for the respondent argued that the preliminary objection raised by the appellant in his application (on pages 37 to 40 of the Record of Appeal) was purely on ground of Law and the reply was on point of Law.
He submitted that in this type of application the filing of affidavit is unnecessary. Reference was made to ABACHA v. STATE (2002) 11 NWLR (pt.779) P 437 at p486.
The position of the Law is that where facts deposed to in an affidavit have not been controverted such facts must be taken as true. See ALAGBE v. ABIMBOLA (1978) 2 SC P 39; EGBUNA v. EGBUNA (1989) 2 NWLR pt.106 P 774.
Where no reply is filed to a counter affidavit the facts therein are deemed admitted and conceded by the other party. See J. UNANGANGA v. M.G. IMO STATE. (1987) 3 NWLR pt.59 P 123.
Depositions in affidavits must address or explain crucial and material issues. It would thus be unnecessary to file a counter affidavit or reply affidavit to controvert vague or irrelevant depositions of fact or if the affidavit is frivolous or unbelievable. For example that xmas day is 10th of November. Also depositions in an affidavit may be rejected, or there would be no need to controvert it where there are no supporting exhibits.
Motions should be supported by affidavits. Where they are not the application would be said to be naked. An application to quash information is in the nature of a preliminary objection. In this type of situation affidavits are unnecessary. What is important is for the applicant to state the grounds for the preliminary objection.
Proofs of evidence are served to give the accused person an opportunity of knowing what the prosecution witnesses are coming to court to say against him. It is the duty of the judge to examine the entire proof of evidence to see if he can conclude that a prima facie case of the offences charged has been made out against the accused person. See EDE v. STATE (1977) 1 F.C.A. P 95 at P 115.
Only facts and events are taking unto consideration when examining the charge/s
In the light of all that I have been saying it becomes very clear that an affidavit in support of the application to quash the information need not be controverted by a counter affidavit.
THE CHARGE
Learned counsel for the appellant argued that the learned trial judge ought to have quashed or struck out counts 3 and 4 as being bad for ambiguity instead of amending them. He referred to OKEKE v. POLICE (1965) 2 ALL NLR P 81; ANAEKWE v. MASHASHA (2001)12 NWLR pt 726 P 70.
Learned counsel for the respondent submitted that the learned trial judge was right to invoke the provisions of sections 206 to 209 of the Criminal Procedure Code in correcting the section of the Law under which the appellant was charged to read section 9 (1) (b) instead of section 9 (1) of the corrupt Practices And other Related Offences Act 2000. Reliance was placed on OSUALALE v. THE STATE (1991) 8 NWLR pt 212 P 770.
The appellant was charged in counts 3 and 4 for offences contrary to section 9(1) of the Corrupt Practices And other Related Offences Act 2000. Section 9(1) supra does not prescribe any penalty for any wrong act. The trial judge saw this omission and amended both counts to read inter alia, punishable under section 9(1) (b) and not 9(1). His Lordship relied on the provisions of Section 206- 209 of the Criminal Procedure Code.
Indeed the provisions of Sections 206 – 209 of the Criminal Procedure Code enables the court to alter or add to any charge at any time before judgment is delivered. Alteration of charge/s includes the framing of a new charge in place of the original one, See OKWECHIMA v. POLICE (1956) 1 F.S.C P 73, and a charge can be amended before final address but before judgment is delivered. See R v. KANO and ARISAH (1951) 20 NLR P 32.
Amendment of charge would be allowed provided there is no injustice to the accused person. There would be no injustice to the accused person where he is called upon immediately the amendment is made to plead to the altered or new charge/s, Failure to call on the accused person to plead to the amended or new charge would render the entire proceedings, no matter how well conducted and decided a complete nullity.
See R. v. ERONINI (1951) 14 W.A.C.A. p. 366; POLICE v. ALAO (1959) W.R.N.L.R P 39; ADISA (1965) N.M.L.R P 144.
In this case, trial has not commenced, and immediately after the learned trial judge amended Section 9 (1) to read Section 9(1) (b) his Lordship directed that the said counts 3 and 4 should be explained to the appellant.
This was done and his plea was taken. See pages 72 to 74 of the Record of Appeal. I hold that the trial judge was correct to amend the charge and followed correctly the position of the Law by allowing the appellant/accused to make a fresh plea to counts 3 and 4.
In the circumstances there was no injustice to the appellant.
Finally, the Corrupt Practices And other Related Offence Act 2000 is an existing Law, it being an Act of the National Assembly.
The considered Ruling of the learned trial judge addressed all relevant issues and I agree with his Lordship that the application of the appellant to quash the information lacks merit.
In the end this appeal lacks merit. It is hereby dismissed.
There shall be no order on costs.
MARY U. PETER-ODILI, J.C.A.: I agree with the judgment of my learned brother, Bode Rhodes-Vivour JCA having had the privilege of reading that judgment in draft. By this appeal on the application in the court below, the learned trial Judge seems to be called upon to use a yardstick other than the judicious and judicial exercise of his discretion. I base the above observation on the fact that in refusing to quash the charge, all the materials upon which the Judge would be authorised to place his decision as to whether or not a prima facie case was made out to warrant proceeding with the prosecution of the accused/appellant were present and where the trial Judge as in this instance found that the answer was in the positive then the next step would be for full trial so that accused would state his side of the case in defence. See R v. Oguche (1959) 4 FSC 64.
Indeed this is one of the examples where an appellate court will not interfere with a lower court’s decision. See In Re Adewunmi & ors. (1988) 3 NWLR (pt. 83) 483.
On this grouse that the trial court had amended the charge suo motu which Appellant said should render the trial a nullity. That approach did not take cognisance of Sections 206 – 209 of the Criminal Procedure Code which enable the court to alter or add to any charge at any time before he delivers judgment. Of course alteration includes framing of a completely new charge. However the proviso at all such alterations or framing of a new charge is that accused must plead to the amended or fresh charge. See Okwechine v. Police (1956) 1 FSC73; Police v. Alao (1959) WRNLR 39.
Since the learned trial Judge took that necessary step of having the accused take plea on that amended charge, the conditions for alteration, amendment or framing of a new charge in a criminal process was complied with and that is the end of the issue of compliance with the criminal procedure in relation thereto.
For the fuller reasons stated in the leading judgment, I too dismiss this appeal as lacking in merit.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading in draft before now the judgment just delivered by my learned brother Bode Rhodes-Vivour, JCA.
In the judgment, the facts and issues raised in the appeal have been properly set down and’ well considered, I adopt the judgment as my own. I also, dismiss the appeal for the reasons given and make no order on costs.
Appearances
OLA OLANIPEKUNFor Appellant
AND
S. KADD ASSISTANT CHIEF LEGAL OFFICER Federal Ministry of JusticeFor Respondent
