OLUFEMI ADEMOLA BABALOLA v. FEDERAL REPUBLIC OF NIGERIA
(2014)LCN/7138(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of April, 2014
CA/I/155/2013
RATIO
WHETHER IN AN INTERLOCUTORY MATTER, THE MERITS OF THE CASE MAY BE ADDRESSED BY THE PARTIES
The law is trite that in an interlocutory matter, parties must not only shy away from the merits of the matter but must completely refrain from touching the merits. Resolving whether the ingredients of the offences have been proved or not, (on the face of the proof of evidence and the charge) would be determining the substantive issues before the court. I will confine myself to the appeal against the lower court’s refusal to quash the charge against the Appellant. See, KOTOYE V. SARAKI (1993) 5 NWLR (PT. 296) 710 at 721. Per CHIDI NWAOMA UWA, J.C.A.
EFFECT OF A CHARGE NOT CONTAINING THE EXACT WORDS USED IN THE CHARGING SECTION
It is trite that a charge which does not contain the exact words used in the charging section is not necessarily bad if the accused person is not misled, see IJOMA v. QUEEN (1962) 2 SCNLR 157; OBUMSELU V. COMMISSIONER OF POLICE (1958) SCNLR 468, COMMISSIONER OF POLICE V. OKAYEN (1964) 1 ALL NLR 305 which were applied in ESSIEN v. COP (1996) 5 NWLR (pt. 449) Page 489 at 499 paras. E-G. Per CHIDI NWAOMA UWA, J.C.A.
WHETHER CONSIPIRACY AND THE ACTUAL COMMISSION OF THE OFFENCE ARE DISTINCT OFFENCES
The definition of conspiracy is not in issue but, it is a separate offence which precedes the actual commission of the principal offence. Therefore, acts done or omitted to be done can in pursuance of conspiracy be punished separately from the commission of the substantive offence. Conspiracy and the actual commission of the offence are clear and distinct offences independent of each other. See, OBASANJO-BELLO V. F.R.N. (2011) 10 NWLR (PT. 1256) 605 at 626, paras. C-D and ATANO & ORS V. A. G. (BENDEL) (1988) 2 NWLR (PT. 75) 201 at 232. Per CHIDI NWAOMA UWA, J.C.A.
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
OLUFEMI ADEMOLA BABALOLA Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Oyo State presided over by O. A. Boade, J. on 12th December, 2012 wherein the court refused to quash the charge against the Appellant herein, in Charge No. I/5EFCC/2011 on the ground that the proof of evidence before the lower court did not disclose a prima facie case against the Appellant.
The background facts are that, the Appellant, who is the 3rd Accused person in the lower court along with other accused persons were alleged to have conspired to defraud the Government of Oyo State by the award of several contracts without budgetary provisions, flouting of Government rules on award of contracts without following due process. It was alleged that the contracts were awarded without passing through the State Tenders Board and not deliberated upon by the Oyo State House of Assembly for inclusion in the budget of Oyo State Government. It was also alleged that none of the 33 Local Government Councils in Oyo State said to have paid for the contracts provided for the contracts in their budgets.
The charge against the Appellant in the lower court is for conspiracy in counts 1 and 5 with the 1st and 2nd accused persons, while counts 6 and 7 deal with obtaining by false pretence.
The Appellant filed an application in the lower court where he sought an order quashing the charge against him on the ground that the proof of evidence and the witness’ statements do not disclose any prima facie case or offence against him.
The lower court in determining the application dismissed same and held that the proof of evidence disclosed a prima facie case against the Appellant.
From his nine (9) grounds of appeal in his Amended Notice of Appeal, the Appellant distilled three (3) issues for the determination of the appeal. They are:
“(i) Whether the learned trial judge was right in relying on additional proof of evidence to determine and come to the conclusion that there is a prima facie case against the Appellant? Grounds 2, 3, 7;
(ii) Whether in law, count 5 dealing with conspiracy to obtain by false pretence is incompetent in the face of count 6 dealing with the commission of the substantive offence of obtaining by false pretence? Ground 9.
(iii) Whether in any event, the entire proof of evidence disclosed the essential ingredients of the offences, to warrant the criminal complaints against the Appellant proceeding to trial? Grounds 1, 4, 5, 6 and 8.”
The Respondent on its part recouched the Appellant’s issue one and adopted issues two and three as follows:
“1. On the totality of the proceedings as revealed on the record of appeal, did the lower court only rely on the additional proof of evidence to arrive at the conclusion that, there is a prima facie case against the Appellant’s Grounds 2, 3 and 7?
2. Whether in law, count 5 dealing with conspiracy to obtain by false pretence is competent in the face of count 6 dealing with the commission of the substantive offence of obtaining by false pretence? Ground 9.
3. Whether in any event, the entire proof of evidence disclosed the essential ingredients of the offences, to warrant the criminal complaints against the Appellant proceeding to trial? Grounds 1, 4, 5, 6 and 8.”
In arguing the appeal, the learned Senior Counsel Lateef O. Fagbemi (SAN) adopted and relied on his brief of argument dated 10/11/13 filed on 11/11/13 and his reply brief dated 11/2/14 filed the same day in urging us to allow the appeal and dismiss the charge.
The Appellant’s first issue challenged the learned trial judge’s action in relying on the additional proof of evidence in his consideration of the application of the Appellant, to quash the criminal charges filed against him. It was argued that at the stage or point in time when the charge was filed, the learned trial judge had the power not to allow the prosecution to proceed if, he was satisfied that, the case against the Appellant could not be sustained, having regard to the proof of evidence. While relying on Section 340(2) (b) of the Criminal Code Laws of Oyo State, Cap.39 it was submitted that no information for an indictable offence could be filed except with the mandatory direction or consent of the judge of the High Court. Further, that as at 22/12/11 when the Appellant sought that the charges against him be quashed because the essential ingredients of the offences were alleged not to have been made out in the proof of evidence, the issue of jurisdiction ought to have been resolved first. See, STATE V. ONAGORUWA (1992) 2 NWLR (PART 221) 33 AT 46.
It was the submission of the learned counsel that the prosecution ought not to proceed with a criminal charge, additional proof of evidence subsequent having come into being after the judge had allowed the prosecution to file and proceed with a criminal charge which should not be utilized to determine whether the charge is competent or not, it was argued that such additional proof of evidence ought not be allowed; see, IKOMI V. STATE (1986) 1 NSCC VOL. 17 PAGE 730 AT 743 PARAGRAPHS 5 – 15. It was the contention of the learned senior counsel that the lower court was in error when it relied on the additional proof of evidence to conclude that, there is a prima facie case against the Appellant.
The additional record was also termed as “worthless” in that it was dumped on the court without regularization of same, orally or vide a motion.
On his second issue, it was the submission of the learned counsel that it was wrong for the prosecution to have charged an accused person for conspiracy to commit an offence, when he has not been charged with the commission of the substantive offence, and that the accused ought to be discharged for this reason, on the conspiracy charge, see, CLARK V. THE STATE (1986) 4 NWLR (PART 35) 381 AT 401 PARAGRAPHS B-G and AMACHERE V. NIGERIAN ARMY (2003) 3 NWLR (PART 807) 256 AT 281 – 282. On this basis, count 5 relating to the conspiracy charge was argued to be incompetent. We were urged to quash count 6, borne out of the same transaction.
The appellant’s third issue concerned counts 1, 5, 6 and 7 of the charges for which the Appellant is standing trial. The main issue is whether the learned trial judge rightly reached his decision that there is a prima facie case against the appellant. It was the contention of the learned Senior Counsel that challenging the competence of the charges against the Appellant has nothing to do with the credibility of a piece of evidence but, rather that the essential ingredients of the charges had not been met or satisfied by the contents of the proof of evidence. It was argued that the reasoning behind quashing an indictment which has not disclosed a prima facie case against an accused person is to prevent an abuse of court process and oppressive prosecution, see, ABACHA V. STATE (2002) 11 NWLR (PART 779) 437 AT 485, OHWOVORIOLE V. F.R.N. (2003) 2 NWLR (PART 803) 176 AT 194-195.
It was submitted that every charge and the proof of evidence must show with clarity the ingredients of the offence, so as to obviate speculation as to the offences allegedly committed by an accused person. See, ABACHA V. STATE (SUPRA) AT PAGE 489.
It was argued that suspicion is not enough to establish a prima facie case, see, GRANGE v. F.R.N. (2010) 7 NWLR (PART 1192) 135 AT 169-170 and ABACHA V. STATE (SUPRA). We were urged to follow the decision in IKOMI v. STATE (1986) (SUPRA) in deciding whether a prima facie case has been made out. Further, that the prosecution must prove the allegation beyond reasonable doubt. See, JOSEPH V. STATE (2011) 16 NWLR (PART 1273) 226 AT 241.
The learned senior counsel in his submissions highlighted and discussed the contents of counts 1, 5, 6 and 7 of the charge before the trial court, the ingredients that need to be proved in each of the alleged offences in these grounds and cited and relied upon several legal authorities to buttress his argument mainly, that the essential ingredients of the offences were missing. In conclusion, it was submitted that the proof of evidence did not bring out the essential ingredients of the offence and link the Appellant with the offences alleged to have been committed. The charges were said to be oppressive and an abuse of court process which this court must disallow.
In response, the learned senior counsel Godwin Obla (SAN) adopted and relied upon his Respondent’s brief dated 28/1/14 filed on the same day in urging us to dismiss the appeal. The preliminary objection to ground 8, argued under issue two, at pages 5 – 10 of the brief was withdrawn and struck out.
The learned senior counsel adopted the Appellant’s first issue and recouched it as follows:
“On the totality of the proceedings as revealed on the record of appeal, did the lower court only rely on the additional proof of evidence to arrive at the conclusion that, there is a prima facie case against the Appellant?”
It was submitted in support of this issue that, the lower court did not only rely on the additional proof of evidence filed on 20th February, 2012 by the Respondent but, also on the proof of evidence filed on 10th October, 2011 in arriving at its decision that a prima facie case has been made out against the Appellant, pages 606 – 608 of the records of appeal. The statements of the accused persons referred to by the lower court were said to have formed part of the proof of evidence filed along with the charge against the Appellant on 10th October, 2011 and not part of the additional records, the statements are at pages 13 – 48 of the printed records. The minutes referred to by the lower court at pages 306 and 320 of the information (page 3, paragraph 4.04 of the Respondent’s brief) were also said to have been extracted from the proof of evidence filed along with the charge, pages 278 and 293 of the records of appeal.
It was the contention of the learned senior counsel that the lower court utilized mainly the proof of evidence filed along with the charge against the Appellant. It was conceded that the lower court cannot, make use of the additional proof of evidence in determining whether or not a prima facie case has been made out against the Appellant. It was argued that the lower court is not forbidden from making use of the proof of evidence filed along with the charge in determining whether a prima facie case is made out against the Appellant where the Respondent filed additional proof of evidence.
It was further argued that if the lower Court made use of the additional proof of evidence in arriving at its decision that a prima facie case has been made out, such error, if any was argued to have led to a miscarriage of justice since the reliance was also placed on the proof of evidence attached to the charge, and ought not to be allowed to nullify the lower Court’s decision, since the said error does not substantially affect the decision. It was the submission of the learned Senior Counsel to the Respondent that did not cite any law that states that the leave of Court must first be obtained before an additional proof of evidence could be filed at the lower Court.
Also, that the issue of whether or not the Respondent required the leave of the lower Court before it could file an additional proof of evidence was not raised or discussed by the Appellant at the lower court. Being, a new issue, it was submitted that the leave of court is required, thus making their issue incompetent and should be discountenanced.
In arguing his issue two, it was argued that only counts 5 and 6 of the charge before the lower Court were attacked under this issue. It was argued that counts 5 and 6 are separate offences, of conspiracy and the actual offence for which the Appellant was charged with and could be charged and punished separately under these counts, see OBASANJO-BELLO V. F.R.N. (2011) 10 NWLR (pt. 1256) 605 AT 625; ATANO & ORS V. A.G. (BENDEL) (1988) 2 NWLR (PT. 75) 201 AT 232. The case of CLARK vs. THE STATE (1986) 4 NWLR (pt. 35) 381 AT 401 PARAGRAPHS B-G was distinguished from the present one in that in the above case, the conspiracy count was lumped with a count for the commission of the actual offence where the evidence to be relied upon in proving the two counts are the same and there are no independent evidence to prove the two counts.
On the Respondent’s third issue, which touched on counts 1, 5, 6 and 7 of the charge before the lower Court, in a similar manner as argued earlier by the learned Senior Counsel to the Appellant, it was submitted that these counts did not contain the basic ingredients of the offences charged, see, ASUGUO V. THE STATE (1967) ALL NLR 132 and ESSIEN vs. COP (1996) 5 NWLR (pt. 449) PAGE 489 AT 449. It was argued that a charge which does not contain the exact words used in the charging section is not necessarily bad, if the accused person is not misled, reliance was also placed on Sections 166 and 167 of the Criminal Procedure Law applicable to Oyo State. See also, TIMOTHY vs. F.R.N. (2013) 4 NWLR (PT. 1344) 213 AT 23 – 31.
It was argued that from the proof of evidence the Appellant has a lot of explanation to make to the lower Court in connection with the charge and that a Court will not quash a charge because an examination of the proof of evidence has led to the conclusion that the prosecution will not succeed, see, IKOMI V. STATE (SUPRA). It was argued that the Appellant ought not to have concentrated in his Brief of Argument on the ingredients required for proof of the offences charged but, on whether a prima facie case has been made out against him, that is: when he could be linked with the offences charged in the lower Court and that proof of same should be left for the actual trial of the case, then, the issue of proof beyond reasonable doubt would arise and be determined by the lower Court.
It was argued that the Appellant’s case in the lower court is different from what is being argued now on appeal to the effect that at the lower Court, the issue was that counts 5, 6 and 7 does not disclose the ingredients or elements of the offence on the ground that the Oyo State Joint Local Government Account is not a person known to law, is different from the argument now canvassed by the Appellant in this Court that there is nothing in the proof of evidence to link the Appellant with counts 5, 6 and 7. The Appellant was urged to be consistent with the case he is presenting in the lower Court and this Court. See, ABEOSUN V. GOV. (EKITI STATE) (2012) 4 NWLR (PT. 1291) PAGE 581 AT 607 and OSUJI V. EKEOCHA (2009) 16 NWLR (PT. 1166) 81 AT 111 – 112. We were urged to dismiss the argument or submission now being canvassed by the Appellant under counts 5, 6 and 7.
Mr. Godwin Obia, SAN, on behalf of the Respondent went into how the consultant was appointed by the 1st accused, the approval of the payments made to the consultant and how much was paid, in line with the submissions on behalf of the Appellant. The offence of conspiracy was once again defined. In summary, the learned Senior Counsel submitted that all the arguments proffered on behalf of the Appellant would be relevant if the Respondent calls witnesses and fails to discharge the burden of proof placed on him. Further, that the submissions in the Appellant’s Brief are premature at this stage as they all deal with proof. It was submitted that this interlocutory appeal has frustrated the trial of the Appellant.
In his Reply Brief, the learned Senior Counsel, Prince Lateef O. Fagbemi, SAN, in respect of the Respondent’s first issue, emphasized once again that materials that came into being after the charge had been filed cannot be considered, see, IKOMI vs. STATE (1986) (SUPRA). It was also recapped that the Respondent’s learned Senior Counsel conceded to the trite position of the law as to the irrelevance of additional proof in determining the existence of a prima facie case. It was argued that this is enough to resolve this issue in favour of the Appellant. Further, it was argued that even though other materials in the main proof of evidence were utilized to arrive at its decision, reliance on the additional proof in the first place was said to be a great error which vitiated the reasoning of the learned trial Judge. The issue of essential ingredient of offence not being made out by the Respondent was re-argued at length.
We were urged to rely on the mutual position of the parties that, the additional proof of evidence, containing the statement of Tahir Usman was wrongly relied on by the trial Judge. The issue of other materials being in existence to sustain the charge (if any) was said not to be relevant to resolve the point put forward in the Appellant’s first issue.
The submissions under the second issue had been proffered in the main brief, I need not recap same. Similarly, the submissions under the third issue had been put forward in the main brief, as to the ingredients to be proved in the charges against the Appellant in the lower Court. It was argued that there are no facts capable of proving the case of conspiracy against the Appellant. We were urged to allow the appeal.
The issues as formulated by the parties are similar except that the Respondent recouched the Appellant’s first issue. I would adopt the issues as formulated by the Appellant, the Respondent also having adopted the Appellant’s second and third issues.
The Appellant’s first issue is whether the learned trial Judge was right in relying on the additional proof of evidence to determine and to conclude that, there is a prima facie case against the Appellant. The Appellant’s grouse under this issue is that the learned trial Judge utilized the additional proof of evidence in considering the Appellant’s application to quash the criminal charges against him. The learned Senior Counsel Chief Godwin Obla (SAN) undoubtedly conceded the trite position of the law that the lower Court cannot make use of the additional proof of evidence in determining whether or not a prima facie case has been made out against the Appellant in line with the decision in the case of IKOMI vs. STATE (1986) (SUPRA). This aspect of the submissions of the learned Senior Counsel to the Appellant having been conceded, there would be no need to go into it, the position of the law concerning utilizing additional proof of evidence in determining whether a prima facie case has been made out against the Appellant has been agreed to by the Respondent. The resultant effect is that the manner in which the additional proof of evidence was brought to Court (whether proper or not) would no longer be worthwhile to examine. The learned Senior Counsel to the Appellant having argued earlier in his submissions that the additional proof of evidence was dumped on the court without being regularized orally or vide a motion, this line of argument is hereby discountenanced as it is irrelevant and having not been raised at the lower court. Also, the additional proof was not objected to when put forward in the trial court.
In the submissions of the learned senior counsel to the Respondent, it was made clear that the lower court in determining whether a prima facie case had been made out against the Appellant did not only make use of the additional proof that was challenged but, relied mainly on the proof of evidence filed along with the charge on 10th October, 2011. At page 607 of the printed records the learned trial judge stated the correct position of the law to the effect that the proof of evidence must disclose prima facie case against the accused person for a prima facie case to be established; otherwise the charge would be struck out. The learned senior counsel did not dispute the fact that the lower court utilized other materials, such as the proof of evidence filed along with the charge containing the statement of the C.S.P. Tahir Usman who led the investigating team of the EFCC on the matter, the statements of the three accused persons and the minutes at pages 278, and 293 of the information in arriving at its decision. The Statements of the accused persons are vital, filed with the charge against the Appellant on 10th October, 2011, pages 13-48 of the printed records. These are not part of the additional proof of evidence objected to by the Appellants which was filed on 22/12/11.
The learned senior counsel Prince Lateef O. Fagbemi (SAN) in his submissions did not make out or argue that the learned trial judge could not or ought not to have made use of the proof of evidence filed along with the charge in determining whether a prima facie case has been made out against the Appellant or not, where additional proof has been filed. I am not aware of any law and the learned senior counsel with respect did not cite any to convince us that the lower court erred in utilizing the proof filed along with the charge. It is not in dispute as to the position of the law, that the lower court ought not to have relied upon the additional proof of evidence, but that was not the sole material used in arriving at its decision.
The learned senior counsel to the Respondent had argued that the error of the lower court using the additional proof of evidence would not lead to a nullification of the lower court’s decision. I am in agreement with this argument in that it is settled law that the error or mistake by a trial judge or court would not lead to a nullification of the entire proceedings or determine an appeal in favour of an Appellant or automatically result in the appeal being allowed. It is only when the error is so substantial, that it has occasioned a miscarriage of justice that an appellate court could or would interfere. See, SULE v. STATE (2009) 17 NWLR (PT. 1169) 33 at 64; STATE v. GWANTO (1983) 1 SCNLR 142; and ODUKWE v. OGUNBIYI (1998) 8 NWLR (pt. 561) 339. At this stage, I am of the considered view that we cannot tell if the error has occasioned a miscarriage of justice because the learned trial judge is yet to go into trial of the case. At this stage the important thing is whether from other materials in the proof of evidence filed with the charge and the statements of the accused persons, apart from the contents of the additional record, has the prosecution made out a prima facie case that would require the Appellant to answer to the charge by standing trial. At this stage it would be apt to define the requirement for the proof of a prima facie case against an accused person.
Simply, is there anything, material or information that connects the accused person with the offence charged. The subsequent proof of same is immaterial. The important thing is: is there enough material to proceed to trial? The term “prima facie” is obviously not easy and straight forward in terms of definition but, facts that reveal that a crime has been committed and show that the accused is linked with it may be considered prima facie evidence that the accused person has something to explain at the trial. That is not all, the circumstances surrounding every case must be examined. In the case of ABACHA v. STATE (2002) 11 NWLR (PT. 779) 437 at 486; (2002) 7 S.C. (Pt. 1) 1. His lordship Belgore, JSC (as he then was in this respect held thus:
“The best definition is the one proffered in an Indian case of SHER SINGH V. JITEND DRANTHEN (1931) 1 LR, 59 Calc. 275 quoted with approval by Federal Supreme Court in AJIDAGBA V. INSPECTOR-GENERAL OF POLICE (1958) SCNLR 60 as follows:
“The term, so far as we can find has not been defined either in the English or in Nigeria Courts. In an Indian case, however, we find the following dicta:-
“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 laces 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.”
Thus, if the facts in the proof of evidence filed with the charge, the minutes earlier mentioned in this judgment and the statements of the accused persons do not disclose a prima facie case as defined above, the indictment would be quashed but, in this case the learned senior counsel to the Appellant has not argued that none has been made out from these available materials, he was more concerned with the additional proof of evidence that was considered along with the other materials. I have examined the statements of the Appellant as well as those he was charged along with, at Pages 13-48 of the printed records, that of Tahir Usman who was part of the Investigating team of the EFCC at Pages 10 – 12 and others in the printed records of appeal, and I am of the considered view that a prima facie case was made out for the Appellant to answer. Proof thereof is not the issue and has not arisen at this stage. Prima facie case was also defined by this court in the case of AGBO v. THE STATE (2010) LPELR – 4989 (CA) where the decision in AJIDAGBA v. I.G.P. (1958) (supra) as defined by Abott, F. J. was relied on the Indian case of SHERSINGH V. JITENDRANATHSEN (1931) (supra) and DURU V. NWOSU (1989) NWLR (PT. 113) 24 at 43.
Further, as to whether the error of the lower court in this case of utilizing the additional record is substantial to occasion a miscarriage of justice would in my opinion be evident at and after the trial, if the trial court utilizes same in its final decision, since it is not the only available material used in holding that a prima facie case has been made out against the Appellant in line with the decision in EYIBOH v. ABIA (2012 16 NWLR (pt. 1325) p.51 at 82-83, where it was held by His Lordship Tabai, JSC thus:
“It is settled law however that not every mistake or error in a judgment necessarily vitiates that judgment. For a mistake or error in a judgment to warrant the intervention of an appellate court it must be substantial in the sense that it occasioned or likely to have occasioned some miscarriage of justice. See ONAJOBI V. OLANIPEKUN (1985) 4 SC (PART 2) 156 at 163; GWANTO V. STATE (1983) 1 SCNLR 142 at 152-153 and OJE V. BABALOLA (1991) 4 NWLR (PT. 185) 267 at 282.”
Whether the proof of evidence and all other materials would prove the alleged prima facie case as held by the trial court, would be determined at trial of the offences charged and I so hold.
On the aspect of the submissions of the learned counsel to the Appellant objecting to leave not having been obtained before the additional proof of evidence was filed at the lower court, I am of the considered but firm view that this argument should have been raised at the time the additional proof of evidence was brought in or “dumped” on the court as termed by the learned senior counsel. It was not raised at the lower court. On the other hand, the Appellant ought to have obtained the leave of court to argue same now, as it did not arise in the lower court. As a whole, I resolve the first issue against the Appellant in favour of the Respondent.
The preliminary objection argued under the second issue was withdrawn and struck out when the appeal was argued under the respective parties’ second issue. Counts 5 and 6 of the charge before the lower court were challenged that is: the charge of conspiracy to obtain under false pretence contrary to Section 1(3) of the Advanced Fee Fraud and other Fraud Related Offences Act, 2006 while Count 6 deals with the actual offence of obtaining by false pretence under the same Section 1(3) of the same Act. From the Charge before the lower court, the conspiracy charge under Count 5 is a separate offence from the, actual offence said to have been committed under Count 6 of the charge against the Appellant in the lower court. The definition of conspiracy is not in issue but, it is a separate offence which precedes the actual commission of the principal offence. Therefore, acts done or omitted to be done can in pursuance of conspiracy be punished separately from the commission of the substantive offence. Conspiracy and the actual commission of the offence are clear and distinct offences independent of each other. See, OBASANJO-BELLO V. F.R.N. (2011) 10 NWLR (PT. 1256) 605 at 626, paras. C-D and ATANO & ORS V. A. G. (BENDEL) (1988) 2 NWLR (PT. 75) 201 at 232.
The learned senior counsel had cited and relied upon the case of CLARK v. THE STATE (supra) in urging us to hold that Counts 5 and 6 ought to have been lumped together in one count, failure of which makes both counts incompetent. In my considered opinion, the above case can be distinguished from the present case in that in the former a count of conspiracy was joined with a count for the commission of the actual offence where the evidence to be relied upon in proof of the two counts are the same and there was no independent evidence to prove the two counts. The catch is that where the evidence to support the two counts is the same, there is no need for the two to be charged separately. It does not apply as a general rule that conspiracy to commit an offence and commission of the substantive offence must be, charged under one count and I so hold.
Where a charge of conspiracy can be proved separately with its independent evidence nothing in law stops a separate count of the commission of the substantive offence from being proffered against the accused person. The case of CLARK v. THE STATE (supra) is not applicable to the present case. I agree with the argument of the learned senior counsel to the Respondent that in the present case the evidence that would be used in the conspiracy charge in Count 5 is the same as that of Count 6 for the commission of the actual offence. I resolve this issue against the Appellant, in favour of the Respondent.
On the Appellant’s third issue which covers counts 1, 5, 6 and 7 of the charge before the lower court, it was argued that in respect of count one, the basic ingredients of the offence in this case, that is: the count did not include the following words: “without approval and cash backing” argued to be the essential ingredients of the offence and that the Appellant was awarded the contract without budget provision. We had been urged to hold that the court is incompetent, not having complied with Section 22(4) of the Corrupt Practices and other related Offences Act, 2000.
It is trite that a charge which does not contain the exact words used in the charging section is not necessarily bad if the accused person is not misled, see IJOMA v. QUEEN (1962) 2 SCNLR 157; OBUMSELU V. COMMISSIONER OF POLICE (1958) SCNLR 468, COMMISSIONER OF POLICE V. OKAYEN (1964) 1 ALL NLR 305 which were applied in ESSIEN v. COP (1996) 5 NWLR (pt. 449) Page 489 at 499 paras. E-G.
In my humble opinion, on the face of the charge, it is not defective, if it were, it could be cured by an amendment, which is not the case here. The charge is not bad, the important thing is whether the Appellant as an accused has been charged with an offence known to law and that the accused understands the charge for which he is to stand trial.
At page 470 of the printed records, the Appellant said he understood the charge before pleading not guilty when it was read to him. If there was any defect in the charge, in line with Section 167 of the Criminal Procedure Law, applicable in Oyo State, the Appellant should have objected at the point the charge was read before plea was taken and not now. The offence under Section 22(4) of the Corrupt Practices and Other Related Offences Act, 2000 is an offence known to law, the learned senior counsel to the Appellant has not argued that it is not.
The argument proffered on behalf of the Appellant that the lower court did not show that there was no approval and cash backing, the lower court erred when it held that a prima facie case had been made out against the Appellant with respect to count one. As I stated earlier in this judgment in determining whether a prima facie case had been made out against the Appellant, the lower court is not to decide whether there was sufficient evidence or enough evidence in the proof of evidence to convict the Appellant but, rather whether there was any evidence connecting the Appellant to the offence. Once there is any evidence connecting him to the offences charged or any allegation in the statements, upon which the Appellant can be called upon to explain his position, it is enough, proof thereof is for the trial proper. All the submission on behalf of the Appellant to the effect that the ingredients of the offences charged are not manifest on the face of the charge are irrelevant at this stage, these should be left for the trial proper. I say so because the courts have always cautioned that in resolving interlocutory issues before trial, one should be careful not to say much, especially where what is said would be a comment, opinion or part of the substantive issues. This would invade the real issue in the main trial and prejudge it. The law is trite that in an interlocutory matter, parties must not only shy away from the merits of the matter but must completely refrain from touching the merits. Resolving whether the ingredients of the offences have been proved or not, (on the face of the proof of evidence and the charge) would be determining the substantive issues before the court. I will confine myself to the appeal against the lower court’s refusal to quash the charge against the Appellant. See, KOTOYE V. SARAKI (1993) 5 NWLR (PT. 296) 710 at 721.
From the proof of evidence in my humble but firm view, the Appellant has explanation to make to the lower court in connection with the charge in the matter. It is not the law or procedure acceptable in law that a charge be quashed because from a look at the proof of evidence the prosecution would not succeed. The proof or otherwise of the charge can only be properly determined after trial. If the prosecution succeeds well and good, if it fails, it fails. Further, if from the proof of evidence as it is, the Appellant feels that no prima facie case has been made out against him at the close of trial, it makes his defence easier and indeed he could resort to a no case submission, succeed on it without a formal full defence and be discharged and acquitted.
Still on the issue of the ingredients of the offence, whether there was a budgetary provision for all the expenditures? And all other questions concerning the provisions of the Appropriation Laws of Oyo State House of Assembly or the Legislative Houses of the 33 Local Government Council Areas in Oyo State and others, all these would better manifest and be addressed at the trial. On the other hand, if the courts were to decide cases based, on proof of evidence showing the ingredients of offences have been proved on the face of it, then the courts would convict merely on the face of the statements of accused persons, the charge and proof of evidence, the courts would do away with trial. The essence of trial is proof, the previous situation cannot be done as same would make a mockery of our criminal justice system.
In my considered view, the bulk of the argument proffered on behalf of the Appellant centred on areas that could only be properly looked into and resolved after evidence has been led. It borders on proof of the offence charged. Whereas this appeal is concerned with whether the case as presented by the Respondent shows that a prima facie case has been made out against the Appellant. The case of EGWABA V. FRN (supra) relied on by the learned senior counsel to the Appellant is not applicable to the present case, in that in the above case evidence had been led and Exhibits tendered, whereas in the present case, the Respondent had not opened its case and the proof of evidence therefore had not gone under scrutiny that goes with trial. In EGWABA’s case the issue of proving the prosecution’s case beyond reasonable doubt arose because evidence had been led and Exhibits tendered. There was material for the court to determine whether the offences charged had been proved beyond reasonable doubt or not. This situation has not arisen in this case, at this stage where no evidence has been led and no exhibits had been tendered therefore, the issue of proof has not arisen. “Prima facie case” is distinct from proof “beyond reasonable doubt”. There can only be proof after evidence has been led at the trial and I so hold.
It was argued that the Appellant’s case in the lower court in respect of Counts 5, 6 and 7 is different from his arguments now on appeal. I am of the humble opinion that through evidence when led, the case in the lower court would be clear at trial, which would make any subsequent appeal clearer. As I said earlier in this judgment, if the Respondent’s case is hopeless as made out by the Appellant, it makes the defence of the Appellant an easy one. Allegations of financial crimes are sensitive in recent times and the general public who are the stakeholders as tax payers too, are curious to know the outcome of allegations against public officers. It is therefore safer that the matter goes for full trial, the subsequent outcome is immaterial, that is: proof or no proof.
Further, the issues as to who nominated the consultants, the consultancy fee paid, the deductions made from the 33 Local Governments of Oyo State and how the deductions were agreed upon with or without legislative backing would all boil down to proof of the offences charged and would require evidence at the trial for proper determination.
The onus is on the prosecution to prove the allegations against an accused during the trial, before the trial court, therefore what the Appellant sought before the lower court, that the charges be quashed is, premature. The Respondent as Prosecutor cannot prove its case based on the proof of evidence without trial. I am in agreement with the submissions, of the learned senior counsel to the Respondent that the arguments proffered on behalf of the Appellant would have been more appropriate after the Respondent calls its witnesses and fails to discharge the burden placed on it.
In conclusion, I am of the view that the proof of evidence shows that there are triable offences for which the Appellant could be and rightly called upon to answer to. If the charges are bad as alleged by the Appellant, then the case fails, and no harm is caused any of the parties but, the contrary would be the case if the Appellant’s charges are quashed before trial for the mere reason that the case might not be proved.
The Respondent made out that the Appellant’s appeal has frustrated the trial since 2011 when the charge at the lower court was filed. I agree that interlocutory appeals cause delay but, in a democratic dispensation that we are now enjoying, all perceived wrongs or abuses should be tested if confidence is to be preserved for courts as the final arbiter in people’s rights. The courts have inherent powers to ensure, whether plaintiff or defendant, prosecution or defence, as long as democratic process exists that nobody will have his rights curtailed. This right ought not to be taken away, more especially in a criminal matter all in the quest to save time and not delay the possible trial should the interlocutory challenge of the charge fail. Justice rushed is also justice denied. The third issue is resolved against the Appellant.
In the final analysis, the appeal fails and is hereby dismissed. I affirm the decision of the learned trial judge Boade, J of the Oyo State High Court delivered on 12th December, 2012 in suit No. I/5EFCC/2011 dismissing the application of the Appellant to quash the charge for lacking in merit.
Suit No. I/5EFCC/2011 is remitted back to the trial court for commencement hearing. The case should be given accelerated hearing considering the time lag between the date of the Ruling appealed against and this judgment.
MONICA B. DONGBAN-MENSEM, J.C.A: I agree with the lead judgment prepared by my learned brother Chidi Nwaoma Uwa, JCA. As stated in the lead judgment, the proof of evidence filed before the trial Court show that there are triable offences for which the Appellant could be called upon to answer to. No doubt, the Appellant is entitled to exercise his right to silence as provided under Section 36 (11) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading before now, the judgment delivered by my learned brother, C. N. Uwa, JCA.
I agree with the reasoning and conclusion by my learned brother that the appeal has no merit. It is accordingly dismissed by me.
Appearances
L. O. Fagbemi (SAN) with Maman Usman (SAN) and N. O. O. Oke (SAN) for the Appellant with A. Ogunjimi Esq., H. O. Afolabi Esq., Sikiru Afolabi Esq., L. L. Akanbi Esq., W. A. Olajide Esq., Tosin Ogwezzy (Mrs.), Segun Adebayo, R. Isamotu Esq., A. O. Oladele Esq., J. O. Abdulsalam Esq., Sunbo Durowoju (Mrs.), Afees Adebayo Esq., R. A. Amuda Esq., A. A. Ademodi Esq., H. K. Onimago Esq., and E. S. Yekini Esq.For Appellant
AND
Godwin Obla (SAN) with Olayinka Bolanle Esq., Edward Okpe Esq. and Olugbenga Bamgbose Esq.For Respondent
