PROF. KAYODE CARROLL ONI & ANOR V. FEDERAL REPUBLIC OF NIGERIA (2012)

PROF. KAYODE CARROLL ONI & ANOR V. FEDERAL REPUBLIC OF NIGERIA

(2012)LCN/5624(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of October, 2012

CA/IL/74/2008

RATIO

CRIMINAL LAW AND PROCEDURE: CHARGES: WHAT IS THE APPROPRIATE FORM AND CONTENT OF A CHARGE
In the same vein, the provision of sections 200 and 201 dealing with the forms and contents of charges respectively, found in CHAPTER XIX – CHARGES, of the Criminal procedure Code, come in handy. They state;
“200. Charges may be as in the forms set out in Appendix B modified in such respects as may be necessary to adapt to the circumstance of each case.
201(1) Every charge under this criminal code Procedure code shall state the offence with which the accused is charged.
(2) If the law which creates the offence gives it any specific names, the offence may be described in the charge by that name only.
(3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence said to have been committed shall be mentioned in the charge.
(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.PER OBANDE OGBUINYA, J.C.A.

CRIMINAL LAW AND PROCEDURE: CHARGES: SAFEGUARDS AGAINST ERRORS IN A CHARGE

At any rate, section 206 of the selfsame Code offers a saving safeguard against errors in a charge when it provides:
“206. No error in stating either the offence or the particulars required to be stated in the charge and on omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice.”
This provision, meant to mitigate the effect of errors arising from the fallibility of human beings, finds a sister, in the same mould, in the provision of section 166 of the Criminal procedure Act which was noted, by the Supreme Court, in the case of Okewu vs. FRN (2012) 1 NWLR (pt. 1305) 327 at 369.PER OBANDE OGBUINYA, J.C.A.

CRIMINAL LAW AND PROCEDURE: CHARGES: SOME ERRORS THAT CANNOT LEAD TO A CHARGE BEING VITIATED
Similarly, I am not at one with the appellants that the charges are vitiated for failure to indicate the projects or services the alleged transferred money were spent on. The appellants’ stance overlooks the fact that the act of transfer of money meant for a particular project or service to another project or service is a complete offence on its own.PER OBANDE OGBUINYA, J.C.A.

INTERPRETATION OF STATUTES: THE USE OF THE WORD “OR” IN A STATUTE

The word ‘or’, a conjunction, is deployed in-between the two verbs – transfers and spends in section 22(5) of the Act. In the interpretation of statutes, the word ‘or’ is usually construed as disjunctive, see Ndoma – Egba vs. Chukwuogor (2004) 6 NWLR (pt. 369) 382; Olaleye-Ote vs. Babalola (2012) 6 NWLR (pt. 1297) 574.PER OBANDE OGBUINYA, J.C.A.

CHARGE: A CHARGE MUST ALWAYS STATE THE OFFENCE COMMITTED AS WELL AS LINK THE ACCUSED TO THE OFFENCE
It is trite law that any information or charge preferred against an accused person must not only disclose an offence being charged, but must link such accused person with the offence charged. The evidence showing an accused person’s linkage with an alleged offence is to be gleaned from the proof of evidence placed before the court during the grant of the application for consent to prefer the charge. The evidence, which may be direct, circumstantial or confessional, need not be such that will lead to conviction or guilt of an accused person, simply put, prima facie case is sufficient. Where there exists in the proof of evidence, evidence of such prima facie case connecting an accused with the offence, then such accused person has a case to answer and he will be subjected to the rigours of full-scale trial. Contrariwise, if there is absence of prima facie case, in the proof of evidence, linking him with the crime, then he will not be put on trial and the information will be liable to be quashed. These hallowed principles of law have received the blessing of the supreme court in myriads of decided cases, see Ikomi v. State (supra)/(1986) 1 NSCC (Vol. 17) 730; Abacha v. State (supra)(2002) 11 NWLR (pt. 779) 437; Ohwovoriole v. FRN (Supra)/(2003) 2 NWLR (Pt.503) 176; Nyame v. FRN (2010) 7 NWLR (pt. 1193) 344.PER OBANDE OGBUINYA, J.C.A.

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria

Between

1. PROF. KAYODE CARROLL ONI
2. MRS. JOHNSON OLAJIDE ABOLARIN Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offshoot of the ruling of the High Court of Kwara State, Ilorin, Coram Hon. Justice M. O. Adewara, in charge No.KWS/ICPC/1/07, delivered on 26/09/2007, wherein the appellants’ preliminary objection was dismissed.
The background facts leading to this appeal, as garnered from the processes filed, are simple. The appellants were the executive director and controller of finance of the National Centre for Agricultural Mechanization (NCAM), Ilorin respectively. On 04/01/2007, the office of Honourable Attorney-General of the Federation filed an ex-parte application in the lower court for leave to prefer a 38-count criminal charge against the appellants pursuant to section 185(b) of the Criminal procedure Code. The application was moved in the lower court on 08/02/2007 and was granted. The case was then adjourned to 22/02/2007 for the arraignment of the appellants. The information was brought pursuant to section 22(5) of the corrupt practices and other Related offences Act, 2000 under the auspices of the Independent corrupt Practices and other Related offences Commission.
On that 22/02/2007, the appellants were duly arraigned before the lower court. Consequently, the appellants took their plea on each of the 38-count information and each of them pleaded not guilty to each of the counts. Thereafter, the appellants were admitted to bail and the matter was adjourned to 21/03/2007 for hearing
Subsequently, precisely on 16/04/2001, the appellants filed a notice of preliminary objection to the charge, contained on page 51 of the record, in the manner following:

“NOTICE OF PRELIMINARY OBJECTION
TAKE NOTICE that the accused persons shall at the threshold of the hearing of this case contend that the charges therein are incompetent and on the footing thereof pray that the charges be quashed and their trial be terminated forthwith for want of jurisdiction on the part of the Honourable Court.

GROUNDS FOR THE OBJECTION
1. The case is fundamentally and fatally vitiated by non-compliance with a condition precedent to valid trial in a criminal case.
2. The charges against the accused persons do not disclose any offence known to law.
3. That proof of evidence attached to the charge sheet does not disclose any prima facie case that could justifiably warrant the accused persons being made to stand trial in respect of this case.
4. The charges are misconceived in law as the law(s) under which the accused persons are charged does (do) not apply to the circumstances of the accused.
5. The charges are oppressive, vexatious and constitute abuse of court process by reason of undue and indefensible multiplicity.”
The preliminary objection was, duly, heard on 23/07/2007.
On 26/09/2007, the lower court delivered a considered ruling thereon wherein it dismissed it for want of merit as shown on pages 84 – 88 of the record of the appeal. Sequel to that dismissal, the appellants, on 09/10/2007, filed a two-ground notice of appeal, encapsulated on pages 95 – 96, wherein they prayed the court for: “An order quashing the 38-count charges for being incompetent and discharging and acquitting the APPELLANTS”. Thereafter, parties filed and exchanged their briefs of argument in line with the rules of this court.
It is pertinent to put the record straight. This is a criminal appeal. Hence, it ought to bear a criminal appeal number with the letter ‘C’ as prefix or suffix to the figure ’74’ in the number. Incidentally, the court registry gave it a civil appeal number, perhaps unknowingly. Nevertheless, that does not make it a civil appeal nor does it affect its substance as a criminal appeal.
The appeal was heard on 24/09/2012. Prior to that date, 24/09/2012, the appeal came up on 28/06/2012 when the appellants’ counsel, Joseph Ochuko Tobi, Esq., represented them and the appeal was adjourned to 24/09/2012. On that day, 24/09/2012, learned counsel for the appellants was absent. As a result, this court, in keeping with the provision of order 18 Rule 9(4) of the Court of Appeal Rules, 2011, treated the appeal as having been duly argued. In that regard, learned counsel for the respondent, Dennis Idoko, Esq., adopted the respondent’s brief of argument, filed on 30/03/2012 but deemed filed on 28/06/2012, as representing his arguments against the appeal. Learned counsel urged the court to dismiss the appeal.
In the appellants’ brief of argument, they distilled two issues for determination of the appeal to wit
“3.01. whether the charges against the Appellants disclose any offence known to section 22(5) of the Corrupt Practices and Other Related offences Act, 2000 requiring the court to take evidence first before they can be declared incompetent.
(Ground 1).
3.02 Whether the proof of evidence filed along with the charge linked the Appellants with the offence (sic) envisaged by section 22(5) of the corrupt practices and other Related offences Act, 2000. (Ground 2).
On the other hand, the respondent, in its brief of argument, crafted three issues for determination of the appeal viz:
“3.01. whether the learned trial judge was right in holding that there is a prima facie, case against the accused person.
3.02.Whether the transfer of money from one account to another account without actually spending it, constitutes an offence under section 22(5) of the corrupt Practices and other Related offences Act 2000.
3.03. Whether overhead cost and personnel cost are projects and services as envisaged in S.22(5) of the Corrupt Practices and other Related offences Act 2000.”
I have juxtaposed the two sets of issues settled by the parties. In my view, the respondent’s issues one and two can conveniently be subsumed under the appellants’ issues one and two. The respondent’s issue two is an orphan as it does not relate to any of the appellants’ two grounds of appeal. In any event, the respondent did not cross-appeal. It formulated its three issues from the appellants’ two grounds of appeal. That is a paradigm of proliferation or multiplication of issues which the law frowns upon. Since the respondents’ three issues are unfriendly to the law, I will consider the appeal based on the appellants, issues, particularly as the respondent’ responded to them.

ARGUMENTS ON THE ISSUES:
Issue one:
Learned counsel for the appellants submitted that the offence for which the appellants were charged at the lower court was an offence under section 22(5) of the Corrupt practices and other Related offences, Act, 2000 (hereinafter abridged to “the Act”). He reproduced the provision in full. He further submitted that a charge was intended to inform an accused person, in clear terms, the offence for which he was being tried. He added that the contents of a charge should not be subject of speculation and inference, rather the essential ingredients of the offence must be disclosed in it. He quoted in extenso count one as an exemplification of the 38 counts contained in the charge sheet against the appellants. He cited the case of Mohammed Abacha vs. State (2002) 9 MJSC 1 to support his submission.
He contended that for an offence to be said to have been committed under section 22(5) of the Act, the operative words are “Any public officer who transfers or spends any sum allocated for a particular project or service on another project or service”. He noted that on the face of the operative words, it would seem that the mere act of transfer and or spending of any sum allocated for a particular project would constitute the offence. He hastened to counter that it went beyond that. He insisted that before the offence envisaged by section 22(5) of the Act could be said to have been committed, the charge must show that the money so transferred or spent was transferred and or spent on another project with the charge indicating what those projects or services were. He referred to the case of FRN vs. Prof. A. M. Yakubu & 2 Ors (unreported) case No. KDH/KAD/1/ICPC/03 decided by the High court of Kaduna State and commended the reasoning in it to the court even though not binding on it.
Learned counsel further contended that the charges as framed for which the appellants were arraigned at the lower court did not constitute any offence under the Act. He explained that the charges merely alleged the transfer from personnel cost to overhead cost without more, noting that personnel cost account was not a particular project or service neither was overhead cost account a particular project or service. He persisted that the charge as framed not having clearly defined as offence fell short of the requirement of a valid charge wherein the ingredient of the offence was clearly disclosed. He placed reliance on the provision of section 201(1) and (2) of the criminal procedure code. He reasoned that the charges before the lower court, to say the least, did not constitute any offence under the Act talkless of giving the appellants notice of the matter with which they were to face trial. He relied on the case of Abacha v. State (Supra).

He posited that an accused person, despite the power of the prosecution or the state to file indictment or charges, should not be indicted to face trial that from the outset it was clear he should not face. He placed further reliance on the cases of Ikomi v. State (1986) 3 NWLR (Pt. 28) 34 at 356; Egbe vs. State (1980) INCR; Okoli vs. State (1992) 6 NWLR (pt. 247) 381.

He reiterated the pointed that the charges preferred against the appellants did not constitute an offence under section 22(5) of the Act and they should not be put through the trauma of trial and taking of evidence before the charges could be quashed against them. He maintained that once the courts on the charge sheet did not indict an accused, the court had a duty to quash it and discharge the accused without to trial and rigours of calling evidence to prove it. He reasoned that doing otherwise, as ordered by the lower court, would amount to asking the appellants to answer to a non-existent charge and or asking them to prove their innocence thereby shifting the burden and infringing on their constitutional rights as provided in section 36(5) and (6) (a) of the 1999 constitution, as amended. Learned counsel urged the court to hold that the entire 38-count charge against the appellants did not disclose an offence under section 22(5) of the Act and quash same and discharge them.

On behalf of the respondent, its learned counsel submitted that section 22(5) of the Act contained two offences, namely, transfer of money meant for a particular project or service to another project or service and spending money meant for a particular project or service on another project or service after the money had been transferred. He explained that if after transferring the money, it was further spent, two offences would have been committed, but if it stopped at transfer, only one offence would have been committed. He stated that funds are disbursed to government agencies and department via specific accounts meant for specific projects or services. He added that it could be possible too that money could be transferred from one account meant for a specific purpose to another account meant for another specific purpose. He persisted that once that transfer was effected, an offence under section 22(5) of the Act had been committed. He posited that the instant case concerned about transfer of money from account meant for a particular purpose to another account meant for another purpose; noting that once a transfer was made, no matter what it was spent on, or how it was spent, on offence had been committed.
Learned counsel contended that if the charge was bordering on spending money meant for a project or service on another project or service, there would have been the need to specify all the projects or service that the money was spent on. He explained that the philosophy behind making transferring of fund from one account to another a strict liability offence under section 22(5) of the Act was to forestall public officers engaging in such acts which would be preparatory to spending the funds fraudulently. He opined that there is a procedure to be followed in transferring money from one head to another in public service as provided in chapter 415 of the Federal Republic of Nigeria Financial Regulation, 2006. He narrated the procedure:- That an officer intending to transfer would apply to the appropriate authority for approval, explaining all the reasons for the intended transfer. The approving authority might or might not approve. If approved, the transfer could be effected without committing an offence. He maintained that such approval was not sought and obtained in the instant case. He further posited that in public service, the act of moving money from one account or head to another is termed virement – strongly prohibited by the public service rules if done without approval. He stated that the Corrupt Practice and other Related Offences Act, 2000 criminalized that act – virement. He maintained that transfer of money from personnel cost to overhead cost without spending it constituted an offence under section 22(5) of the Act and urged the court to so hold.
On points of law, learned counsel for the appellants argued that the appellants were accused of violating section 22(5) of the Act and not the Financial Regulation and that respondent’s reference to it, Financial Regulation, amounted to over reaching the appellants who were not arraigned for violating its provisions.

Issue Two
Learned counsel for the appellants submitted that the charge preferred against the appellants at the lower court was by way of information so that the names and addresses of witnesses and the proof of evidence which would be relied upon at the trial were filed along with it. He noted that the essence of proof of evidence was to enable the court know whether a prima facie case has been made against an accused that call for him making a defence. He further submitted that in deciding whether a prima facie case existed for an accused to answer an information, the prosecution must submit along with the information for indictment all facts that would reveal not only an offence but a prima facie connection between the offence and the accused whereby the accused would have an explanation to make at the trial. He cited the case of Abacha vs. State (supra) to support the submission.
Learned counsel took the view that in the instance case, the relevant materials placed before the trial court were the proof of evidence and the written statement of the accused. He added that the so called proof of evidence contained the names of the witnesses and merely stated what each witness would testify to at the trial that the accused person transferred the sum of N54,850,000.00 allocated for personal cost to overhead account of the institute and that the transfers were done in piecemeal and without payment vouchers and cheques. He posited that in the entire proof of evidence, nothing showed what project or services the money was meant for and or what project or services the money was transferred to. He then contended that the mere statement that the accused persons transferred money from personnel cost to overhead account, without more, did not make and could not link them to the offence envisaged under section 22(5) of the Act. He placed reliance on the cases of Ikomi vs. State (supra) and Ohwovoriole Vs. FRN (2003) 3 MJSC 1 and urged the court to quash the charges against the appellants, discharge and asquint them.

He argued that any charge of conspiracy would be glued to a substantive offence so that no substantive offence, no offence of conspiracy and a discharge on a substantive offence implied an acquittal on a conspiracy charge. In support of that argument, he cited the cases of The Queen vs. Aniemeka & Anor (1961) ANLR (Pt.1) 43 and Ike vs. The State (1985) 4 SC 30. He maintained that since the charges under section 22(5) of the Act would not be sustained by the court, the charges bordering on conspiracy under section 26(1) of the Act could not be sustained.
He urged the court to discharge the appellants on all the charges preferred against them in the lower court for non-compliance with section 185(b) of the Criminal Procedure Code. Learned Counsel, based on the above submissions, urged the court to allow the appeal-quash the charges, discharge and acquit the appellants.
For the respondent, its learned counsel submitted that the lower court was right in holding that the appellants had a case against them to answer going by the documents filed before it. He posited that at the stage the case was at the lower court, what was necessary at that point was to establish that there was a prima facie case against the appellants and not to prove their guilt. He relied on the case of Abacha vs. State (supra) to buttress the submission. He further posited that to establish that there was a prima facie case against the appellants, what was needed to be shown by the information was that an offence was committed under a law and that they were connected to the said offence and had an explanation to make regarding it. He explained that in considering whether the appellants had an explanation to make or there was a prima facie case against them, the court would look at the counts in the charge, statement of witnesses (the proof of evidence), the statement of the appellants and other documents annexed to the information.

Learned counsel stated that the thirty-eight-count charge against the appellants bordered, principally, on conspiracy to transfer and actually transferring various sums of money allocated for personnel cost to overhead, cost account. He argued that the proof of evidence the statements of five (5) witnesses that would testify in court all showed that the appellants transferred monies from personnel account to overhead cost account. He further argued that the appellants under caution owned up that they did transfer the said money from personnel account to overhead account. He persisted that from all those facts contained in the information, there was no doubt that there was nexus between the appellants and the charges against them.
Learned counsel, on the strength those arguments, urged the court to uphold the ruling of the lower court, and dismiss the appeal.

Resolution of the issues:
In considering the two issues, I will attend to them in their numerical sequence. That is to say, I will kick-off with issue one.
The kernel of the appellants’ grouse on the issue is that the charges preferred against them by the respondent do not disclose any offences, known to law, in the light of section 22(5)of the Act under which they are framed. In other words, the appellants are calling to question the 38-count information vis-a-vis the provision of section 22(5) of the Act under which they are arraigned before the lower court. In view of this castigation, the provision of section 22(5) of the Act becomes of note and it provides:
“22(5). Any public officer who transfers or spends any sum allocated for a particular project, or service, on another project or service, shall be guilty of an offence under this Act and on conviction be liable to one(1) year imprisonment or a fine of fifty thousand naira.”
By the same, I will cull from the record, the chastised charges levelled against the appellants. However, owing to the cold fact that the charges, a 38-count information spanning from pages 3-12 of the record, are unwieldy, it will be neater to extract counts one and two of them, to serve as templates, thus:
“COUNT ONE:
That you, Professor Kayode Carroll Oni, (m), and Mr. Johnson Olajide Abolarin, (m), on or about 7th January, 2003, at Ilorin, Kwara State, being public officers, did conspire with each other to commit an offence under the corrupt practice and other Related Offences Act 2000, to wit; to transfer the sum of N500,000.00 (Five Hundred Thousand naira) allocated for personnel cost to overhead cost account and you thereby committed an offence contrary to section 26(1) (c) and punishable under section 22(5) of the Corrupt Practices and Other Related Offences Act 2000.

COURT (Sic) TWO:
That you, Professor Kayode Carroll Oni, (m), and Mr. Johnson Olajide Abolarin, (m) on or about 7th January, 2003, at Ilorin, Kwara State, being public officers did transfer the sum of N500,000 (Five Hundred Thousand naira) allocated for personnel cost to overhead cost account and you thereby committed an offence contrary to and punishable under section 22(5) of the Corrupt Practices and Other Related Offences Act.”
The contents of counts three (3) to thirty-eight (38) are, mutatis mutandi’s in monetary sums and dates, replicas or prototypes of counts one and two reproduced above.
In the same vein, the provision of sections 200 and 201 dealing with the forms and contents of charges respectively, found in CHAPTER XIX – CHARGES, of the Criminal procedure Code, come in handy. They state;
“200. Charges may be as in the forms set out in Appendix B modified in such respects as may be necessary to adapt to the circumstance of each case.
201(1) Every charge under this criminal code Procedure code shall state the offence with which the accused is charged.
(2) If the law which creates the offence gives it any specific names, the offence may be described in the charge by that name only.
(3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence said to have been committed shall be mentioned in the charge.
(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.”
Let me remark that I decided to display all the relevant provisions of the statutes and the charges against the appellants, at the expense of prolixity but borne out of necessity, so as to be properly equipped and balanced in the consideration of this critical issue.
To begin with, it is crystal clear, from the provision of section 200 of the Code, that the format of charges in Appendix B thereof is not absolute and immutable. The form is amenable or susceptible to modification to bring it into conformity and alliance with the circumstances of any case,. That means, the form is there to act as guide to drafters of charges so that its contents cannot be followed in a robotic manner.

I have married the charges, sought to be impugned, with the approved form in Appendix B. In my view, none of the counts, in the 38-count information slammed against the appellants, runs foul of the provision of section 200 of the Code with its accompanying Appendix B. This is because, the Ist respondent, duly, modified each of them to suit the circumstances and facts of the allegations made against the appellants, on this score, I hold that the requirement of the provision of section 200 of the Code, with its Appendix B, was sufficiently fulfilled by the respondent.

That takes me to a comparison of the provision of section 201 of the Code with the charges preferred against the appellants with a view to discerning if the prescription is satisfied or not. The appellants placed high premium on the non-satisfaction of subsections (1) and (3) of that provision. However, I will consider the provision holistically, one subsection after the other. That will not only make for a dispassionate consideration, but will meet the ends of justice for the parties on the issue.
By the provision of subsection (1) of section 201 of the code, a charge must state the offence with which an accused is charged. I have given a microscopic examination to all the counts in the 38-count information made against appellants. In all the counts, the offences which the appellants were alleged to have committed are stated, that is, conspiracy to transfer and transfer of some sums of money allocated for personnel cost to overhead cost account. Indeed, I dare say, as manifested in the record on pages 3 – 12 of the record hosting the charges, statement of the offence ran through all the counts. The requirement of the subsection is met fully.
Subsection (2) of section 201 of the code insists that a Charge should give the offence the name if one is given to it by the law. Again, I have given an intimate reading to all the counts of the 38- count information. The provision of sections 26(1) (c) and 22(5) of the Act, which created the offences in question, gave them specific names – conspiracy and transfer of any sum, as the case may be. Also, each count in the 38 – count information described the alleged offence with the appellation of conspiracy or transfer, as the case may be, as assigned to it by the prescription of sections 26(1) (c) or 22(5) of the Act. The subsection is, duly, complied with.
Then, subsection (3) of section 201 of the code provides that where the law does not give the offence any specific name, then the charge should define it to the extent of giving the accused notice of the charge against him. This subsection, to my mind, serves as an alternative to subsection (2) as the former cannot stand in the presence of the latter. Having reached a solemn mini-finding on subsection (2) that the offences are accorded and christened their particular names, conspiracy and transfer, by the enabling penal provision, then the need for definition of the offence, as stoutly canvassed by the appellants, pales into insignificance.
Put starkly, the need for such description does not arise. To define the offences will, at best, constitute surplusage. The subsection is, like its predecessors, adequately satisfied.
For subsection (4) of section 201 of the code, the charge must state the law and the section of the law that is violated.
Here’ too’ I have given the 38 counts a thorough scrutiny, using the eagle eye of a court. Each of the counts terminated with the mantra: “… Punishable under section 22(5) of the corrupt Practices and other Related offences Act 2000.” I am clear in my mind that the factoring, of that phrase into each count, wholly, conforms with the requirement and intendment of the subsection.

Subsection (5) of section 201 of the Code, in the manner it is couched, is not a condition required to be fulfilled by a charge. It rather serves as a shield to the respondent – that the fact that the charge was made against the appellants’ meant that every legal condition required by law was fulfilled. The subsection is analogous to the provision of section 150(1) of the Evidence Act, 2004, now section 168(1) of the Evidence Act, 2011, presumption of regularity of official acts. The Latin maxim is: Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium all things are presumed to have been legitimately done, until the contrary is proved. This presumption has been held, by the apex court, to be a defence in favour of official acts performed by public bodies, see Okeke v. State (2003) 15 NWLR (Pt.842) 25 at 102; Torri v. National Park Service of Nigeria (2011) 13 NWLR (pt.1264) 365. In keeping with this presumption, which is not rebutted by the appellants, I hold that the respondent’s making of the charges showed that the legal conditions required by law to constitute the offences charged against the appellants was met in the case.

I must place on record, for purposes of ex abundanti cautela, that each count of the 38 – count information contains, in clear and unequivocal terms, the time (date) and place of the alleged offence and the names of the appellants reasonably sufficient to give them notice of the matter with which they are being charged.
That is in complete conformity with the provision of section 202 of the Code dealing with charge particulars. Even then, a charge is not invalidated for its failure to disclose all particulars of an offence, see Ogudo vs. state (2011) 18 NWLR (pt. 1278) 1 at 50. The information is not bereft of the necessary particulars.

I must observe that, given the above dissection of the provisions of sections 200 – 202 of the code, there are no errors, palpable or latent, on the face of the 38 -count information preferred against the appellants. Even if there were errors, then the respondent can take refuge under the salvaging provision of section 206 of the code as the provision regards such errors as immaterial and of no moment. This is more so when the appellants did not show that they were misled by such errors.
This is because, the appellants, on their arrangement before the lower court, took their pleas to the 38-count information on 22/02/2007. As demonstrated on pages 77 – 79 of the record, each appellant pleaded to each count of the 38 – count information in these words; “I understand the charge. I am not guilty.” That plea, ipse dixit of each appellant on each count of the charge, seals any remote possibility of their being misled by any errors in the 38-count information. It means, therefore, that the appellants cannot take cover under the proviso to the provision of section 200 of the code in soliciting the court to invalidate the information.
In the light of the foregoing legal expositions, I completely differ with the appellants in their contention that the information smacks of speculation – “The act or practice of theorizing about matters over which there is no certain knowledge”, see State vs. Aibangbe (1988) 3 NWLR (pt. 84) 548 at 577. I hold the humble view that the information is not void of essential ingredients of the offences the appellants are charged with given the points displayed above.
Similarly, I am not at one with the appellants that the charges are vitiated for failure to indicate the projects or services the alleged transferred money were spent on. The appellants’ stance overlooks the fact that the act of transfer of money meant for a particular project or service to another project or service is a complete offence on its own. The word ‘or’, a conjunction, is deployed in-between the two verbs – transfers and spends in section 22(5) of the Act. In the interpretation of statutes, the word ‘or’ is usually construed as disjunctive, see Ndoma – Egba vs. Chukwuogor (2004) 6 NWLR (pt. 369) 382; Olaleye-Ote vs. Babalola (2012) 6 NWLR (pt. 1297) 574. Having regard to this cardinal principle of interpretation of enactments, the intention of the lawmakers in enacting that provision is not a second-guess. It is that transfer of any sum allocated for a particular project or service is a distinct crime from spending any sum earmarked for a particular project or service on another project or service. Hence, the law makers, in their infinite wisdom, employed the disjunctive word or ‘or’ to separate the two criminal wrongs.

Altogether, on account of these analyses, I find no vitiating errors or any militating features ex facie on each count of the 38 – count information preferred against the appellants to warrants discountenancing same. In a word, the 38-count information has not insulted the law on the nature and contents of charges in relation to the stipulation in section 22(5) of the Act contrary to the contention of the appellant. I hold that the charges, clearly, disclose offences known to section 212(5) of the Act. In the result, I resolve issue one against the appellants.

Having settled issue one, I proceed to handle issue two. The heart of the appellants’ grievance on the issues is that the proof of evidence, filed alongside with the information, does not link the appellants with the offences charged as contemplated by section 22(5) of the Act.
Before delving into the fulcrum of this issue, it is germane to restate that the appellants were hauled before the lower court by dint of an ex-parte application for leave to prefer a criminal charge against them in consonance with the provision of section 185 (b) of the Criminal Procedure Code. As ordained by law, the respondent attached to that application a copy of the charge sheet, names and addresses of witnesses and proof of evidence to be relied upon at the trial. The application was granted, as shown on page 77 of the record, on 08/02/2007.
It is trite law that any information or charge preferred against an accused person must not only disclose an offence being charged, but must link such accused person with the offence charged. The evidence showing an accused person’s linkage with an alleged offence is to be gleaned from the proof of evidence placed before the court during the grant of the application for consent to prefer the charge. The evidence, which may be direct, circumstantial or confessional, need not be such that will lead to conviction or guilt of an accused person, simply put, prima facie case is sufficient. Where there exists in the proof of evidence, evidence of such prima facie case connecting an accused with the offence, then such accused person has a case to answer and he will be subjected to the rigours of full-scale trial. Contrariwise, if there is absence of prima facie case, in the proof of evidence, linking him with the crime, then he will not be put on trial and the information will be liable to be quashed. These hallowed principles of law have received the blessing of the supreme court in myriads of decided cases, see Ikomi v. State (supra)/(1986) 1 NSCC (Vol. 17) 730; Abacha v. State (supra)(2002) 11 NWLR (pt. 779) 437; Ohwovoriole v. FRN (Supra)/(2003) 2 NWLR (Pt.503) 176; Nyame v. FRN (2010) 7 NWLR (pt. 1193) 344.

Against the backdrop of these X-rayed positions of the law, the knotty question is: does the proof of evidence disclose a link between the appellants and offences levelled against them in the 38-count information? As already noted, the law gives the court the unbridled mandate to search for the linkage in the proof of evidence. To this end, I have, armed with the licence of the law, paid a visit to the proof of evidence, found on pages 13-56 of the record, and read same, particularly the statements of the respondents’ witnesses and those of the appellants, with a fine toothcomb. In the course of that tedious exercise of burrowing through the expansive or prodigious proof of evidence, I met some portions of it that are pivotal to the consideration of this issue. For ease of reference and better appreciation, those necessary parts of it are set out hereunder in keeping with the procedure adopted by the Supreme court in the cases of Ikomi vs. State (supra); Abacha vs. State (supra) and Ohwovoriole vs. FRN (supra). One of the proposed witnesses is Idris T. Garba. He is an investigator attached to the investigation department of the Independent corrupt Practices and other Related offences Commission, ICPC, Abuja. On pages 14-15 of the record, it is stated that:
“He will testify that the investigation conducted into the allocation of the institute’s Budgetary allocations for the year 2003 and 2004, showed that the Accused persons transferred the sum of N54,850,000.00 allocated for personnel cost to overhead account of the institute, the transfers were done in piece meal. He will also testify that the accused persons jointly agreed to transfer and did transfer various sums of money allocated for personnel cost to overhead cost as stated below…”
Also, one Agboro M.O., an investigator attached to investigation department of the Commission, will testify in the manner stated by Idris T. Garba.
For one Mr. P.A. Ejigah, on pages 21-22 of the record, it is stated that:
“He will testify that he is the internal auditor of the institute. He will testify that the accused persons made several transfer of monies allocated for personnel cost to overhead account. That the transfers were done by the accused persons without payment vouchers and cheque.”
Another staff of the institute Olubode Bamidele Lalemi, on page 54 of the record, will testify that he once acted for the second appellant, the Controller of Finance for the Institute, and co-signed some letters of transfer of money from salary account to overhead account with the first appellant. He listed the 45 letters on pages 54-56 of the record. In addition, the manager/staff of Trade Bank Plc., now known as United Bank for Africa (UBA) Plc., will testify that the institute had operated two accounts-personnel/salary account and overhead account- and he issued statements of account in respect of them. The statement is located on page 56 of the record.
The first appellants’ cautionary statement occupies 10 pages of the record, from pages 23-33 thereof. On page 27, he volunteered:
“When credit advice is received from the centre’s Banker, in this case the erstwhile Trade Bank plc., Ilorin, it normally indicated that the two funds had been credited into salary and wages account from where piecemeal transfers are made, as requested by the centre, to the overhead account.
On page 30 of the record, he added:
“On the transfer from salary and wages accounts this has been a subsisting practice where the letter of transfer is co-signed by the controller of Finance and the Director of NCAM.”
The second appellant in his own cautionary statement volunteered, on pages 37-38 of the record, as follows:
“On the issue of transfer of fund NCAM has a one line vote whereby both personnel cost allocation and overhead cost allocation is received into the same account. After it has been received into the one account the sum related to overhead the sum been moved from personnel cost which … both funds at peace meal (sic). The peace meal (sic) transfer of fund gave indication to the operator of accounts that the sum transferred has been exhausted. Equally, this is also to prevent heightened staff demand …”
I took pains to go thus far, in culling from the records the relevant excerpts of the statements of the respondent’s would-be witnesses and the appellants, so that I will be on a firm footing or ground in ascertaining if the proof of evidence unveils prima facie case against the appellants. There is dearth or drought of cases on the meaning of prima facie case. Nevertheless, in the case of Ajidagba v. Inspector General of Police (1958) SCNLR 60 at 62, the Federal Supreme Court, per Abbott, F.J., stated:
“We have been at some pains to find a definition of the term, a prima facie”. The term, so far as we can find had not been defined either in the English or in Nigerian Courts. In an Indian case, however, Sher Singh v. Jitendranathsan (1931) I.L.R. 59 Calc. 275, we find the following dicta:-
“What is meant by prima facie (case)? It only mean 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 disclose a prima facie case when it is such that if uncontradicted and believed it will sufficient to prove the case against the accuse.” …”
see, also, Nyame v. FRN (supra).
It flows from that borrowed and accepted definition that prima facie case, which is diametrically opposed to proof, connotes the existence or presence of reasons/grounds, no matter how infinitesimal or remote, for proceeding in a criminal trial against an accused person.

I have situated the meaning of prima facie case with the proposed testimonies of both parties which I had set down above. It seems clear to me that the proposed evidence in the highlighted portions/parts of the statements of the witnesses, amply, demonstrate that there is a nexus or connection between the appellants and the commission of the alleged offences levelled against them in the 38 count information. The evidence pointedly disclose reasons or grounds to justify the appellants to offer answer to the charges preferred against them by the respondent. In the common legal parlance, the proof of evidence showcases prima facie case against the appellants to warrant and
necessitate their prosecution. It is possible that the appellants may not be found guilty of the charges at the end of the day, but for now the proof of evidence reveals crucial and tangible prima facie evidence linking them with the offences contained in the 38- count information
For completeness, I must remark, pronto, that the decisions in the cases of Abacha y. State (supra) and Ohwovoriole v. FRN (supra), upon which the appellants pegged their view point, are not available to them given the circumstances of this case. In those two cases, the Supreme Courts rightly found that there was no shrewd of evidence in the proof of evidence connecting the appellants with the offences alleged against them. Put the other way round, the facts and circumstances of the two cases are not impari materia with those of the case in hand. In the eyes of the law, their facts are, highly, distinguishable. Conversely, the facts and circumstances in the cases of Ikomi v. State (Supra) and Nyame v. FRN (supra) share symmetrical facts with the instant matter. I find the facts and circumstances of the two later cases as being on all fours with those of this case. It is not lost on this court that facts are the fountain head of the law. Facts are forerunners of the law and the doctrine of stare decisis thrives in the province of similarity of facts of different cases. I will, therefore, follow the cases of Ikomi v. State (supra) and Nyame v. FRN (supra) based on their identical facts and circumstances. I decline the appellants inviting invitation to follow the decisions in the case of Abacha v. State (Supra) and Ohwovoriole v. FRN (supra) on account of facts differentials.
All in all, I find, after consulting the law, that the proof of evidence clearly reveals that the appellants have a link with the offences of conspiracy to transfer and transfer of some sums of money meant for personnel cost to overhead cost account contrary to the provision of sections 26(1) (c) and 22(5) of the Act respectively. The finding answers the question posed at the dawn of this issue, in the positive. The lower Court had, on page 88 lines 8-10 of the cold record, found that:-
“Therefore, considering the facts made available before me in this case, I hold that there is a prima-facie case established against the 2 accused persons for which to call on the accused to make an explanation.”
That finding is, wholly, in tandem with mine and, by extension, the position of the law. I find it, totally, unimpeachable. I will desist, for fear of injuring the law, from tinkering with that impeccable finding.
For the above marshalled reasons, backed up by law, I resolve issue two against the appellants.
On the whole, having resolved the two issues against the appellants, the fate/fortune of this appeal is obvious. It is a nonstarter and drained of any merit. Consequently, the appeal be and is hereby dismissed for want of merit.

PAUL ADAMU GALINJE, J.C.A.: I have read before now the judgment just delivered by my learned brother Ogbuinya JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
The 38 counts information against the Appellants have not been shown to offend the provisions of any law. On the contrary the charges have established connection between the Appellants and the criminal allegations contained therein. In a situation such as this it will be premature to quash the charges against the Appellants.
For this reason and the elaborate reasons in the lead judgment, I too find this appeal unmeritorious. Same is accordingly dismissed by me.

ITA G. MBABA, J.C.A.: I have had the privilege of reading the draft of the Judgment just delivered by my learned brother O. F. Ogbuinya JCA, I agree completely with his reasoning and conclusions.
After the Appellants had pleaded Not guilty to the charge, the act of raising objection to the trial on the grounds of alleged defects in the charge and lack of prima facie case, appeared belated. It appears to be in the best interest of Accused person to listen to the evidence by the prosecution before raising any case of the charge not disclosing offence or the evidence not strong to lie the offence, as that would forfeit the right of amending the charge after the trial.
I agree with the trial judge that the charges (counts) are competent.
The charge and the proof of evidence, on the face of them have disclosed a prima facie case and Appellant’s complaint under Issue 2 at this stage appears to be an invitation to dabble into the merits of the case yet to be tried by the trial judge. That temptation must be resisted, as the issue cannot be fully discussed at this stage without delving into the merits of the substantive case. See the case of Baido v. INEC (2012) 3 WRN 27 held:
“The law is well settled that a court, in considering and determining an interlocutory application, must be circumspect and not delve into determining any part of the substantive matter before it.” See the authorities of Orji vs. Zaria Native Industries Ltd. (1992) 1NWLR (Pt.216) 124 at page 1411 (1992) 1 SCNJ 29, Mobil Oil Plc. V. D.E.N.R Ltd. (2004) 1 NWLR (pt.853) 142 at pages 158 – 159, Total (Nig) Ltd. v. VIIRA (2004) 37 WRN 65 at page 83.”
There is a competent charge /case to be tried by the lower Court. For this and the more elaborate reasons in the lead judgment I too dismiss the Appeal and abide by the consequential orders in the lead judgment.

Appearances

No representationFor Appellant

AND