SENATOR NICHOLAS YAHAYA UGBANE v. FEDERAL REPUBLIC OF NIGERIA & ORS
(2010)LCN/4024(CA)
In The Court of Appeal of Nigeria
On Monday, the 1st day of November, 2010
CA/A/02/2010
RATIO
PRIMA FACIE CASE : DEFINITION OF THE WORD “PRIMA FACIE CASE”
The Black’s Law Dictionary, 6th Edition defines ‘prima facie case’ at page 1190 as follows:- “A case which has proceeded upon sufficient proof to that stage where it will support finding if evidence to contrary is disregarded.” PER PAUL ADAMU GALINJE, J.C.A.
PRIMA FACIE CASE: WHEN CAN IT BE SAID THAT THE EVIDENCE AGAINST AN ACCUSED DISCLOSES A PRIMA FACIE CASE
The evidence against an accused discloses a prima facie case when it is such that is uncontradicted and if believed, will be sufficient to prove the case against the accused. Where there is a ground for proceeding with the case, it can safely be said that a prima facie case has been made. In other words, it may be concluded that something has been produced to make it worthwhile to continue with the proceeding, See DURU VS NWOSU (supra); OKORO v. STATE (1988) 5 NWLR (PT.94) 225. In IKOMI VS THE STATE (supra) Coker JSC held:- “It is the suspicion which leads to investigation and discovery of evidence against the suspect. Suspicion alone is not enough to justify proffering a charge against a person. There must be evidence linking the suspect with the offence. There ought to be sure evidence however remote which calls for some explanation from the suspect. At the stage of deciding whether to prefer charge. The prosecutor is not obliged to decide as a trial judge should, whether the evidence available is cogent enough to justify a conviction.” PER PAUL ADAMU GALINJE, J.C.A.
PRIMA FACIE CASE: WHAT A COURT IS EXPECTED TO DO WHEN CONSIDERING WHETHER OR NOT THE FILED INFORMATION DISCLOSED A PRIMA FACIE CASE
It must be stressed that at the stage of looking at the information filed in Court to find out if a prima facie case was disclosed, the Court is not called upon to look for proof of an alleged offence by assessing the evidence contained in the information. All that the Court is expected and supposed to do at that stage is to look for facts which clearly reveal an offence and also show that the person/s named are linked with it such that explanation s are necessary from them. CHIANUGO v. STATE (2002) 2 NWLR (750) 225; AMINU v. STATE (2005) 2 NWLR (909) 180. PER MOHAMMED LAWAL GARBA, J.C.A.
PRIMA FACIE CASE : DEFINITION OF THE WORD “PRIMA FACIE CASE”
In YAV v. STATE (2005) 5 NWLR (917) 1 at 22, this Court in line with the definitions in the cases cited in the lead judgment, defined a prima facie case as follows:- “Prima facie case in criminal trial in a sense only, means that there is ground for proceeding. At that stage, whether the evidence is sufficient to ground a conviction is not the issue. When a court stales that a prima facie case has been made out or that evidence discloses a prima facie case, it means that the evidence is such that if uncontradicted and if believed, is sufficient to prove the case against the accused.” PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
SENATOR NICHOLAS YAHAYA UGBANE – Appellant(s)
AND
1. FEDERAL REPUBLIC OF NIGERIA
2. ENGR. SAMUEL IBI GEKPE
3. DR. ABDULLAHI ALIYU
4. SIMON KIRDI NANLE
5. ENGR. LAWRENCE KAYODE OREKOYA
6. ABDULSAMAD GARBA JAHUN
7. BARRISTER KAYODE I. OYEDEJI
8. HON. NDUDI ELUMELU
9. HON. JIBO MOHAMMED
10. CHIEF PAUL BABA ADAMA – Respondent(s)
PAUL ADAMU GALINJE, J.C.A. (Delivered The Leading Judgment): The Appellant herein was arraigned along with eight other persons before the High Court of the Federal Capital Territory charged with aiding and abetting the Commission of several economic crimes and conspiracy to commit same under the Penal Code, by the Economic and Financial Crimes Commission on the 16th of October, 2009. In all there were a total of 130 counts charge.
During the pendency of the case at the lower court, the Appellant filed an application dated 21st of October, 2009 before that court, wherein he sought for an order quashing the charges against him on the ground that the proofs of evidence and the statements of witnesses do not disclose any prima facie case against him. The Appellant’s application was heard and in a reserved and considered ruling delivered on the 10th day of November 2009, Banjoko J. dismissed same and ordered for accelerated hearing of the criminal case pending before him.
The Appellant is dissatisfied with the ruling of the lower court. Being dissatisfied and aggrieved, the Appellant appealed to this Court. His notice of appeal dated 12th November 2009 and filed on the 13th of November 2009, contains three grounds of appeal. These grounds of appeal without their particulars read as follows:-
1. The learned trial judge erred in law when he said:
“In the light of the above Supreme Court authorities, and the proof of evidence before the Court, I am satisfied that a prima facie case has been established, sufficient for the case to proceed to hearing.”
2. The learned trial judge erred in law when he held thus:
“At this stage of the case, I will resist the temptation to delve into the evidence and analyse same in con of the veracity of the evidence, the proof or otherwise of the various allegations and whether or not the evidence adduced is credible or whether it can sustain a conviction.”
3, The learned trial judge erred when he failed to quash the charge against the Appellant pursuant to Section 3 of the legislative Houses (Power & Privileges) Act, Cap L72, Laws of the Federation of Nigeria.”
The Appellant and the 1st respondent each filed a brief of argument.
The rest did not file any brief. This appeal will therefore be determined on the two briefs of argument only. At page 12 of the Appellants brief of argument dated 28th of December 2009 and filed on the 7th January 2010, Mr. S.I. Ameh, learned senior counsel who settled the Appellant’s brief of argument formulated two issues for the determination of this appeal. The two issues so formulated read as follows:-
I. Whether the trial court was right when it held that there is a prima facie case made out against the Appellant (f Accused person) to warrant putting him on trial of the alleged offence.
ii. Whether the alleged acts of the Appellant (3rd Accused person) which were as stated in the charge done in his capacity as Chairman Senate Committee on Power are privileged and thereby conferring immunity on him from prosecution”
On issue one, learned senior counsel for the Appellant submitted that the proof of evidence which contains the statement of the Appellant and other accused persons, at the lower court, statements of potential witnesses, as well as the documentary evidence related to this case did not link the Appellant with the offences of conspiracy and abetment alleged in the charge filed at the lower court. According to the learned senior counsel, the entire proof of evidence did not disclose a prima facie case against the Appellant that will warrant him being put through a trial. Learned senior counsel urged this Court to invoke its inherent power to quash the charges in order to safeguard the Appellant from being put through an. oppressive and worthless prosecution. In a further argument, learned senior counsel set out the definition of prima facie case as proffered in SHER SINGH VS JITENDDRANTHEN, (citation not given) and quoted with approval in AJIDAGBA VS INSPECTOR GENERAL OF POLICE (1958) 3 FSC 5. In addition learned senior counsel cited the case of ABACHA v. THE STATE (2002) FWLR (PT.118) 224 at 1277 paragraph C-D. Thereafter learned senior counsel submitted that conspiracy as an offence is no where defined in the Penal Code. For this reason, he resorted to common law for guidance as he examined the ingredients of the offences of conspiracy and abetment contrary to Sections 97 and 83 (b) of the Penal Code and conclude that the dereliction of the lower court in not considering the proof of evidence and analysing same, has substantially occasioned miscarriage of justice.
To that extend this Court is urged to set aside the ruling of the lower court and to hold that no prima facie case was established against the Appellant. In aid learned senior counsel cited NWOSU v. THE STATE (2004) 15 NWLR (PT.897) 466, AMACHREE v. NIGERIAN ARMY (2004) 3 NWLR (P7.807) 256 ATUMA v. STATE (2006) 10 NWLR (PT.989) 452, ISHOLA v. THE STATE (1972) 10 SC 63 at 76-77; DOSO AWANZE & 6 ORS v. TIV NATIVE AUTHORITY (1966) NMLR 167 ONWOVORIOLA, SAN v. FRN (2002) FWLR (PT.94) 1 at 27 paragraph B’C and a host of other authorities.
In reply, Chief Godwin O. Obla, learned counsel for the 1st Respondent set out the definition of conspiracy as provided for under Section 96 (1) and (2) of the Penal Code to rebut the claim of the learned senior counsel for the Appellant, that the offence of conspiracy is not defined anywhere in the Penal Code and submitted that prima facie simply means “a ground for proceeding”, and no more. In aid learned Counsel cited MOHAMMED SANI ABACHA v. THE STATE (SUPRA) 2002 11 NWLR (PT.779) 437 at 445-446 UBANATU VS COP (2000) NWLR (PT.643) 115 at 129 paragraphs A-D
AJIDAGBA v. INSPECTOR GENERAL OF POLICE (1958) SCNLR 60, SINGH VS JITENDDRANTHEN (supra) (1931) I.L.R. 50 Calc.275, DURU v. NWOSU (1989) 1 NWLR (Pt.113) 24 at 43 IKOMI v. THE STATE (1986) 3 NWLR (pt.28) 340.
In a further argument, learned counsel submitted that at the stage when the lower court was called upon to determine whether a prima facie case existed against the Appellant, that court was not concerned with the guilt or otherwise of the Appellant, which can only be determined at the conclusion of trial. According to the learned counsel, the trial judge was right when he declined to review the proof of evidence, In aid learned counsel cited Sarkar on criminal Procedure, 8th Edition at page 826, and the case of JOLLY TERVORU NYAME vs FEDERAL REPUBLIC OF NIGERIA unreported appeal NO. SC/36/2009 delivered on 5th March, 2010. Still on this issue, learned counsel submitted that on a careful perusal of the proof of evidence in support of the charge at the lower court including the petition of December, 2008 by one Amos Amoda Dirisu, the various statements of witnesses and other documentary evidence attached to the said charge and in the event that the said proof of evidence remain unchallenged, there is a ground for calling on the Appellant to explain his role in the entire case of conspiracy and abetting criminal breach of trust, conversion, criminal misappropriation and theft allegations in the financial matters of Rural Electrification Agency. Learned counsel made reference to the statements of 2nd and 3rd Respondents at pages 3-18, 19-66 and documents at pages 240-255 of the record and submitted that these documents reveal the role or conduct of the Appellant and the 2nd-9th Respondents which is replete with incidences of perverse and suspicious dealings in the financial matters of Rural Electrification Agency. Finally learned counsel submitted that all the cases cited in the Appellant’s brief of argument do not apply to this appeal because in all those cases the accused person had being convicted after full trial, whereas in the instant case, the 1st Respondent has not opened its case not to talk of leading evidence in support of same. Learned counsel then urged this Court to resolve the first issue in favour of the 1st Respondent,
The first issue for the determination of this appeal revolves around the meaning of “prima facie case.” The Black’s Law Dictionary, 6th Edition defines ‘prima facie case’ at page 1190 as follows:-
“A case which has proceeded upon sufficient proof to that stage where it will support finding if evidence to contrary is disregarded.”
Both the Appellant’s and the 1st Respondent’s counsel have agreed on a common definition of “prima facie case”, as enunciated in several decisions cited and relied upon by them. Learned counsel cited and relied on the CASE Of AJIDAGBA VS INSPECTOR GENERAL OF POLICE (supra), where the Supreme Court of Nigeria quoted with approval the decision in SINGH v. JITENDDRANTHEN (supra) as follows:-
“What is meant by prima facie case? It only means that there is ground for proceeding’.but a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is guilty or not guilty’ and the evidence discloses a prima facie case when it is such if uncontradicted and if believed, it will he sufficient to prove the case against the accused person”.
The 1st Respondent cited the same authorities and relied on the portion of the judgment quoted above and in addition cited DURU VS NWOSU supra at page 43, where Nnamani JSC said:
“It seems to me the simplest definition is that which says that “there is ground for proceeding.” In other words, that something has been produced to make it worthwhile to continue with the proceeding. On the face of it “suggests that the evidence produced so far indicates that there is something worth looking at” From the decisions I have cited above, a prima facie case therefore is an inference or presumption of law affirmative or negative of a fact in the absence of proof, or until proof can be obtained or produced to overcome the inference. To this extent therefore, did the 1st Respondent produce sufficient evidence at the lower court to suggest that there is something worth looking at in the information which it filed? Clearly this is a question that can only be answered, by examination of the statements and depositions attached to the information as alluded to in the case of ABACHA VS THE STATE (2002) FWLR (pt.118) 224 at 1277 paragraphs C-D.
The genesis of this case is a petition titled “RE: MASSIVE FRAUD IN THE AWARD OF ELECTRIFICATION CONTRACTS BY FEDERAL MINISTRY OF POWER & RURAL ELECTRICFICATION AGENCY,” which was addressed to the Chairman EFCC ABUJA by one Amos Amoda Dirisu, dated the 19th December, 2008. This petition which is at page 1 of volume one of the record of appeal reads thus:-
“I hereby bring to the notice of the EFCC, for appropriate action unwholesome corrupt practices in the award of the contracts for rural electrification projects Nationwide.
The award of the contracts, together with the appropriation of the contract sums, were done hurriedly to beat the Presidential directives on retirement of unspent vote at the close of the year. The contracts were never advertised; neither were there any competitive tenders and biddings. The whole Process was pushed through clandestinely and secretly – in utter violation due process and transparency.
The contracts were awarded single handedly by the Permanent Secretary, Ministry of Energy (Power) in collaboration with the Managing Director, Rural Electrification Agency. Most of the projects were never surveyed nor costed, Amazingly, 100% down payment were made; contrary to PUBLIC PROCUREMENT ACT 2007 that stipulates a maximum 75% down Payment.
In order to get to the root of this fraud, the Commission may wish to compel the Federal Ministry of Power and Rural Electrification Agency to produce details of all contracts awarded between November and December 2008. During this period, a sum ranging from between N10 billion and 73 billion was hurriedly spent between the Ministry and the Rural Agency in order to beat the Government’s directives to return all unspent funds to the Treasury. I attach hereto; a letter of award of contract to a company without an address as a sample of the recklessness during the Period.
I hereby call upon the Commission to investigate this unbelievable atrocious conduct by public officials.
Yours faithfully,
Sign
Amos Amoda Dirisu.”
The allegation therefore is that part of the unspent budget that should have been returned to treasury in accordance with the presidential directives were shared out in the name of bogus contracts.
By Part II Section (6)(i) of the Financial Crimes Commission (Establishment, etc) Act 2004, the Commission is responsible for the determination of the extent of financial loss and such other losses by government, private individuals or organizations through investigations of all financial transactions by the persons involved. During its investigation in this matter, the EFCC took evidence from senior officials of the Rural Electrification Agency. Part of the statement made by Nanle Simon Kirdi, Director Management in the Agency, reads thus:-
“In addition to my earlier statement I wish to state that on the 10th December I was summoned for a Procurement Planning Committee Meeting in the Board Room of the Agency and the Chairman presented the appropriation bill for capital projects for the year 2008. These were constituency projects for National Assembly members. The project were stated state by state, The names of the contractors were not given to members.”
Mr. Samuel Ibi Gekpe, Managing Director/Chief Executive Officer of Rural Electrification Agency also made a statement on the 29/04/2009, part of that statement is hereunder reproduced as follows:-
“Further to my earlier statement on the Rural Electrification Projects awarded under the year 2008 amended budget in December 2008, the 45 solar Board Projects were constituency projects proposed for execution by some members of the National Assembly namely; the speaker of the House of Representative Rt, Honourable Dimeji Bankole, for some locations in Ogun State, Hon, Ndidi Elumelu- Chairman House Committee on power & Steel for locations in Delta State and Chairman Senate Ugbane for locations in Kogi State and Hon. Jibo Mohammed Deputy Chairman House Committee on Power and Steel for some locations in Niger state.”
In his statement, the Appellant admits knowledge of the various contracts which he said were awarded by the Agency in line with the supplementary budgets and some of the projects have since been completed. Now the EFCC is of the opinion that the huge sums of money that were appropriated through several contracts that were awarded within a short period was a monumental scam and those connected with such processes are to be prosecuted. The Appellant being a chairman responsible for overseeing the Agency in the senate and whose name has been mentioned by the Managing Director and chief Executive officer of the Agency, cannot claim that none of the proofs of evidence has connected him with the allegations contained in the charges against him, prima facie case has been defined and this I have highlighted elsewhere in this judgment. It is not the same as proof which comes later when the court has to find whether the accused is guilty or not guilty. The evidence against an accused discloses a prima facie case when it is such that is uncontradicted and if believed, will be sufficient to prove the case against the accused. Where there is a ground for proceeding with the case, it can safely be said that a prima facie case has been made. In other words, it may be concluded that something has been produced to make it worthwhile to continue with the proceeding, See DURU VS NWOSU (supra); OKORO v. STATE (1988) 5 NWLR (PT.94) 225.
In IKOMI VS THE STATE (supra) Coker JSC held:-
“It is the suspicion which leads to investigation and discovery of evidence against the suspect. Suspicion alone is not enough to justify proffering a charge against a person. There must be evidence linking the suspect with the offence. There ought to be sure evidence however remote which calls for some explanation from the suspect. At the stage of deciding whether to prefer charge. The prosecutor is not obliged to decide as a trial judge should, whether the evidence available is cogent enough to justify a conviction.”
At this stage I do not have to go into the ingredients of the offences of conspiracy and abetment. That will be the responsibility of the trial court to consider during the trial of this case. Section 19(2) (b) and (c) of the Economic and Financial Crimes Commission enjoins all Courts seized with matters under the Act to ensure speedy disposal of such matters. Interlocutory appeals in criminal matters are not desirable, as these interlocutory matters could be taken at the end of the trial along with appeal against a final decision, where a party feels aggrieved. In the present appeal, I find no reason to disturb the ruling of the lower court, where it is adjudged that a prima facie case is disclosed on the face of the proofs of evidence. I therefore resolve the first issue against the Appellant.
On the 2nd issue, Mr. S.I. Ameh, learned counsel for the Appellant submitted that the role played by the Appellant in the budget process is a legislative function, as such he is immuned from any liability, civil or criminal, by virtue of the provisions of Section 3 of the Legislative Houses/Power and Privileges Acts, Cap L12, Laws of the Federal Republic of Nigeria 2004, this Section provides as follows:-
“No civil or criminal proceedings may be instituted against any member of a legislative House –
a. In respect of words spoken before that house or a committee thereof; or
b. In respect of words written in a report to that House or to any committee thereof or in any petition, bill, resolution, motion or question brought or introduced by him therein.”
The law cited here is inapplicable to the charges against the Appellant at the lower court. The charges against the Appellant are for conspiracy and abetment with persons outside the legislative chambers. They are allegations of crime committed at the Rural Electrification Agency over the money that had been appropriated to that Agency. The charges are in no way connected with the words spoken or recorded in the house by the Appellant. I therefore agree with Obla of counsel for the Respondent that even if immunity will avail the Appellant and protect him from prosecution, it is certainly not at this stage. It could form his defence as he has to show that the charges are connected with the words spoken before the house or words written in a report to that
house’ This issue also fails and it is resolved against the Appellant also.
Having resolved the two issues against the Appellant, this appeal shall be and it is hereby dismissed, I make no order as to cost.
MOHAMMED LAWAL GARBA, J.C.A.: My learned brother GALINJE, JCA has proficiently considered the two (2) issues submitted for determination in this appeal in the draft of the lead judgment which I read before today.
I agree with the sound reasoning on which the conclusions on the issues were arrived at by his Lordship and only for emphasis, I would like to say a few words on the first issue
In plain language, evidence is said to disclose a prima facie case when it shows that there is the need or necessity for the person/s named therein to offer some explanations about the facts on which the evidence was based. When the evidence is such that without explanations in effective contradiction would be enough or sufficient if believed, to prove an offence against the person/s named therein. Once the evidence calls for some explanations exculpating the person/s named therein, a prima facie case is made out against such person/s to warrant a trial at which the explanations could be given by the person/s named in the evidence. See ABOGEDE v. STATE (1996) 5 NWLR (448) 270; ATANO v. A.G. BENDEL STATE (1988) 2 NWLR (75) 201; ABACHA v. STATE (cited in the Lead Judgment).
It must be stressed that at the stage of looking at the information filed in Court to find out if a prima facie case was disclosed, the Court is not called upon to look for proof of an alleged offence by assessing the evidence contained in the information. All that the Court is expected and supposed to do at that stage is to look for facts which clearly reveal an offence and also show that the person/s named are linked with it such that explanation s are necessary from them.
CHIANUGO v. STATE (2002) 2 NWLR (750) 225; AMINU v. STATE (2005) 2 NWLR (909) 180.
In YAV v. STATE (2005) 5 NWLR (917) 1 at 22, this Court in line with the definitions in the cases cited in the lead judgment, defined a prima facie case as follows:-
“Prima facie case in criminal trial in a sense only, means that there is ground for proceeding. At that stage, whether the evidence is sufficient to ground a conviction is not the issue. When a court stales that a prima facie case has been made out or that evidence discloses a prima facie case, it means that the evidence is such that if uncontradicted and if believed, is sufficient to prove the case against the accused.”
In the premises of all the authorities on the issue, the High Court was right not to have gone into the evidence and analyzing it before the finding whether or not a prima facie case was disclosed against the Appellant.
From the succinct statement of the information against the Appellant in the lead judgment, the evidence disclosed therein is such that it is very necessary for the Appellant to offer explanations in contradiction otherwise the evidence would be sufficient to prove the offence alleged against him.
The evidence certainly discloses good ground for proceeding and so a prima facie case was thereby disclosed.
In the result, I too find no merit in the appeal and join in dismissing it.
Parties to bear their respective costs of prosecuting the appeal
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my learned brother PAUL ADAMU GALINJE, JCA, just delivered and I agree with my Lord’s reasoning and conclusion.
I am also of the view that the appeal lacks merit and it is dismissed by me.
Appearances
Mr. S.I, Ameh (SAN), with A.S. Akpata Esq., P.O. Okolo
Esq., I.O. Peter Esq., A.O, Eze Esq., and R.O. Adakole Esq.For Appellant
AND
Mr. E.C. Okpe with Chris Agbiti
Mr. I.T. Agantem
Mr. C.I.N, Ikwueto SAN,For Respondent
