SENATOR ADOLPHUS N. WABARA & ORS. V. FEDERAL REPUBLIC OF NIGERIA
(2010)LCN/3833(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 1st day of June, 2010
CA/A/7/C/2006
RATIO
PROCEDURE: RULES FOR THE APPLICATION TO PREFER CHARGES UNDER SECTION 185 OF THE CRIMINAL PROCEDURE LAW
There are rules specifically made for the application to prefer charges under section 185 of the Criminal Procedure Code Law. Abacha v. The State (2002) 11 NWLR (pt. 779) 437 at 478 – 479; R v. Zik’s Press Ltd (1947) 12 WACA 202.
The procedure whereby a trial on indictable offence will be initiated by an application whether in the Judge’s chambers or in open, demands that the application be made ex-parte, at the back of the person to be tried, and this seeks a discretion not an absolute right. There must be clear particulars and facts to justify the exercise of the discretion. Therefore it is not the law, neither is it justice, to say that once the application is made on information and all necessary documents are attached, without more, the application to prefer a charge must be granted. There must be facts in the proofs of evidence to justify the grant of the application. Otherwise, indictments would be allowed to be tried where enough particulars are absent in the proofs of evidence. However an accused person should not be indicted to face trial which from the outset he should not face. The Supreme Court in Abacha v. The State (2002) 11 NWLR (pt. 779) 437; Ikomi v. The State (1986) 3 NWLR (pt. 28) 340; Egbe v. The State (1980) 1 NCR 341; Okoli v. State (1992) 6 NWLR (pt. 247) 381; Enuma v. The State (1997) 1 NWLR (pt. 479) 115.
Every charge on an indictment must be clear so that the person to be tried will understand the complaint against him. The accused must not be left in doubt as to what he is to face on trial, the more so when a criminal trial involves the liberty of the citizen being indicted. He cannot be made to speculate what is or not on the face of the indictment. In Abacha v. The State (supra) 498 504 -505; the Supreme Court held information as laid was defective in that whilst the appellant and 3 other co-accused were charged with conspiracy to murder and murder of Kudirat Abiola in counts 1 and 2, only the appellant was charged as an accessory after the murder to the same Kudirat Abiola committed by two different persons namely Mohammed Abdul a.k.a Katako and Aminu Mohammed in counts and 4 respectively in the same information. That was said to be misleading. The purpose of serving proofs of evidence upon an accused person is to give him the opportunity of knowing what the prosecution witnesses will state in court against him Abacha v. The State (2002) 11 NWLR (pt.779) 437 at 511; Ede v. State (1977) 1 FCA 95. PER MARY U. PETER-ODILI, J.C.A.
PROCEDURE: REQUIREMENT OF WHAT SHOULD ACCOMPANY AN APPLICATION TO A JUDGE FOR HIS CONSENT TO FILE AN INFORMATION
It is a requirement of the law that among what should accompany an application to a Judge for his consent to file an information are proofs of evidence of the witnesses whom the prosecution intends to call in support of the charges.
Although it is not specifically provided that the judge must be satisfied that prima facie case must be made out in the proofs of the evidence supplied along with the application for the Judge’s consent before he gives his required consent, this is definitely a requirement placed on the Judge in this decision in the matter could pass the required test of being judiciously and judicially made. Enuma v. State (1997) 1 NWLR (pt. 479) 115 at 120 – 121 per Akintan JCA (as he then was). PER MARY U. PETER-ODILI, J.C.A.
PROCEDURE: PURPOSE OF PRESCRIBING FOR A JUDGES CONSENT TO FILE INFORMATION
The purpose of prescribing for a Judge’s consent to file information is to ensure that an innocent person is not unnecessarily subjected to the rigors or having to go through a trial for an offence of which there is no evidence to warrant his being put on trial. Thus, if a Judge wrongly gives his consent to the preferment of an information against an accused person who has not in any way been implicated in the proofs of evidence supplied along with the application for his consent, especially in the case in hand where the statements of the star witnesses were not attached such a decision would be regarded as a discretion not made judiciously but acting within the law if the trial judge refuses to quash such an information. Enuma v. State (1997) 1 NWLR (pt. 497) 115 at 121 – 122; Ikomi v. State (1986) 3 NWLR (pt. 28) 340. PER MARY U. PETER-ODILI, J.C.A.
JUSTICE: WHETHER THE RULES OF NATURAL JUSTICE APPLY TO BOTTH JUDICIAL AND ADMINISTRATIVE DETERMINATIONS
It is well settled that the rules of natural justice apply to both judicial and administrative determinations. They are not limited to judicial decisions. The principle of natural justice applies in all cases where the preliminary investigation or inquiry is an integral or necessary part of a process which may terminate in action adverse to the interests of the applicant claiming the right to be heard. Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 2 NWLR (pt.7) 300.
Where the prosecutor acts as a persecutor the Court has always been quick to condemn such action. It is necessary to refer to the admonition of Craig JSC in Fawehinmi v. Akilu (No.2) (1989) 2 NWLR pt 102 at 207 PER MARY U. PETER-ODILI, J.C.A.
CONSTITUTIONAL LAW: SUPREMACY OF THE CONSTITUTION
The Constitution is supreme; it is the organic or fundamental law and it is the grundnorm of Nigeria. The Constitution is the fons et origo and foundation of all laws. This is why it has made provisions for the procedural law applicable in the various courts established by it in Sections 216, 227, 239, 244 and 249. Any act which infringes or runs contrary to those organic principles or systems or provisions must be declared to be inconsistent. The court has the jurisdiction to declare any other law or Act inconsistent with the provisions of the Constitution, invalid and therefore null and void. Fasakin Foods (Nig.) Ltd v. Shosanya (2006) 10 NWLR (pt. 987) 126 at 148 -149 per Ogbuagu JSC; Emerah & sons (Nig.) Ltd. v. Attorney General Plateau State (1990) 4 NWLR (pt. 147) 788; Attorney General Lagos State v. Dosunmu (1989) 3 NWLR (pt. lll) 552; Kalu v. Odili (1992) 5 NWLR (pt. 240) 130; Imonikhe v. attorney General Bendel State (1992) 6 NWLR (pt. 148) 296; Rossek v. A.C.B. Ltd. (1993) 8 NWLR (pt. 312) 382; Nuhu v. Ogele (2003) 18 NWLR (pt. 852) 251; Uwayo v. Attorney General Bendel State (1982) 4 NCLR 1; Ikine v. Edjerode (2001) 18 NWLR (pt. 745) 466; Attorney General Ogun State v. Attorney General Federation (2002) 18 NWLR (pt.798) 232; Labiyi v. Anretiola (1992) 8 NWLR (pt. 258) 139. PER MARY U. PETER-ODILI, J.C.A.
JUSTICES
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
1. SENATOR ADOLPHUS N. WABARA
2. SENATOR IBRAHIM ADBULAZEEZ
3. PROFESSOR FABIAN OSUJI – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
MARY U. PETER-ODILI, J.C.A. (Delivering the Leading Judgment): This is an appeal from the decision of the High Court of the Federal Capital Territory, Abuja delivered on the 10th day of November, 2005, Coram: Husseini Mukhtar I. declining to quash the Criminal Charges of Offering and giving gratification.
Grounds of Appeal of 1st Appellant, Senator Adolphus Ndaneweh Wabara without the particulars are:-
GROUND ONE:
The learned trial Judge erred in law by denying the Appellant his right to fair hearing in reaching a decision without considering the submissions of the Appellant or his application on the merits or at all.
GROUND TWO:
The learned trial Judge erred in law when he held that the national broadcast by the President of the Federal Republic of Nigeria which condemned the appellant as guilty before trial could not legally affect his decision or prejudice same.
GROUND THREE:
The learned trial Judge erred in law in upholding a charge based on a non-existent (aw and thereby occasioned a miscarriage of justice
GROUND FOUR:
The learned trial Judge erred in law when he held there was a prima facie case made out against the Appellant and the other Accused persons for the offences disclosed on the charge when in fact the proof of evidence was suspect in terms of adequacy of the ingredients to sustain the charge and thereby occasioned a miscarriage of justice.
GROUND FIVE:
The ruling was perverse and cannot be supported by the evidence before the Court.
Grounds of Appeal of the 2nd Appellant, Senator Ibrahim Abdulazeez will be re-cast hereunder without the particulars thus:-
GROUND ONE:
The learned trial Judge erred in law and denied the Appellant his right to fair hearing when he arrived at his decision without considering the submissions of the Appellant on his application.
GROUND TWO:
The learned trial Judge erred in law when he held that the national broadcast by the President of the Federal Republic of Nigeria could not legally affect his decision.
GROUND THREE:
The learned trial Judge erred in law when he failed to rule on the Appellant’s motion.
GROUND FOUR:
The learned trial Judge erred in law when he refused to quash the charges and leave granted to prefer them in the absence of the materials required for grant of leave such as the statements of material witnesses which were with held.
GROUND FIVE:
The Ruling is unwarranted, unreasonable and cannot be supported having regard to the evidence.
Grounds of Appeal without the particulars of the appeal of 3rd Appellant, Professor Fabian Osuji and they are as follows:-
GROUND 1:
The learned trial Judge erred in law by refusing to quash the charges against the Appellant when the material ingredients of the alleged offences were absent from the charges on the erroneous conclusion that the only stage for raising the objections is “at the trial”
GROUND 2:
The learned trial Judge erred in law by refusing to quash the charges against the Appellant when no prima facie case was established against the Appellant on the face of the proof of evidence taken together with the charges.
GROUND 3:
The learned trial Judge erred in law when he failed to quash the defective charges against the Appellant but rather held that it “is also an issue that could be taken as part of the defence of the accused person at the trial”.
GROUND 4:
The learned trial Judge erred in law when he held that the provisions of the Criminal Procedure (Applications for leave to Prefer a charge in the High Court) Rules 1970 had been complied with by the Prosecution and refused to set aside the leave granted to prefer the charge against the Appellant.
GROUND 5;
The learned trial Judge erred in law when he held that the Presidential Broad cast indicting the Appellant before the trial is a mere opinion and had no prejudicial impact on the arraignment and trial of the Appellant
GROUND 6:
The learned trial Judge erred in law when he held that the constitutionality or otherwise of Section 53 (1) of the corrupt Practices and Other Related Offences Act 2000 can only be raised at the trial or address stage.
GROUND 7:
The Ruling is unwarranted and cannot be supported having regard to the charges, the proof of evidence and legal arguments before the Lower court.
INTRODUCTION:
The facts leading to this Interlocutory Appeal arose from the decision of the Lower court declining to quash the charges against the Appellant and other Accused Persons in Charge No. FCT/HC/CR/31/05. The decision delivered on the 10th day of November, 2005 is found at pages 347 to 387 of the record of Appeal.
One Senator Chris Adighije made a Statement to the chairman of the Economic and financial Crimes Commission (EFCC) that he got the sum of N50 Million from Professor Fabian Osuji, the Hon. Minister for Education (the 3rd Appellant herein) for some business between them.
He indicated the familiar relationship between them to include being a godfather to his children. He stated that the money had not yet been invested and consequently, he went to his house in the Company of the Economic and financial Crimes Commission chairman and handed over the N50 Million which Professor Osuji gave him for mutual business.
On 22nd March, 2005, Senator Chris Adighije made another Statement completely contradictory and alleged that the money was actually meant to be shared among National Assembly members and had indeed been shared.
Immediately, the Chairman of the Economic and Financial Crimes Commission wrote an “INTERIM” Report to the President of the Federal Republic of Nigeria who made a broadcast on the same 22nd March, 2005 in which he alleged that the Appellants demanded and received bribes for passage of the 2005 appropriation bill. The National Broadcast was so widely published that all the Newspapers in the country carried the broadcast. The Appellants and some of the Accused Persons even had their chieftaincy titles withdrawn on that basis. In fact, the Appellants and the other accused Persons lost their leadership positrons in the National Assembly.
The Appellants contend that this was the Public ridicule and odium brought on the Accused Persons by the broadcast. The Appellants and other accused Persons were neither interviewed nor questioned by either the Economic and Financial Crimes commission or the President.
Eventually, the case was transferred to the Independent Corrupt Practices Commission (ICPC) for prosecution. It was the ICPC that called for the Appellants’ Statements. At the ICPC, Senator Chris Adighije made a third Statement alleging that he collected the money for bribe.
In the Application to prefer the charge, not even one of the three Statements of the “Star Witness” (Senator Chris Adighije) was annexed to the Proof of Evidence. Neither the Statement of the Chairman of the Economic and Financial Crimes Commission as PW1 nor his reports were annexed to the Proof of Evidence.
The Accused Persons, including the Appellants filed various Applications to have the charges quashed. The Applications were consolidated on the understanding that the Learned Trial Judge would make separate pronouncements on each of the applications.
The Appellants state that in his Ruling, the Learned Trial Judge did not make pronouncements on each of the Applications. In addition, the Learned Trial Judge merely reviewed the submissions of the Appellants and other Applications but did not consider them in his Ruling.
It is against all of these that the Appellants have filed a five Ground Notice of Appeal dated 22nd November, 2005 and filed on the same date. It is contained at pages 400 to 406 of the Records.
On the 14th April, 2010 date of hearing; Mr. Nwufo learned counsel for the 1st Appellant adopted their Brief filed on 6/6/06 and a Reply Brief of 12/4/10. In his 1st Appellant’s Brief were couched three issues for determination which are as follows:-
(1) Whether the corrupt Practices and Other related Offences Act, 2000 has been repealed by the Corrupt Practices and Other Related Offices Act, 2003 and thereby rendering the charges against the Accused Persons a having been made under a non existing law.
(2) Whether the National Broadcast of the President of the Federal Republic of Nigeria could affect a jury (including a judge sitting as a Jury) in a manner prejudicial to the Constitutional Right of the Appellant to fair hearing.
(3) Whether there is a prima facie case made out against the Appellant and other Accused Persons having regard to the obvious absence and inadequate statutory materials or ingredients to sustain the charges.
Miss Abhulimen adopted the Brief dated and filed on 12/9/06 as learned counsel for the 2nd Appellant. In the Brief were raised four issues for determination and they are:-
(a) Whether or not the national broadcast of the President Republic of Nigeria could affect a jury (including a judge sitting as jury) in a manner prejudicial to the constitutional right of the Appellants to fair hearing.
(b) Whether or not the Ruling of the Lower court can be supported, having regard to the fact that the learned trial Judge did not consider the submissions of the Appellants and thereby denied them right to fair hearing.
(c) Whether or not leave was properly granted to prefer the charge against the Appellants in the absence of statutory materials such as the statements of star witnesses for the prosecution.
(d) Whether or not the learned trial Judge ought to have pronounced upon or determined the Appellants’ motion separately.
Learned counsel for 2nd Appellant stated their intention to abandon ground 5 of the Notice of Appeal, which ground is hereby struck out accordingly.
Learned counsel, Mr. Uche for the 3rd Appellant adopted their Brief filed on 26/3/09 and deemed properly filed on the 23/2/10. They crafted four issues for determination and these are:
(a) Whether the Lower court was right in refusing to quash the charges against the Appellant
(b) Whether the Lower court was right to hold that the provisions of the Criminal Procedure (Application for leave to prefer a charge in the High Court) rules 1970 had been complied with by the prosecution and refused to set aside the leave granted to prefer the charge against the Appellant.
(c) Whether the Lower court was right in law in holding that the Presidential Broad cast indicting the Appellant before the trial is a mere opinion and was not prejudicial to the arraignment and trial of the Appellant.
(d) Whether the Lower court was right in law in holding that the constitutionality or otherwise of Section 53 (1) of the Corrupt Practices and Other Related Offences Act, 2000 can only be raised at the trial or address stage.
Mr. Oshe SAN earned counsel for the Respondent adopted their Brief filed on 22/310. He decided to take on all the issues as couched by all the appellants (except the grounds deemed abandoned) and these are:-
1. Whether the national broad cast of the President of the Federal Republic of Nigeria could prejudice the constitutional right to fair hearing of the appellants (1st Appellants Issue 2), 2nd appellants Issue 1 and 3rd appellants Issue 3).
2. Whether the Corrupt Practices and Other Related Offences Act which repealed the Corrupt Practices and Other Related Offences Act 2000 is subsisting thereby rendering invalid the charge made against the appellants under the latter Act (1st Appellants issue 1).
3. Whether the leave to prefer a charge was rendered invalid for non-attachment of the statements of proposed witnesses or any other document to the application for the said leave (1st appellants issue 3, 2nd appellants issue 3, 2nd appellants issue 2).
(4) Whether the Lower court was right in refusing to quash the charges against the appellants (3rd appellants issue 1).
(5) Whether the learned trial Judge did not consider the submissions of the appellants’ counsel and whether he failed to determine the appellants’ applications separately (2nd appellants issues 2 and 4).
(6) Whether the Lower court was right in holding that the constitutionality or otherwise of Section S3 (1) of the corrupt Practices and Other Related Offences Act, 2000 could only be raised at the trial or address stage (3rd appellant’s issue 4).
Without a doubt, the issues as crafted by the Respondent’s counsel seem more convenient and easier to use in the determination of this appeal and so I adopt them for that purpose.
ISSUE NO. 3:
Whether the leave to prefer a charge was rendered invalid for non-attachment of the statements of proposed witnesses or any other document to the application for the said leave (1st appellant’s issue 3, 2nd appellant’s issue 3, 3rd appellants issue 2).
Learned counsel for the 1st Appellant contended that there is no prima facie case made out against the Appellant and other Accused Persons having regard to the eloquent absence and inadequate statutory materials or ingredients to sustain the charges. That under the Criminal Procedure Code (Application for leave to prefer a charge in the High Court Rules (1970), the Application to prefer a charge should include a copy of the charge, the names and addresses of witnesses and the Proof of Evidence.
He cited Ohwovoioie v. FRN (2003) 2 NWLR (pt. 803) 176 at 189. He stated that the 3 written statements of the Star witness were not attached, apart from the fact that the star witness made contradictory statements on 20/03/05 and 22/03/05. That also not attached were the written statements of other key witnesses such as the Chairman of the Economic and Financial Crimes commission, as he was billed to testify as the main investigating officer who recovered the N50 Million naira from the Star witness (not from the 1st Appellant or other accused.) That what is required to prefer a charge is not a summary of the Evidence that the witnesses put forward but their written statements.
Mr. Nwufo for the last Appellant said the prosecution failed to meet the preconditions for preferring the charges and in consequence the charges are liable to be quashed.
Miss Abhulimen for the 2nd Appellant relied on the same case of Ohwovoriole v. Federal Republic of Nigeria (2003) 2 NWLR (pt.803) 176 at 189 and said the prosecution’s three legal violations are as follows:-
(a) The prosecution is not a persecutor to choose what evidence to put before a court of law and to retain evidence favourable to the accused.
(b) Withholding evidence.
(c) The statutory pre-conditions for preferring the charge were not met.
That on this ground and issue, the appeal should be allowed. Learned counsel for the 3rd Appellant, Mr. Gordy Uche said that an application can be successfully brought by an accused person to quash charges before the commencement of the trial notwithstanding that leave had earlier been granted to file such charges.
He cited Mohammed Abacha v. The State (2002) 11 NWLR (pt. 779) 437; Milton Ohwovoriole v. FRN (2003) 2 NWLR (pt. 803) 176.
He further stated that the charges against the 3rd Appellant namely counts 12 to 14 pursuant to Section 9 (1) (b) of the Corrupt Practices and Other Related Offences Act, 2000 disclosed no Offence. That Section 99 of that Act, under which the 3rd Appellant is charged, the operative and material word is “corruptly”. That the said offence is not a strict liability offence but one which requires the mental element ie the mens res and when that corrupt intent had no proof of evidence backing it the charges should be quashed.
Mr. Uche stated that a cursory look at counts 12, 13 and 14 shows that the word “corruptly” which formed an integral part of the charge against the Appellant and as envisaged by Section 99 of the Act is missing with total failure In consequence. That the material ingredients of the alleged offences are absent and the four count charge against the 3rd Appellant are defective and incurably bad. That the prosecution made no effort to amend the charge even after objection and thus the charges remain fundamentally defective and ought to be quashed. That a look at the Proof of Evidence at the Lower court disclose a prima facie case not made out against the Appellant upon which he should stand trial. He referred to the facts which were uncontroverted.
In response, learned counsel for the Respondent, Mr. Oshe SAN stated that Senator Chris Adjighije referred to as the Star witness had said he made a second and correct statement on 22nd March, 2005. He said the facts adduced in the statement of the witness bore out the Truth of what happened and supported the preferment and trial on the charges. That what is required is the proof of evidence or written statements of proposed witnesses and not both. That if the attachment of witness statements is mandatory as canvassed by the appellants then the question of inspecting the case diary will not arise. That the case of Ohwovoriole v. FRN (2003) 1 SCNJ 484 would not avail the Appellants since the facts are not apposite.
Mr. Oshe further submitted that it is not our law that statements of witnesses (made to investigating officers) must be attached to the application to prefer a charge under the Criminal Procedure Code (CPC). That Rule 3 of the Criminal Procedure (application for leave to prefer a charge in the High Court) rules 1970 has shown what should accompany an application for leave to prefer a charge. That the peremptory requirements of Section 122 CPC must be complied with before an order for production of the statements of prosecution witnesses can be made. That the non-attachment of the statements of proposed witnesses or any other document to the application to prefer a charge did not render invalid the leave granted by the count. He cited Gaji v. The State (1975) NNLR 98 at 109.
In Reply on points of law Mr. Nwufo for the 1st Appellant contended that the written statements of the accused persons and not a summary of the statements should be attached to the proof of evidence. That the provision is mandatory by the word MUST. That a case diary produced in court does not take the place of a written statement of the accused persons. He cited Ohwovoriole v. FRN (2003) ISCNJ 484 at 492; Ezenduka v. Maduka (1997) 8 NWLR (pt. 518) 635; Gaji v. The state (1975) NWLR (pt. 98) 109 at 111. That the failure of the prosecution to attach the 1st Accused person’s Statement (who denied the allegation) is because if attached it would have been against the Respondent’s said application and also bring into application the provisions of Section 49 (d) of the Evidence Act against the case of prosecution.
There are rules specifically made for the application to prefer charges under section 185 of the Criminal Procedure Code Law. Abacha v. The State (2002) 11 NWLR (pt. 779) 437 at 478 – 479; R v. Zik’s Press Ltd (1947) 12 WACA 202.
The procedure whereby a trial on indictable offence will be initiated by an application whether in the Judge’s chambers or in open, demands that the application be made ex-parte, at the back of the person to be tried, and this seeks a discretion not an absolute right. There must be clear particulars and facts to justify the exercise of the discretion. Therefore it is not the law, neither is it justice, to say that once the application is made on information and all necessary documents are attached, without more, the application to prefer a charge must be granted. There must be facts in the proofs of evidence to justify the grant of the application. Otherwise, indictments would be allowed to be tried where enough particulars are absent in the proofs of evidence. However an accused person should not be indicted to face trial which from the outset he should not face. The Supreme Court in Abacha v. The State (2002) 11 NWLR (pt. 779) 437; Ikomi v. The State (1986) 3 NWLR (pt. 28) 340; Egbe v. The State (1980) 1 NCR 341; Okoli v. State (1992) 6 NWLR (pt. 247) 381; Enuma v. The State (1997) 1 NWLR (pt. 479) 115.
Every charge on an indictment must be clear so that the person to be tried will understand the complaint against him. The accused must not be left in doubt as to what he is to face on trial, the more so when a criminal trial involves the liberty of the citizen being indicted. He cannot be made to speculate what is or not on the face of the indictment. In Abacha v. The State (supra) 498 504 -505; the Supreme Court held information as laid was defective in that whilst the appellant and 3 other co-accused were charged with conspiracy to murder and murder of Kudirat Abiola in counts 1 and 2, only the appellant was charged as an accessory after the murder to the same Kudirat Abiola committed by two different persons namely Mohammed Abdul a.k.a Katako and Aminu Mohammed in counts and 4 respectively in the same information. That was said to be misleading. The purpose of serving proofs of evidence upon an accused person is to give him the opportunity of knowing what the prosecution witnesses will state in court against him Abacha v. The State (2002) 11 NWLR (pt.779) 437 at 511; Ede v. State (1977) 1 FCA 95.
It is a requirement of the law that among what should accompany an application to a Judge for his consent to file an information are proofs of evidence of the witnesses whom the prosecution intends to call in support of the charges.
Although it is not specifically provided that the judge must be satisfied that prima facie case must be made out in the proofs of the evidence supplied along with the application for the Judge’s consent before he gives his required consent, this is definitely a requirement placed on the Judge in this decision in the matter could pass the required test of being judiciously and judicially made. Enuma v. State (1997) 1 NWLR (pt. 479) 115 at 120 – 121 per Akintan JCA (as he then was).
Speculation is not in the character of law and administration of justice and so the accused/appellant ought not to be sent into the realm of imagination to decipher what he is facing when his liberty is at stake. This is seen in the case In hand where the star witness made three statements. These statements ought to have been attached, so that the accused/appellant would know comprehensively what the issues are and prepare his defence.
It is for the reason of exactitude of what is at play that the provisions of Section 340 of the Criminal Procedure Code Law must be adhered to. See Biyu v. Ibrahim (2006) 8 NWLR (pt. 981) 1 at 60.
For an information preferred by consent of a Judge of the High Court pursuant to Section 340 (2) (a) and (b) of the Criminal Procedure Code to be presumed to have been properly instituted, the application for the consent must be accompanied by statements On oath or otherwise disclosing sufficient evidence of the commission of an offence.
Where the prosecution has nothing to offer at the time of arraignment in support of the offence charged, it would amount to an abuse of process of the Court to allow such an indictment to proceed. Ikomi v. State (1986) 3 NWLR (pt. 28) 340 SC.
The purpose of prescribing for a Judge’s consent to file information is to ensure that an innocent person is not unnecessarily subjected to the rigors or having to go through a trial for an offence of which there is no evidence to warrant his being put on trial. Thus, if a Judge wrongly gives his consent to the preferment of an information against an accused person who has not in any way been implicated in the proofs of evidence supplied along with the application for his consent, especially in the case in hand where the statements of the star witnesses were not attached such a decision would be regarded as a discretion not made judiciously but acting within the law if the trial judge refuses to quash such an information. Enuma v. State (1997) 1 NWLR (pt. 497) 115 at 121 – 122; Ikomi v. State (1986) 3 NWLR (pt. 28) 340.
Having regard to the prescription of the law prevailing and the directives in the judicial authorities it is glaring that the prosecution went below standard in what was presented for the consent of the trial Judge for the preferment of the charges. The conditions laid down under Sections 122 and 185 Criminal Procedure Code are absent. Therefore this issue No. 3 is answered in favour of the 1st, 2nd and 3rd Appellants and against the Respondent.
ISSUE NO. 1:
Whether the national broad cast of the President of the Federal Republic of Nigeria could prejudice the constitutional right of fair hearing of the appellants (1st appellant’s Issue 2, 2nd appellant’s Issue 1 and 3rd Appellant’s Issue 3).
Mr. Nwufo, learned counsel for the 1st Appellant said the National Broad cast of the President of Nigeria could affect a jury, including a judge sitting as a jury in a manner prejudicial to the Constitutional Right of the 1st Appellant to fair hearing. That what is important is not what the judge thought but whether or not a judge can be persuaded by the National broad cast by the President in a matter that eventually found its way to the Judge’s Court for adjudication and so prejudicial the mood of the judge just like the generality of Nigerians. That the intent to prejudice the minds of the public including judge or jury are found in the questions as to why the broadcast when the prosecution should have headed for the court and why the interim report broadcast without the Appellants being heard or their Statements even taken. That the test of fair hearing is that of the ordinary man watching the proceedings who would naturally expect that with the President affirming the guilt of the accused/appellants the judge to whom the matter would eventually go would follow in that mind.
Miss Abhulimen, learned counsel for the 2nd Appellant said there was manipulation of the judiciary and judicial process by the executive with that broadcast where in the guilt of the accused/appellant had been pronounced. That where there is communication to any person involved in deciding the fate of an accused by an accused by a person who can have “command influence” as in this case, such a communication vitiates the trial as being prejudicial. She cited Onyeukwu v. The State (2000) NWLR (pt. 681) 256 at 272 B – E.
Learned counsel for the 3rd Appellant stated, that the test of fair hearing in this case is that of the reasonable man who heard the Presidential broadcast and his mutual expectations that if the President of Nigeria has pronounced the appellant guilty, then of course he ought to be convicted accordingly. He cited Legal Practitioners Disciplinary Committee v. Gani Fawehinmi (1985) 2 NWLR (pt. 7) 300 at 309. That there was no legal basis for the executive trial and conviction of the Appellant by the President of Nigeria and a situation which amounted to a usurpation of the powers of the judicial arm of government by the Executive. Also, there was no basis or legal justification for the EFCC or ICPC to submit the report of their investigation to the President, who in turn will convict the suspects/accused persons via a National broadcast.
He cited Attorney General of Lagos State v. Attorney General of the Federation (2004) 18 NWLR (pt 904) 1 at 50, Section 36 (4) of the 1999 Constitution
That in the circumstance of this case, even the subsequent arraignment/trial of the Appellant in a Court of law, ought to be seen as double jeopardy, the Appellant having earlier been tried and convicted by the President. He stated further that the Appellant having established the illegality of the President’s action and having also established that his rights to fair hearing had been breached did not need to establish what he had actually suffered. That the issue is not whether the appellant actually committed the alleged offences, but whether his right to fair hearing had been breached by the said broadcast.
In response, learned counsel for the Respondent, Mr. Oshe SAN stated that the Appellant’s contentions are contrary to the contents of their affidavits and documents attached and that is that the Interim Report is dated 22/03/05 while the written Statements of the Accused/Appellants were made on the 20/03/05. The broadcast was made on the same date as the Interim Report that is 22/03/05. He stated on that the judge and jury cannot rubber stamp the opinion of the President who neither saw nor heard any witness. That the ordinary man is not a fool who cannot reason. He referred to Ojengbede v. Esan (2001) 12 SCNJ 401 at 412;
Orugbo v. Una (2002) 9 SCNJ 12 at 23.
Learned Senior Advocate for the Respondent said a trial is a public demonstration and testing before a court of a case by contending parties including the demonstration by the assertion, evidence and the testing by cross-examination and arguments. That the President is not the court, He cited ACTC v. NACB Ltd. (2003) FWLR (pt. 181) 1655 at 1661, 1678.
He said trial in a criminal case commences with arraignment which in turn consists of the charging of the accused or reading over the charge to the accused and taking his plea. He cited Ashakitipi v. The State (1993) 6 SCNJ 201 at 207. That the Appellants’ rights to fair hearing being breached before arraignment before the court does not arise.
It is well settled that the rules of natural justice apply to both judicial and administrative determinations. They are not limited to judicial decisions. The principle of natural justice applies in all cases where the preliminary investigation or inquiry is an integral or necessary part of a process which may terminate in action adverse to the interests of the applicant claiming the right to be heard. Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 2 NWLR (pt.7) 300.
Where the prosecutor acts as a persecutor the Court has always been quick to condemn such action. It is necessary to refer to the admonition of Craig JSC in Fawehinmi v. Akilu (No.2) (1989) 2 NWLR pt 102 at 207
“Whilst one appreciates the efforts of the Respondent to carry out a public duty, my view is that the prosecution of criminal offenders should be conducted within responsible limits. It should be borne in mind that relentless litigation offends against the norms of society, and consequently, beclouds the good intentions of a prosecutor in the end.
Such prosecution does little to advance the cause of justice”
That there was intent to prejudice the minds of the public including the judge who would be put on the spot with the influence of the National Broadcast of no less a personality than the Head of State is not in doubt. This is a clear example of the manipulation of the judiciary and judicial process by the executive; where the PFCC instead of sending the matter to court or the Federal Attorney General sends it to the President who determined the charge and pronounced guilt of the Accused/Appellants.
It is not appropriate to brand the Federal Government or Mr. President as a trustee in relation to the constitutional powers conferred on and exercisable by them; and thereby introduce the element of personal judgment or discretion over a justiciable dispute that may arise between an individual and the State. The President exercises executive powers under the Constitution and although the powers are awesome, they have known limits. The exercise of the powers is kept within bounds by the intervention of the rule of law. Abacha v. The State (supra) 513; Odofin Bello v. State (1966) 1 All NLR (reprint) 217.
Attorney General Lagos State v. Attorney General of the Federation (2004) 18 NWLR (pt. 904) 1 at 109 para D – H; Eshugbayi Eleko v. Officer Administering the Government of Nigeria (1931) AC 662; Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (pt. 18) 621.
The learned trial Judge had on this matter of the President’s broad case held:-
“On the Presidents broad cast, it could as best be described as his opinion and obviously has no impact whatsoever on the Judiciary which is completely separate and independent from the Executive. Lord Denning in his book “The Due Process of The Law” at page S3 has this to say:-
“NO professionally trained judge would be influenced by anything he read in the newspapers or saw on television”.
The Learned trial Judge went on:
“I equally think no professionally trained judge worth his salt will be influenced by any statement made by the President or anyone else except it is a judicial pronouncement by a Higher court of law which binds the Lower court by the doctrine of state decisis”.
The finding and conclusion of the learned trial judge would stand in a normal setting but not in the circumstances of this particular case where the report of the offence was made to the Economic and Financial Crimes commission on the 20th of March, 2005, which Commission produced an Interim Report on the 22nd of March 2005 that is two days after and on that same 22nd of March, 2005, none other than the President of Nigeria made a National Broad cast of the indictment of these accused persons/appellants. All these without a hearing from the Accused. It is indeed difficult to divorce the mind from the stature or command presence and authority of the President/Head of State and go on to say there was neither something strange in a criminal justice system operation nor a persecutory method at play. I am encouraged in this stance considering the warning of Belgore JSC (as he then was) in Abacha v. The State (supra) at 513 wherein he said such a persecution by the prosecution should be condemned as I do so now. This is because the prosecution after its interim report had to rush to BIG BROTHER with full power to give it further teeth beyond what was provided for in the law to ensure that all avenues of escape are blocked for an accused whose innocence has been guaranteed by the Constitutional provision in Section 6 (6) until proved otherwise in a Court of law and nowhere else.
All these before sending to the ICPC who then proceeded to court.
I answer this issue positively and in favour of the 1st, 2nd & 3rd Appellants.
ISSUE NO 2:
Whether the Corrupt Practices and Other Related Offences Act, 2003 which repealed the Corrupt Practices and Other Related Offences Act 2000 is subsisting thereby rendering invalid the charge made against the appellant under the later Act (1st Appellant’s Issue 1).
Mr. Nwufor, learned counsel for the 1st Appellant said that it is trite law that it is the function of the National Assembly to enact laws while it behooves on the courts to interprete the said laws. Also that the National Assembly has the further duty of repealing a Law or Act enacted by it.
That the courts can also nullify an Act or Law passed by the Assembly, but does not have the right to restore a law repealed by the National Assembly. He cited NEPA v. Atukpoi (2001) 1 NWLR (pt. 693) 96. He stated that the Corrupt Practices and Other Related Offences Act, 2000 was validly enacted by the National Assembly -and validated by the Supreme Court. However in 2003 the National Assembly repealed that 2000 Act and enacted the Act of 2003 and therefore the Act of 2000 was effectively repealed and ceased to exist and so charges against the Appellant and others under the 2000 Act would not stand being framed under a non-existent law. He cited Olafisoye v. F.R.N. (2004) 4 NWLR (pt. 864); Orthopedics Hospital Board v. Garba & ors (2002) 14 NWLR (pt. 788) 538 at 554 – 555; Abaye v. Ofili & anor (1986) 1 NWLR (pt. 15) 134; Uwaifo v. Attorney General Bendel State (1982) 7 SC 124.
In response, Mr. Oshe SAN for the respondent said the Federal High Court in Suit NO. FHC/ABJ/CS/225/21 between Attorney General of the Federation v. Chief Anyim Pius Anyim declared the ICPC Act 2003 as unconstitutional and void and since there was no appeal in the judgment remained the law and so the 2000 Act was the valid law. He urged the court to take judicial notice of the Anyim case (unreported) pursuant to Section 74 (1) of the Evidence Act. He cited FMBN v. NDIC (1999) SCNJ 57 at 78; Jikantoro v. Dantoro (2004) 5 SCNJ 152 at 179.
In reply on points of law learned counsel for the 1st Appellant said this court cannot take judicial notice of an unreported judgment as this court would not embark on a voyage of discovery. He referred to Jikantoro v. Dantoro (2004) 5 SCNJ 152 at 179.
The portion of the learned trial judge’s judgment in regard to the validity or otherwise of the corrupt Practices and other Related Offences Act 2000 under which the charge was made in view of the Corrupt Practices and Other Related Offences Act, 2003 reads as follows:-
“The 2003 Act having been declared void by the Federal High Court in the case of Attorney General of the Federation vs. Chief Anyim Pius Anyim and 3 others; my learned brother R.N. Ukeje, CJ – FHC held at pages 32, 33 and 34 (supra):
“I therefore reiterate that the ICPC Act 2003, passed on the 7th and 8th May, 2003 by the Defendants respectively without observance of the relevant due process of Law is unconstitutional and void. It is therefore, not the Law that this Court or indeed any other court of superior, competent jurisdiction cannot interfere with the National Assembly when it makes Laws (Section 4(8) of the 1999 Constitution)”.
“7. The Legislative, and the Executive arms of the Federal government are hereby restrained from taking any steps towards the implementation of provisions of the Corrupt Practices and Other Related Offences Bill 2003. Purportedly passed on 7th and 8th May, 2003 which is hereby suspended to await the assent or withholding of the Presidents assent, whenever the restraining Order by Egbo-Egbo, J, imposed pursuant to Suit No. FHC/ABJ/CS/93/2003, is lifted and the President becomes free to make that election. Meanwhile and in the final analysis, the corrupt Practices and Other Related Offences Act 2000, as construed and validated by the Supreme court in the Appeal in a suit between the attorney General of Ondo State and the Attorney General of the Federation 2000, remains the existing Law on the subject”.
The Learned trial judge further stated:
“Which I am convinced with, the 2000 Act, still remains the only valid law on Corrupt Practices and Other Related Offences. The 2003 Act having been declared void ab initio could not here repeal another law until it comes into full force as a law”.
When called upon to determine whether or not a peculiar legislation is inconsistent with the constitution, the court must first ascertain whether or not the matter to which the particular legislation related falls within any of the three categories of the legislative authority of the National Assembly as conferred under Section 4 (3) and (4) of the Constitution. Also whether the legislation is alive, or valid, as in this case where the 2000 Act is the valid law with that of 2003 already pronounced dead.
Attorney general Abia State v. Attorney General Federation (2006) 16 NWLR (pt.1005) 265; Attorney General Abia State v. Attorney General Federation (2002) 6 NWLR (pt. 763) 264.
The Appellant’s counsel not being able to convince one to depart from the finding of the learned trial judge I go along with that finding without hesitation and also hold that the 2000 Act of ICPC is the valid law and the charge under it cannot be impugned on a point of invalidity of the law of arraignment. I find against the 1st Appellant in this regard as I answer the question posed in the negative.
ISSUE NO 6:
Whether the Lower court was right in holding that the constitutionality or otherwise of Section 53 (1) of the corrupt Practices and Other Related Offences Act, 2000 could only be raised at the trial or address stage (3rd appellant’s issue 4).
Learned counsel for the 3rd Appellant, Mr. Uche submitted that the provision of Section 53 (1) of the ICPC Act 20000 is unconstitutional since it is contrary to the provisions of Section 36 (5) of the Constitution. That Section 53 of the Act raises a presumption of corruption and placing the onus of proof of his innocence on the accused person instead of the prosecution to prove the corrupt intent, thus reversing the onus of proof.
That this Court should invoke its powers under Section 1 (3) of the Constitution and void section 53 (1) of the ICPC Act for inconsistency with the Constitution which is the fons et origo and foundation of all laws. He cited Fasakin Foods (Nig.) Ltd v. Shosanya (2006) 10 NWLR (Pt. 987) 126; Attorney General Abia State v. Attorney General of the Federation (2006) 16 NWLR (pt. 1005) 265 at 389.
Mr. Oshe SAN, responding for the respondent said the learned trial Judge was right in holding that the issue of the Constitutionality of Section 53 (1) of the Act could not be raised at the preliminary stage but at the trial or final address. That even if this was not so, that decision had not occasioned a miscarriage of justice as it was not substantial an error. He cited Spasco v. Alraine (1995) 9 SCNJ 288 at 306 – 307; John Owhonda v. Alphonso Ekpechi (2003) 9 SCNJ 1 at 20. That Section 53 (1) of the Act is not inconsistent with Section 36 (5) of the 1999 Constitution. That under that Section 53, the prosecution has to establish that gratification has been demanded or obtained or offered before corruption is presumed. It is then the duty of the accused that the act was not done with a corrupt intent.
When faced with the matter of whether the constitutionality of the Act could be questioned at the stage it was before the trial judge, that is before the trial, he said:
“If Section S.3 (1) is unconstitutional, it could as well be challenged on that ground at the trial or even address. It is not a matter having to do with referral of charge(s) against the accused persons/applicants”.
The Constitution is supreme; it is the organic or fundamental law and it is the grundnorm of Nigeria. The Constitution is the fons et origo and foundation of all laws. This is why it has made provisions for the procedural law applicable in the various courts established by it in Sections 216, 227, 239, 244 and 249. Any act which infringes or runs contrary to those organic principles or systems or provisions must be declared to be inconsistent. The court has the jurisdiction to declare any other law or Act inconsistent with the provisions of the Constitution, invalid and therefore null and void. Fasakin Foods (Nig.) Ltd v. Shosanya (2006) 10 NWLR (pt. 987) 126 at 148 -149 per Ogbuagu JSC; Emerah & sons (Nig.) Ltd. v. Attorney General Plateau State (1990) 4 NWLR (pt. 147) 788; Attorney General Lagos State v. Dosunmu (1989) 3 NWLR (pt. lll) 552; Kalu v. Odili (1992) 5 NWLR (pt. 240) 130; Imonikhe v. attorney General Bendel State (1992) 6 NWLR (pt. 148) 296; Rossek v. A.C.B. Ltd. (1993) 8 NWLR (pt. 312) 382; Nuhu v. Ogele (2003) 18 NWLR (pt. 852) 251; Uwayo v. Attorney General Bendel State (1982) 4 NCLR 1; Ikine v. Edjerode (2001) 18 NWLR (pt. 745) 466; Attorney General Ogun State v. Attorney General Federation (2002) 18 NWLR (pt.798) 232; Labiyi v. Anretiola (1992) 8 NWLR (pt. 258) 139.
A constitutional challenge on the law can be made during trial, at address stage and even at the referral stage when it was made at the Court below. From what the trial judge said or rather from his language, “it could as well be challenged”, it seems to me he was not sure of what should obtain. My take on it is that the Appellants were at liberty to raise the Constitutionality of the Act at the time they did or even later. That is their right to exercise and me thinks it more convenient at the time they did. This issue is resolved in favour of the 3rd Appellant and against the Respondent.
ISSUES NOS. 5 & 4:
Whether the learned trial judge did not consider the submissions of the appellant’s counsel and whether he failed to determine the appellants’ application’s separately (2nd appellant’s issues 2 and 4).
Whether the Lower court was right in refusing to quash the charges against the appellants (3rd appellant’s issues 1).
Learned counsel for the 2nd Appellant, Miss Abhulimen stated that the issues raised in the submissions of counsel were so weighty that the learned trial judge formulated 19 issues for determination and when he took his decision made no reference to those submissions nor determine those issues framed by himself – and so the Appellants right to fair hearing had been infringed. She cited FHA v. Somner (1986) 1 NWLR (pt. 17) 533 at 548 C-D; Atoyebi v. Governor Oyo State (1994) 5 NWLR (pt. 344) 290 at 309 F-G; Obodo v. Oamen (1987) 3 NWLR (pt. 59) 111; Ihom v. Gaji (1997) 6 NWLR (pt. 509) 526 at 531 – 533 C; Salami v. Ogogun (1991) 2 NWLR (pt. 173) 291.
Responding, Mr. Oshe SAN, said, the application of the appellants were supported by affidavits and against by the counter affidavits. That it is trite that where there is direct conflict of affidavits on crucial facts or where affidavits are irreconcilably in conflict oral evidence from deponents and their witnesses if any should be heard. He cited Okotie v. Olugbor (1995) 5 SCNJ 217 at 230. That the appellants’ grouse herein is as to the trial Judge’s style in writing his ruling and certainly not on whether or not he evaluated the evidence or submissions. That there was nothing upon which what the Lower court did could be impugned. He cited Adamu v. The State (1991) 6 SCNJ 33 at 40; Awopeju v. The state (2001) 12 SCNJ 302.
Learned counsel for the 3rd Appellant, Mr. Uche said the charge should be quashed as the word “corruptly” which forms an integral part of the charge was missing contrary the provisions of Section 99 of the ICPC Act which defect is fatal. This inspite of the objection of the Appellant Also that counts 14 and 15 of the charge on the date of the commission of the offence was a future date being 6th December 2005. He further said that count 13 was bad for duplicity when compared to count 14. That these defects rendered the charge incurably bad and liable to be quashed. He cited Ikomi v. State (1986) 3 NWLR (pt. 28) 340; Enuma v. State (1997) 1 NWLR (pt. 479) 11; Obiosa v. Nigerian Air force (2000) 12 NWLR (pt. 680) 112; Opara v. State (2006) 9 NWLR (pt. 986) 508 at 516.
Learned Senior Advocate for the Respondent said the wrong date of 6th December 2005 instead of 6th December 2004 as date of commission of the offence was a mere slip and not fatal. He cited Section 208 Criminal Procedure Code; Rex v. Ijoma 12 WACA 200 at 222, 223. Also that there was no duplicity or Lumping between counts 13 and 14, as each was a distinct offence in keeping with Section 9 (1) (a) and Section 9 (1) (b) of the Act.
Mr. Oshe SAN said 3rd Appellant made a full confession of the crime of giving gratification and so cannot contend that the proof of evidence had not established a prima facie case against him. He cited Osidola v. Police (1958) NRNLR 42; Ikomi v. The State (1986) 3 NWLR (pt.28) 340.
In reply on points of law Mr. Nwufo for the 1st Appellant said that the Respondent cannot submit that the charges which are bad for duplicity and with wrong dates can be amended as arguments had been made, issues joined on them and a ruling delivered. Therefore that the counts or charges remained bad for duplicity and incurably defect.
He further argued that the single decision given in respect of several consolidated applications cannot be said to be the learned trial judge’s style since the law is settled that separate decisions must be given in respect of each application otherwise the accused persons would be denied their right to fair hearing, He cited Kalu v. Chima (2007) 17 NWLR (pt. 1062) 187 at 194.
I shall quote the charge upon which the Appellants herein with others now deceased and Senator John Azuta Mbata (who is not part of the present appeal) and who had had their names struck out of the appeal and it is as follows:-
” BETWEEN: CHARGE NO……….
FEDERAL REPUBLIC OF NIGERIA ] – COMPLAINANT
VS.
1. SENATOR ADOLPHUS WABARA ]
2. SENATOR IBRAHIM ABDULAZEEZ ]
3. SENATOR 3OHN AZUTA MBATA ] – ACCUSED
4. SENATOR EMMANUEL IKPEDE ]
5. SENATOR BADAMASI MACCIDO ]
6. HONOURABLE DR. GARBA SHEHU MATAZU ]
7. PROFESSOR FABIAN OSUJI ]
CHARGE
COUNT ONE:
That you, Senator Adolphus Ndaneweh Wabara, (M), Senator Ibrahim Abdulazeez (M), Senator John Azuta Mbata,(M), Senator Emmanuel Okpede, (M), Senator Badamasi Maccido, (M) and Honourable Dr. Garba Shehu Matazu, (M), on or about 2nd December, 2004, at Abuja, conspired with each other to commit a criminal offence under the Corrupt Practices and Other Related Offences Act 2000, by asking for the sum of N50,000,000.00 (Fifty Million Naira) gratification from Professor Fabian Osuji, in the name of PR to share amongst yourselves with regard to the passage of the year 2005 budget of the Federal Ministry of Education and thereby committed an offence contrary to Section 26 (1) (c) and punishable under Section 8 (1) of the Corrupt Practices and Other Related Offences Act 200.
COUNT TWO
That you, Senator Adolphus Ndaneweh Wabara, (M), Senator Ibrahim Abdulazeez (M), Senator John Azuta Mbata, (M), Senator Emmanuel Okpede, (M), Senator Badamasi Maccido, (M), and Honourable Dr. Garba Shehu Matazu, (M), on or about 2nd December, 2004, at Abuja, did corruptly obtain the sum of N50,000.000.00 (Fifty Million Naira) from Professor Fabian Osuji, for you to share amongst yourselves with regard to the passage of the year 2005 budget of the Federal Ministry of Education and thereby committed an offence contrary to 10 (a) (i) and punishable under Section 8 (1) of the Corrupt Practices And Other Related Offences Act 2000.
COUNT THREE
That you, Senator Adolphus Ndaneweh Wabara, (M), Senator Ibrahim Abdulazeez (M), Senator John Azuta Mbata, (M), Senator Emmanuel Okpede, (M), Senator Badamasi Maccido, (M), and Honourable Dr. Garba Shehu Matazu, (M), between 2nd December, 2004 and 6th December, 2004 or thereabout at Abuja, did corruptly obtain the sum of N50,000,000.00 (Fifty Million Naira) from Professor Fabian Osuji, for you to share amongst yourselves with regard to the passage of the year 2005 budget of the Federal Ministry of Education and thereby committed an offence contrary to Section 10 (a) (i) and punishable under Section 10 (a) (ii) of the Corrupt Practices And Other Related Offences Act 2000.
COUNT FOUR
That you, Senator Adolphus Ndaneweh Wabara, (M), Senator Ibrahim Abdulazeez (M), Senator John Azuta Mbata, (M), Senator Emmanuel Okpede, (M), Senator Badamasi Maccido, (M), and Honourable dr. Garba Shehu Matazu (M), between 2nd December, 2004 and 6th December, 2004 or thereabout, at Abuja, did corruptly obtain a consideration in the sum of N50,000,000.00 (Fifty Million Naira) from Professor Fabian Osuji, to share amongst yourselves as inducement with regard to the passage of the year 2005 budget of the Federal Ministry of education and you thereby………………..
COUNT SEVEN
That you, Senator Adolphus Ndaneweh Wabara, (M), Senator Ibrahim Abdulazeez (M), Senator John Azuta Mbata, (M), Senator Emmanuel Okpede, (M), Senator Badamasi Maccido, (M) and Honourable Dr. Garba Shehu Matazu, (M), between 2nd December, 2004 and 6th December, 2004 or thereabout at Abuja, conspired with each other to commit a criminal offence under the corrupt
Practices and Other Related Offences Act 2000, by using your positions as Legislators of the Federal Republic of Nigeria, to confer corrupt advantage upon yourselves by obtaining from Professor Fabian Osuji, the sum of N50,000,000.00 (Fifty Million Naira) and shared same amongst yourselves with regard to the passage of the year 2005 budget of the Federal Ministry of Education and thereby committed an offence contrary to Section 26 (1) (c) and punishable under section 19 of the corrupt Practices and Other Related Offences Act 2000.
COUNT EIGHT
That you, Senator Adolphus Ndaneweh Wabara, (M), Senator Ibrahim Abdulazeez (M), Senator John Azuta Mbata, (M), Senator Emmanuel Okpede, (M), Senator Badamasi Maccido, (M), and Honourable Dr. Garba Shehu Matazu, (M), between 2nd December, 2004 and 6th December, 2004 or thereabout at Abu, being public officers, did use your positions as Legislators of the federal Republic of Nigeria, to confer corrupt advantage upon yourselves by obtaining from Professor Fabian Osuji, the sum of N50,000,000.00 (Fifty Million Naira) and shared same amongst yourselves with regard to the passage of the year 2005 budget of the Federal Ministry of Education and thereby committed an offence contrary to and punishable under Section 19 of the Corrupt practices and Other Offences Act 2000.
COUNT NINE
That you, Senator Adolphus Ndaneweh Wabara, (M), Senator Ibrahim Abdulazeez (M), Senator John Azuta Mbata, (M), Senator Emmanuel Okpede, (M), Senator Badamasi Maccido, (M) and Honourable Dr. Garba Shehu Matazu, (M), between 2nd December, 2004 and 6th December, 2004 or thereabout at Abuja, being Legislators of the federal Republic of Nigeria, were offered gratification by Professor Fabian Osuji, in the sum of N50,000,000.00 (Fifty Million Naira) to share amongst yourselves and failed to report the said offer of the gratification to an officer of the Independent Corrupt Practices And Other Related Offence contrary to Section 23 (1) and punishable under Section 23 (3) of the corrupt Practices and Other related Offences Act 2000.
COUNT TEN
That you, Senator Adolphus Ndaneweh Wabara, (M), on or about 6th December, 2004, at Abuja, did receive the sum of N5,000,000:00 (Five Million Naira) from Professor Fabian Osuji for yourself as gratification for intervening in the dispute regarding the year 2005 budget of the Federal Ministry of education and you thereby committed an offence contrary to Section 10 (a) (i) and punishable under Section 10 (a) (ii) of the corrupt Practices And Other Related Offences Act 200.
COUNT ELEVEN
That you, Senator Adolphus Ndaneweh Wabara, (M), on or about 6th December, 2004, at Abuja, did corruptly obtain from Professor Fabian Osuji, the sum of N5,000,000:00 (Five Million Naira) for yourself as a reward for assisting the 2nd accused person in respect of the passage of the year 2005 budget of the Federal Ministry of Education and thereby committed an offence contrary to Section 17 (1) (a) (i) and punishable under Section 17 (1) (c) of the Corrupt Practices And Other Related Offences Act 2000.
COUNT TWELVE
That you, Professor Fabian Osuji, (M), between 2nd and 6th December, 2004 or thereabout, at Abuja, did give gratification in the sum of N50,000,000:00 (Fifty Million Naira) to the former Senator president Senator Adolphus Ndaneweh Wabara, Senator Ibrahim Abduiazeez (M), Senator John Azuta Mbata, (M), Senator Emmanuel Okpede, (M), Senator Badamasi Maccido, (M), and Honourable Dr. Garba Shehu Matazu, (M), to facilitate the passage of the year 2005 budget of the Federal Ministry of Education and thereby committed an offence contrary to and punishable under Section 9 (1) (b) of the Corrupt Practices And Other Related Offence Act 2000.
COUNT THIRTEEN
That you, Professor Fabian Osuji, (M), on or about 6th December, 2004, at Abuja, did offer gratification in the sum of N5,000,000:00 (Five Million Naira) to the former Senator President Senator Adolphus Ndaneweh Wabara, as appreciation for summoning a meeting with some members of the Education Committees of the National Assembly with regard to the year 2005 budget of the Federal Ministry of Education and thereby committed an offence contrary to and punishable under Section 9 (1) (b) of the Corrupt Practices and Other Related Offences act 2000.
COUNT FOURTEEN
That you, Professor Fabian Osuji, on or about 6th December, 2005, at Abuja, gave the sum of N5,000,000.00 (Five Million Naira) to the former Senate President, Senator Adolphus Ndaneweh Wabara, for summoning a meeting with some members of the Education committees of the National Assembly with regard to the year 2005 budget of the Federal Ministry of Education and you thereby committed an offence contrary to Section 9 (1) (a) and punishable under Section 9 (1) (b) of the Corrupt Practices and Other Related Offences Act 2000.
COUNT FIFTEEN
That you, Professor Fabian Osuji, on or about 6th December, 2005, at Abuja, being Minister of Education did give gratification to the former Senator President, Senator Adolphus Ndaneweh Wabara, (M), Senator Ibrahim Abdulazeez (M), Senator John Azuta Mbata, (M), Senator Emmanuel Okpede, (M), Senator Badamasi Maccido, (M), and Honourable Dr. Garba Shehu Matazu, (M) in the sum of N50 M (Fifty Million Naira) to share amongst themselves and failed to report same to an officer of the Independent Corrupt Practices and Other Related Offences Commission or a police officer and thereby committed an offence contrary to Section 23 (2) and punishable under Section 23 (3) of the Corrupt Practices and Other Related Offences Act 2000.
DATED THIS 11th DAY OF APRIL, 2005
(SGD.)
SANUSI KADO, ESQ.,
PRINCIPAL LEGAL OFFICER,
FEDERAL MINISTRY OF JUSTICE,
FOR: THE HONOURABLE ATTORNEY GENERAL OF THE FEDERATION PLOT 802, CONSTITUTION AVENUE, CENTRAL AREA
ABUJA”
The Appellants contention is that even though consolidated each application should have had a distinct handling not a lumping together of summation and decision. The Respondent disagreed submitting that no miscarriage of justice was occasioned.
It is necessary to point out that the Court faced with consolidated suits or applications ought not to lose sight of the distinct identity of each applicant and his application in relation to the other applicants.
Consolidated applications or suits are tried and resolved in the same proceedings. However it must be noted that each suit remains separate and distinct and its own judgment must be given separately at the end of the common trial. The reasoning being that the consolidation of suits does not render evidence accepted in one suit ipso facto evidence in the other. Per Rhodes-Vivour 3CA, in Kalu v. Chima (2007) 17 NWLR (pt.1062) 187 at 194 D-F; Dugbo v. Kporoaro (1958) SCNLR 180; Iloabuchi v. Ebigbo (2000) 8 NWLR (pt. 668) 197; Diab Nasr v. Complete Home enterprises (Nig.) Ltd. (1977) 5 SC 1.
It is the duty of an intermediate appellate court to consider and pronounce on all issues properly raised before it except where it is of the view that a consideration of one of the issues raised is enough to dispose of the matter, in which case it is not under any obligation to consider all the issues raised. Where a court fails in its duty to consider all issues, a finding that a miscarriage of justice has taken place may be made unless the circumstances do not bear that out as for instance where the irregularity is not of a substantial nature so as to prejudice any of the parties. Onochie v. Odogwu (2006) 6 NWLR (pt. 975) 65 at 90 – 92 SC; Araka v. Ejeawu (2000) 15 NWLR (pt. 692) 684; Owodunni v. Registered Trustees of C.C.C. (2000) 10 NWLR (pt. 675) 315; Ifeanyichukwu (Osondu) Co. Ltd v. Soleh Boneh (Nig.) Ltd. (2000) 5 NWLR (pt. 656) 322; 7 -Up Bottling Co. Ltd v. Abiola & Son Bottling Co Ltd (2001) 13 NWLR (pt. 730) 469; Ayisa v. Akanji (1995) 7 NWLR (pt.406) 129.
The need for this method of trial in consolidated applications or suits is so as not to run foul of the principles of fair hearing to which each applicant or party is entitled. Since once there has been denial of fair hearing as guaranteed under Section 36 (1) of the Constitution 1999, the whole proceedings automatically becomes vitiated as a basic and fundamental irregularity which renders them null and void. See Ojengbede v. Esan (2001) 12 SCN3 401.
Fair hearing is not a technical doctrine but a rule of substantial justice and to affect a judgment based on its breach, it has to be shown to have been infringed or clearly threatened with infringement and not merely suspected to have been infringed.
One cannot say enough of this matter of fair hearing during the course of this determination as it is of the essence.
The fair hearing principle entrenched in the Constitution is so fundamental in the judicial process or the administration of justice that breach of it will vitiate or nullify the whole proceedings and a party cannot be heard to say the proceedings were properly conducted and should be saved because of such proper conduction. Once an appellate court comes to the conclusion that there is a breach of the principle of fair hearing, the proceedings cannot be salvaged as they are null and void ab initio.
Fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. Accordingly, where a court arrives at a correct decision in breach of the principle of fair hearing, an appellate court will throw out the correct decision in favour of the breach of fair hearing. Indeed in the instant case the fair hearing rights of the appellants were compromised in the procedure of the learned trial Judge. See Akoh v. Abuh (1988) 3 NWLR (pt. 85) 696.Orugbo v. Una (2002) 9 SCNJ 12 at 22; Creekay Traders Ltd. v. General Motors Co. Ltd. (1992) 2 NWLR (pt. 222) 132; University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (pt. 393) 376.
When an application is made to quash an indictment on an information, it is necessary for the trial court to attend to such an application dispassionately and rule on it. The best way to do this is to read all the depositions made by potential witnesses and accused persons so as to find if there is a prima facie case for the accused to answer. Per Belgore JSC (as he then was). Abacha v. The state (2002) 11 NWLR (pt.779) 437 at 486.
The term prima facie is difficult to define precisely. However facts that clearly reveal a crime and show that the accused person is linked with it may be prima facie evidence that the accused has something to explain at the trial. But this is not always the whole that is needed as the circumstance must indicate.
Prima facie means that there is ground for proceeding and 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. 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. Thus, if the facts in a deposition whether on oath in preliminary investigation or not on oath in mere statements attached to an information do not disclose a prima facie case the indictment must be quashed. Abacha v. The State (2002) 11 NWLR (pt. 779) 437 at 486; Ajidagba v. Inspector General of Police (1958) SCNLR 60, Okoro v. The State (1988) 5 NWLR (pt.94) 255.
“In deciding whether a prima facie case exists for the accused to answer an information for indictment, the authorising Judge, or the Judge before whom the indictment is placed, must look at the proofs of evidence attached to the information in totality and not to pick words out of con.
The idea of indicting through information is to save time in prosecution by obviating the necessity for a preliminary investigation before a Magistrate. Thus, the entire proofs of evidence; that is statements from relevant persons and perhaps also the suspect must be read and considered. It is not a mere formality to accept the information without considering the proofs of evidence. This is because to face a trial is a serious matter as it infringes on the liberty of the subject”. Per Onu JSC in Abacha v. State (2002) 11 NWLR (pt.779) 437; Ikomi v. The State (1986) 3 NWLR (pt. 28) 340; Egbe v. The state (1980) 1 NCR 341; Adeyemi v. The State (1991) 6 NWLR (pt. 195) 1; R v. Coker (1952) 20 NLR 62.
The style used by the learned trial judge in evaluating evidence is not a matter for straight-jacketing but some basic standards must be adhered to. The essential thing is that all the evidence adduced must be considered before a judge concludes his judgment.
It is to be reiterated that the trial judge has a duty to consider all the evidence before him, especially in a criminal case where the guilt of the accused must be proved beyond reasonable doubt. The justice of a case and the statutory requirements will not be met if the trial court considers one side of the case only and so the necessity to evaluate all the evidence whichever style a judge adopts the important thing is that he consider all the evidence before him. In that he would have complied with what the law requires. Awopeju v. The State (2001) 12 SCNJ 293 per Mohammed JSC ; Akibu v. Oduntan (2000) 7 SCNJ 189.
Trials in criminal cases commence with the arraignment of the accused person and arraignment in turn consists of the charging of the accused or reading over the charge to the accused and taking his plea thereon in accordance with the provisions of section 185 of the Criminal Procedure Code. That is the precondition to the accused’s entitlement to the fair hearing provisions in Section 36 of the 1999 Constitution that is to be tried within a reasonable time. Asakitikpi v. State (1993) 5 NWLR (pt.296) 641 at 652 per Uwais JSC (as he then was; in Oyediran v. Republic (1967) NMLR 122 at 125.
Fair hearing which is entrenched in the Constitution is based on determining or testing the constitutionality of a trial in terms of procedure. It is a very fundamental principle of law which the parties and the courts are free to apply in relevant situations in relation to the facts of the case and not in a vacuum. Accordingly, where the facts of the case reject the principle, the court will have no competence to force the principle of law on the case. Orugbo v. Una (2002) 9 SCNJ 12 at 23.
The issue of jurisdiction can be raised at any stage of a case and even viva voce, but if at the trial, on appeal to the Court of Appeal or to the Supreme Court. It can be raised once it is apparent to any party that the court may not have jurisdiction, a fortiori the court can raise it suo motu.
Petrojessica Enterprises Ltd. v. Leventis Trading Co. Ltd (1992) 5 NWLR (pt. 244) 675 at 693 and 696 SC; Osadebay v. Attorney General Bendel State 1991) 1 NWLR (169) 525; Owoniboys v. Technical Services Ltd, v. John Molt Ltds. (1991) 6 NWLR (pt 199) 550; Okesuji v. Lawal (1991) 1 NWLR (pt.170) 661; Katta v. C.B.N. (1991) 9 NWLR (pt. 214) 126; Utih v. Onoyivwe (1991) 1 NWLR (pt. 166) 166.
In a criminal case, the doubt arising from a weakness in the case of the prosecution must be construed in favour of the accused. Opara v. State (2006) 9 NWLR (986) 508 at 527 per Fabiyi JCA (as he then was); Obiosa v. Nigerian Air Force (2000) 12 NWLR (pt.680) 112.
It is not every mistake or error in judgment that will result in an appeal being allowed. It is only when the error is substantial in that it has occasioned a miscarriage of justice that an appellate court is bound to interfere. Per Mudsdapher JSC; John Owhonda v. Alphonso Ekpechi (2003) 9 SCNJ 1; Atoyebi v. Governor of Oyo State (1994) 4 NWLR (pt. 343) 290; Onajobi v. Olanipekun (1985) USC (pt.2) 156; Gwonto v. State (1983) 1 SCNLR 142; Ojer Babalola (1991) 4 NWLR (pt. 185) 267; Ukejianya v. Uchendu (1950) 13 WACA 45; Ike v. Ugboaja (1993) 6 NWLR (pt. 301) 539; Anyanwu v. Mbara (1992) 5 NWLR (pt. 242) 386.
The addition of the words, “before final judgment” to the phrase “at any stage of the proceedings” puts statutory emphasis on the meaning of the phrase and means that the power of the court to do anything may be exercised at any time before delivery of final judgment, but not thereafter.
Therefore the power of amendment possessed by the court to amend at any stage of the proceedings is exercisable even where it has adjourned the case for judgment but before the judgment is delivered. That principle cannot avail the Respondent in respect to this fundamental error in the charge where the offence was put in the charge as occurring on 6th December, 2005 a future date instead of 6th December, 2004. Even when the Appellant objected, there was no rectification.
Akoh v. Abuh (1988) 3 NWLR (pt. 85) 696 SC; Ezenwa v. Mazeli (1955) 15 WACA 67.
The learned trial judge had said there was no infraction of the Appellants’ right to fair hearing and that a prima facie case had been properly made out against them and what the prosecution did with the proof of evidence was sufficient. I would like to quote him to elicit the raison d’etre of his decision and that is:-
“The next question is whether the accused persons were accorded or denied their fundamental right to fair hearing. Having been duly informed about the various allegations against them and properly cautioned before making their statements and also brought before the court after grant of leave to prefer charges against them to their full understanding and their respective pleas taken could hardly be said to have been denied their right to fair hearing as held by the Supreme Court in the case of Keke v. The State (supra).
It must be understood that prima facie case, does not mean strong case capable of securing conviction. It will suffice if there is such evidence sufficient to justify conducting trial upon reasonable grounds of accusation of offences known to law, not even necessarily the provisions charged. The leave was, therefore, properly granted in this case and I do hold.
The prosecution has in this case brought statements made by accused persons along with briefs of witnesses’ as statements of proof of evidence. The allegation of an abuse of court process is one that ought to be substantiated. There is so far nothing shown as amounting to an abuse of court process by the learned senior counsel.”
It is difficult for me to go along with his reasonings since the procedures to be followed were by-passed substantially by the prosecution who ought to attach in the proofs of evidence the Statements of the witnesses and of the accused and the prosecution failed to do so. Also present were a lot of lapses which can be interpreted to mean that the provisions of the Criminal Procedure (Applications for leave to prefer a charge in the High Court) Rules 1970 had not been complied with, and brought into being what the Supreme Court had variously warned against that of pushing the accused into speculating on what he was faced with.
Also cannot be ignored is the fact that not considering each of the applications even if briefly but separately within the Ruling was akin to denying the each Appellant the right of being heard. That is a situation of a grave nature that cannot be waved aside. These infractions happening to each of the appellants, each application to have the charge quashed ought to have been favourably considered. I rely on the following cases:- Kalu v. Chima (2007) 17 NWLR (pt.1062) 187; Onochie v. Odogwu (2006) 6 NWLR (pt. 975) 65; Ayisa v. Akanji (1995) 7 NWLR (pt.406) 129; Akoh v. Abuh (1988) 3 NWLR (pt. 85) 691; Orugbo v. Una (2002) 9 SCNJ 12; Abacha v. The State (2002) 11 NWLR (pt.779) 437 at 486.
I answer the question posed in Issue 5 positively and that is that each of the issues raised by the appellants ought to have been considered so that each appellant would have the satisfaction that he was heard and his submissions considered even if overruled. As a follow up to that Issue 5 and even other issues, it is evident that each of the applications to have the charges quashed ought to have been given a favourable consideration as the circumstances existing in the prosecution before and in the course of the proceedings at the Lower court left no doubt the prosecution went off the track within the law and practice in the attempt at prosecuting the accused/appellants. The applications to quash the charges were meritorious and should have been granted. Therefore I answer Issue No. 4 positively in favour of the Appellants.
In conclusion this appeal is allowed as being meritorious. I set aside the decision and orders of the Court below, that is the High Court of the Federal Capital Territory; while I quash each of the 15 counts charge, because the arraignment and prosecution infracted the necessary constitutional provisions in relation to accused persons. The charges are to be quashed and it is ordered. The Charge against 1st Appellant Adolphus Wabara in counts 1, 2, 3, 4, 7, 8, 9, 10, 14; The charge against the 2nd Appellant, Senator Ibrahim Abdulazeez in counts 1, 2, 3, 4, 5, 7, 8, 9; The four count charges against 3rd Appellant, Prof. Fabian Osuji in counts 12, 13, 14, 15 are quashed and each of the Accused/Appellant discharged in their respective charges.
JIMI OLUKAYODE BADA, J.C.A.: I read before now, the lead Judgment of my Lord, MARY U. PETER-ODILI, J.C.A just delivered and I agree with my Lord’s reasoning and conclusion.
I am also of the view that there is merit in this appeal and it is allowed by me. I endorse the consequential orders made in the said lead Judgment.
ABDUL ABOKI, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, Mary U. Peter-Odili, J.C.A. I agree with my Lord that this Appeal is meritorious and should be allowed. I also set aside the decision and Orders of the High Court of the Federal Capital Territory whilst quashing the 15-count charge against the accused persons.
Appearances
K. C. Nwufo, U. C. Ndubuisi
Paulyn Abhulimen, Njideka Odili
Gordy Uche Esq., G. N. Chukwukere Chinelo Nnam-Obi (Mrs.), Doris Eziokwu (Mrs.), Babatunde Daniel Esq.For Appellant
AND
E. A. Oshe SAN, J. O. Bayeshea SAN, Samuel Ipinlaye, R. S. BayesheaFor Respondent
