Caleb Ojo & Anor. V. Federal Republic Of Nigeria (2008)

LawGlobal-Hub Lead Judgment Report

OMOLEYE, J.C.A.

This is an appeal against the judgment of M. O. Oniyangi, J. of the High Court of the Federal Capital Territory holding at Gwagwalada delivered on 17/3/06.

The appellants as accused persons were arraigned before the trial court on a two count charge of conspiracy and official corruption under section 26(1)(c), punishable under section 9(1) of the Corrupt Practices and Other Related Offences Act, 2000 (hereinafter referred to as the Act). The charge reads thus:

“Count 1

That you Caleb Ojo (M) and Samuel Ojo (M) on or about the 9th day of July 2002, at Abuja in the Abuja Judiciary Division conspired with each other and corruptly gave the sum of N20,000 (twenty thousand naira only) to an official of the Independent Corrupt Practices and Other Related Offences Commission for the said official to issue in the course of his official duty a countermanding letter exonerating the 1st accused from allegations of corrupt practices levelled against him in his capacity as Chairman of Oriade Local Government of Osun State in a petition being investigated by the Commission and you thereby committed an offence contrary to section 26(1)(c) and punishable under section 9(1) of the Corrupt Practices and Other Related Offences Act, 2000.

Count 2

That you Caleb Ojo (M) and Samuel Ojo (M) on or about the 9th day of July 2002, at Rita Lori Hotel, Garki, Abuja in the Abuja Judicial Division did corruptly give as gratification the sum of N20,000 (twenty thousand naira) to an official of the Independent Corrupt Practices and Other Related Offences Commission to issue to 1st accused a letter exonerating him from allegations of corrupt practices levelled against him while serving as the Chairman of Oriade Local Government of Osun State, in a petition under investigation by the Commission and you thereby committed an offence contrary to and punishable under section 9(1) of the Corrupt Practices and Other Related Offences Commission Act, 2000.”

The brief background facts of this case are that the appellants allegedly gave the sum of N20,000.00 as gratification to Ibrahim Pam. (PW3) an Assistant Chief Legal Officer with the Independent Corrupt Practices and Other Related Offences Commission (hereinafter referred to as the Commission) in the course of his official duty for the specific purpose of inducing or influencing him to issue an official letter. The letter was meant to exonerate the 1st appellant from the allegation of corrupt practices against him whilst he served as the Chairman of Oriade Local Government Area in Osun State which allegation was then under investigation by the Commission.

The 1st appellant wanted a second term as Chairman. However, he needed clearance from his party, the Alliance for Democracy, Osun State Chapter, before he could contest. In pursuance of this, the Secretary of the said AD, Osun State Chapter on 14/6/02, wrote a letter, exhibit P7 to the Commission asking for the 1st appellant’s status in respect of the allegation of corrupt practices against him. The Commission’s reply to the letter in exhibit P8. The 1st appellant apparently not satisfied with the real intendment of exhibit P8 instructed his solicitors to contact the Commission and clear the air around his status. The 1st appellant’s solicitors wrote the letter exhibit P11 to the Commission in this regard. It was the letter exhibit P11 that the 1st appellant in company with his elder brother, the 20th appellant took to the Commission’s office in Abuja on 9/7/02.

After delivering the said letter and later that day the 1st and 20th appellants were arrested and subsequently charged with the offences of corrupt conspiracy and the giving of gratification to influence Ibrahim Pam in the matter of the investigation of the 1st appellant.

The appellants were arraigned for trial before the High Court of the Federal Capital Territory sitting at Gwagwalada.

To prove its case, the prosecution now the respondent called five (5) witnesses and tendered thirteen (13) exhibits. At the close of the case for the respondent, the appellants’ counsel made a no case submission. In a considered ruling delivered on 30/10/02, the no case submission was overruled by the learned trial Judge, The appellants appealed against the ruling to the Court of Appeal which upheld the ruling of the trial court. The appellants further appealed to the Supreme Court which equally dismissed the appeal.

Consequently, the appellants testified on their own behalf and called one additional witness in support of their defence. The appellants by an order of the trial court filed and adopted a written address; while the respondent addressed the trial court orally. In a considered judgment, the trial court found the appellants guilty as charged and sentenced them to one (1) year imprisonment on each of the two counts, the sentences were to run concurrently.

Aggrieved and dissatisfied with the said judgment of the trial court, the appellants filed this appeal to this court.

The appellants on 30/03/06 filed a notice of appeal containing eight (8) grounds of appeal. The grounds of appeal with their particulars are verbatim as follows:

“Ground 1

The lower court erred and denied the appellants of fair hearing when it failed to specifically consider and determine whether or not the evidence adduced by the prosecution had established the third of the three essential elements of the two offences that the appellants were charged with as identified in the appellants’ written final address.

Particulars of error

a. In their written final address, the appellants identified the three essential elements of the two count charge preferred against them.

b. Neither the prosecution nor the lower court disputed the three essential elements identified by the appellants.

c. The third essential element was the specific purpose for which the prosecution alleged that the appellants gave gratification of N20,000.00 to PW3.

d. The prosecution alleged that the appellants gave gratification of N20,000.00 to PW3 for the purpose of inducing him to write a letter that would exonerate the 1st appellant from the allegation of official corruption for which he was then being investigated by the ICPC.

e. The prosecution tendered exhibit P12 as the alleged letter of exoneration for which the appellants gave gratification to PW3.

f. The appellants submitted that exhibit P12 cannot serve as evidence of the specific purpose alleged in the charge sheet because it did not exonerate the 1st appellant as alleged by the prosecution.

g. The appellants further submitted that exhibit p12 is an unsigned official correspondence that is “worthless” and “void” in law, and the appellants supported both aforesaid submissions with several decisions of the appellate court that are binding on the court below.

h. The lower court did not consider, distinguish, accept, reject or in anyway pronounce upon the aforesaid submissions as well as the plethora of cases cited in support thereof by the appellants.

i. The lower court denied the appellants of fair hearing in respect of their contention that the evidence adduced by the prosecution failed to establish all the material ingredients of the offences charged.

GROUND 2

The lower court erred when it convicted the appellants as charged whereas the evidence adduced by the prosecution did not prove, beyond reasonable doubt, that the accused committed the two offences that they were charged with.

Particulars of Error

a. It is trite that the standard of proof required of the prosecution in a criminal case is “proof beyond reasonable doubt”.

b. In their written address, the appellant identified 26 pieces of evidence adduced by the appellants that were uncontroverted and unchallenged by the prosecution.

c. Out of the aforesaid uncontroverted evidence, the appellants identified four different reasonable doubts in the prosecution’s case and each was addressed in detail separately.

d. The lower court did not consider and determine whether or not any of the four reasonable doubts identified by the appellants, indeed disclosed a reasonable doubt despite the fact that only one version existed of each of all 26 pieces of uncontroverted facts relied upon by the appellants.

e. There were reasonable doubts in the case made out by the prosecution.

f. The lower court denied the appellants fair hearing in respect of the issue of whether the prosecution proved its case beyond reasonable doubt or not.

Ground 3

The lower court erred when it convicted the appellants as charged whereas the totality of evidence adduced by the prosecution did not establish all the essential elements of the offences charged.

Particulars of Error

a. The evidence adduced by the prosecution did not establish the three essential elements of the offences charged.

b. The appellants raised the absence of the essential elements as an issue but the lower could failed to consider and pronounce on that issue.

Ground 4

The lower court erred when it repeatedly relied upon the 2nd appellant’s denial of knowledge of PW4 as proof of the allegation that the appellants committed the two offences that they were charged with.

Particulars of Error

a. In his judgment, the trial Judge found that in the written statement of the 2nd appellant (i.e. exhibits P1 and P4) he had denied knowing PW4 whereas in his evidence-in-chief, 2nd appellant admitted the he had known PW4 for a very long time.

b. The lower court relied on a single inconsistency in the evidence of 2nd appellant as proof that both appellants are guilty of the offences charged.

c. The lower court ignored the fact the 2nd appellant had testified at the trial-within-trial that he had been coerced into writing his statement while under threats from Amadi Wali (PW1) and Umar Baba Audu (PW5) and that he was very tired and his thoughts were not collected at the time of writing the statement.

d. It is trite that the mere fact that an accused person is found to have exhibited some inconsistency in part of his written statement or oral testimony in court does not necessari make the accused guilty as charged.

e. The mere fact that the 2nd appellant was inconsistent in between his written statement and oral testimony regarding whether or not he knew PW4 does not prove beyond reasonable doubt, that the accused committed the offences they were charged with, particularly in the face of the several reasons for doubt that were identified by the accused but which the court below failed to consider.

Ground 5

The lower court erred when it held that the sequence of events from May, 2002 (when the 1st accused tried to see PW4 at the ICPC’s office) up till the second visit of the 2nd accused to see PW4 at ICPC office on 9th July, 2002 “is for no other purpose but to solicit for (sic) assistance to get a reply to exhibit P12”

Particulars of Error

a. The letter written by ICPC to the Alliance For Democracy which described the 1st accused as an “accused person” is dated 1st July, 2002 exhibit P8.

b. The 1st appellant’s solicitor’s protest letter to ICPC is dated 8th July, 2002 – exhibit P11.

c. Exhibit P12 is dated 9th July, 2002.

d. As at May 2002, when 1st accused attempted to see PW4, none of the three aforesaid letters – exhibits P8, P11 or P12 had been written.

e. Contrary to the finding of the court below, the 1st accused’s visit to ICPC in May, 2002 could not possibly have been to solicit assistance to get a reply to any of the aforesaid letters since none of the three letters had even been written as at the date of the May, 2002 visit.

f. The very basis of the lower court’s aforesaid finding is flawed and unsupported by evidence.

Ground 6

The lower court erred when it held that the presence of the accused at Rita Lori Hotel on 9 July, 2002 at the same time with PW3 and PW4 could only be explained to mean that the accused came there to meet PW3 in order to offer him gratification.

Particulars of Error

a. 2nd appellant uncontroverted and unchallenged evidence that when PW4 was seeing him (2nd appellant) off at the end of his second visit to ICPC on 9 July, 2002, PW4 asked him where he would be lodging on that day, and he (the 2nd accused) informed PW4 that he would lodge at Rita Lori Hotel for the night.

b. 2nd accused also testified that PW4 told him that he (PW4) would visit the 2nd accused at Rita Lori if he (PW4) was able to close from work early enough and that, that was how PW4 knew where the accused would be.

c. The aforesaid evidence of 2nd accused was not controverted or challenged under cross-examination.

d. In his testimony DW1 corroborated the aforesaid evidence of 2nd accused by testifying that he accompanied 2nd accused during the second visit and that he witnessed all that transpired when PW4 inquired and the 2nd appellant told PW4 that the appellants would lodge at Rita Lori Hotel.

e. The evidence of DW1 too remained uncontroverted and unchallenged by cross-examination.

f. The lower court did not consider the 2nd appellant and DW1’s explanation of how the PW4 knew the appellants would be at Rita Lori Hotel before proceeding to conclude that their presence there is evidence of the appellants’ guilty.

Ground 7

The lower court erred when he relied upon the admission of 2nd appellant in his written statement that he was drinking at Rita Lori Hotel with PW3 and PW4 when they were all arrested on 9 July, 2002 as proof of the appellants’ guilt.

Particulars of Error

a. The appellant did not ever deny being with PW3 and PW4 at Rita Lori Hotel on 9 July 2002.

b. The difference between the appellants’ story and that of PW4 is that the appellants alleged that it was PW4 who brought PW3 to meet them at Rita Lori Hotel since 2nd appellant had already told PW4 that the appellants would pass the night at the said hotel.

c. The appellants denied arriving at the Hotel with PW3 and PW4.

d. The appellants had good cause to be present at the hotel because they had testified that they would spend the night there since the person that they planned to stay with for the night had traveled out of Abuja.

Ground 8

The lower court erred when it held that the fact that the 2nd appellant brought out an envelope containing N20,000. 00 at Rita Lori Hotel was proof of their intention to give gratification to PW3.

Particulars of Error

a. The appellants testified that the only money that they had on them was N20,000.00 that was in a bundle in an envelope in the 2nd appellant’s pocket.

b. The money was in a wrapped bundle and in order to use part of the money to settle the hotel bill for the drinks consumed, the 2nd appellant had no other way but to bring the envelope out of his pocket before he could extract whatever amount that was required to settle the bill for the drinks they had bought at the hotel.

c. At the point of arrest, PW1, PW2 and PW5 recovered the envelope intact on the table and 2nd appellant admitted ownership of the money.

d. It was not unreasonable for the 2nd appellant to have brought out the envelope that contained the N20,000.00 because there was no way that the 2nd appellant could extract or separate any portion of that money without first bringing out the envelope that was eventually recovered on the table.”

The appellants’ joint brief of argument was prepared by Mr. Ayo Ajayi of F. O. Fagbohungbe & Co. It was filed on 5/7/06 and deemed properly filed and served on 18/09/06. Three(3) issues were formulated therein for the determination of the appeal. They are:

“1. Did the prosecution establish All the elements of the offences of conspiracy and official corruption that the appellants were charged with and convicted of?

2. Did the prosecution prove, beyond reasonable doubt that the appellants committed the offences of conspiracy and official corruption that they were charged with, and convicted of?
3. Was the decision of the lower court to convict the appellants perverse?”

The respondent’s brief of argument was deemed filed on 5/3/07. In it, the respondent also formulated three (3) issues for the determination of the appeal. These are:

“1. Whether having regard to the circumstances of this case and the totality of the evidence adduced by the prosecution at the trial, the prosecution did not establish the essential elements of the two offences of criminal conspiracy and official corruption against the appellants?

2. Whether the respondent did not prove the offences of criminal conspiracy and corruption against the appellants beyond reasonable doubt as stipulated by law?
3. Whether the decision of the lower court convicting the appellants was perverse to the extent of disturbing the judgment of the lower court?”

On 1/11107 when the appeal was heard by this court, the learned senior counsel for the appellants, Chief F. O. Fagbohungbe, SAN adopted and relied on the appellants’ brief. He urged the court to allow the appeal, set aside the judgment of the trial court, quash the conviction of, discharge and acquit the appellants.

Replying, learned counsel for the respondent, Mr. Paul A. Bassi adopted the respondent’s brief of argument. He urged the court to resolve all the three (3) issues in favour of the respondent and dismiss the appeal accordingly.

The issues formulated for the determination of this appeal by both the appellants’ and the respondent’s counsel are in substance virtually the same though couched differently. I will therefore adopt those of the appellants. I will however take issues one and two together because they are intertwined.

Issues One and Two

“Did the prosecution establish ALL the essential elements of the offences of conspiracy and official corruption that the appellants were charged with, and convicted of?”

“Did the prosecution prove, beyond reasonable doubt that the appellants committed the offences of conspiracy and official corruption that they were charged with, and convicted of?”

Learned senior counsel for the appellants submitted that the law is that in a criminal charge, all and not just some of the essential elements of an offence charged must be established by the evidence adduced by the prosecution. Otherwise, an accused person will be discharged and acquitted by the court, even if it is only one element of the offence charged that is not established. He relied on the cases

(1) Nwosu v. Board of Customs & Exercise (1988) 5 NWLR (Pt.93) p.225;

(2) Alabi v. State (1993) 7 NWLR (Pt. 307) p.511 and

(3) Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) p. 367 at pgs. 407- 408, paras. H – A.

According to the learned senior counsel for the appellants, regarding count two of the charge against the Appellants, there are three essential elements of the offence of official corruption under the count as can be gleaned from the provisions of section 9(1) of the Act. These are:

(i) An accused person must be shown to have corruptly given, conferred or procured any property or benefit of any kind on or for a public officer, or for any other person;

(ii) An accused person must be shown to have corruptly promised or offered to give, confer, procure or attempt to procure any property or benefit of any kind to, on or for a public officer, or for any other person and

(iii) An accused person must be shown to have actually given or conferred or procured or promised to give, confer or procure any property or benefit to, on or for a public officer in return for an act, omission, favour or disfavour which is to be done or shown by the public officer at the instance or request of the accused person.

Furthermore, it was contended in favour of the appellants that the prosecution must establish that:

(i) the appellants actually gave to or conferred or promised to give or confer the benefit of N20,000= on PW3, the public officer and the purpose for which the appellants gave to or conferred the benefit of N20,000= on PW3, a public officer is indeed a corrupt one.

It is therefore only when a benefit is given to or conferred on a public officer by a person for the purpose of inducing or procuring the public officer in his official capacity to perform an act, or show an undeserved favour to that person that the act of giving or conferring the benefit becomes a corrupt and criminal act. The prosecution must necessarily adduce evidence to establish or prove the specific alleged purpose for which the benefit was given or conferred on the public officer.

It was canvassed by the learned senior counsel for the appellants that since the specific purpose for which the appellants were alleged to have bribed PW3 was to induce PW3 to write a letter of exoneration, it became necessary for the respondent to adduce evidence of that specific allegation. PW3 testified that he did in fact write the letter of exoneration. Exhibit P12 as requested by the appellants. The meaning of the word “exoneration” is to free or declare one free from formal charge or blame according to the combined definitions of the word in Black’s Law Dictionary, 7th Edition, page 597, Oxford Dictionary of Current English and the New Webster’s Dictionary of the English Language (International Edition).

The appellants’ learned senior counsel submitted that the content of exhibit P12 does not show that it is a letter of exoneration as alleged in Count two of the charge against the appellants. Exhibit P12 does not state that the 1st appellant had been freed or declared free from blame or charge in respect of the allegation of corrupt practices levelled against him. On the contrary, the actual content of the letter is that although the 1st appellant had not been found guilty of any offence, he was still under investigation as stated in Exhibit P8 the earlier letter from the commission in respect of the investigation of the 1st appellant. In essence, exhibit P12 was allegedly written to clarify the wrong impression created by the said earlier letter exhibit P8. It was submitted for the appellants that exhibit P12 is a letter of clalification and not of exoneration. The prosecution had failed to adduce any evidence of the specific purpose alleged in count two, that is, to induce a public officer to issue a letter of exoneration. This is the second major essential element of the offence of official corruption.

It was contended for the appellants that the prosecution failed to adduce any evidence of the specific unlawful or criminal purpose alleged in count two which is an essential element of the charge preferred against the appellants. There is obviously the absence from the letter exhibit P12 of the specific purpose for which the appellants were alleged to have given gratification of N20,000= to PW3, a public officer. The prosecution woefully failed to adduce evidence in prove of that material specific or particular purpose of inducing PW3; that is, to have the 1st appellant exonerated by the commission from allegations of corruption levelled against him.

What is more, exhibit P12 is not only a letter of exoneration, it is a worthless paper not having been dully signed. The document is inadmissible in evidence and the trial court ought to have expunged it from its record. It is not capable of exonerating 1st appellant. Learned senior counsel for the appellants on the foregoing legal principle and deductions relied on the cases of:

(1) Ubanatu v. C.O.P (2000) 2 NWLR (Pt.643) p. 115;

(2) Adeosun v. State (1975) N.S.C.C. (Vol. 9) p. 165;

(3) Dikko v. State (1980) NCR 31

(4) Nwokedi & Anor v. C.O.P (1977) NSCC (V611) p. 127; (1997) 3 SC 35

(5) Attorney-Gen., Abia State v. Agharanya (1999) 6 NWLR (pt.607) P. 362 at p. 371 para. E; and

(6) Omega Bank Plc v. Q.B.C. Ltd. (2005) 8 NWLR (Pt.928) p.547 at p. 581

Proceeding further, learned senior counsel for the appellants contended that the only conclusion to be drawn from the foregoing deductions is that the evidence adduced by the prosecution before the trial court in this case was clearly at variance with the offence with which the appellants were charged; thereby rendering the case of the prosecution against them unsustainable, null and void. Reference was made to the case of:- Oladejo v. State (1994) 6 NWLR (Pt.348) p. 101 at p. 126 para. 6. This is because the prosecution failed to establish the specific purpose for which the appellants allegedly gave the sum of N20,000 gratification to a public officer as charged, and by necessary extension, the prosecution had failed to establish an essential element of the offence of official corruption.

Consequently, the appellants are entitled to a discharge and an acquittal by this court.

On count one, the charge of conspiracy to commit the offence of official corruption, learned senior counsel for the appellants relied on and adopted his submissions above in respect of count two. Furthermore, he submitted that the law is settled that generally, where an accused person has been discharged and acquitted of the substantive offence charged, a charge of conspiracy to commit the substantive offence charged must also be dismissed and the accused discharged and acquitted of the offence of conspiracy charged. This is because the essential elements of a charge of conspiracy and the principal or substantive offence are essentially the same. The exceptions to this general principle of law are, where a co-accused admits the conspiracy and or there are other evidence to sustain the conspiracy charged. On this trite principle of law, reliance was placed on the cases of:

(1) Amadi v. State (1993) 8 NWLR (Pt. 314) p, 644 at p.677 paras. B-C; and

(2) Abioye v. The State (1987) 2 NWLR (Pt.58) p.645.

However, none of the two exceptions are applicable to the present case because none of the two appellants admitted the alleged conspiracy and there is no other adduced evidence in support of the alleged conspiracy. The appellants perforce are equally entitled to a discharge and an acquittal of the offence of conspiracy as charged under count one.

In support of his contention, learned senior counsel for the appellants referred to the provisions of section 26(1) of the Act on the offence of conspiracy. He submitted that the essential elements of the offence of conspiracy are that:

(a) The accused must be proved to have abetted or engaged in a criminal conspiracy to commit an offence under the ICPC Act.

(b) The specific purpose of conspiracy as alleged in the charge must be proved.

Therefore the second essential element of the offence of conspiracy is evidence of the letter of exoneration which was the specific purpose for which the appellants allegedly conspired to offer gratification to a public officer. The prosecution having failed to establish this evidence are equally deemed to have failed in proving an essential element of the offence of conspiracy under the Act. He relied on the cases of:

(1) Nwosu v. Board of Custom (supra); and

(2) Oladejo v. State (supra) at p. 127 paras. D – E

Learned senior counsel for the appellants referring to paragraphs 5.01-6.17 at pages 438-458 of the record of proceedings, contended that all the points under this issue were also raised in his written address during the trial before the lower court. However, the learned trial Judge according to him failed in his duty to consider and pronounce on them. This to him amounted to a denial of fair hearing to the appellants. Learned senior counsel submitted that it is trite law that when a party submits an issue to the court for determination, the court must consider and pronounce upon that issue one way or another. On this principle of law, he referred to the case of: Likita v. C.O.P. (2002) 11 NWLR (Pt. 777) p. 145 at p. 157, paras. A-D.

The appellants’ learned senior counsel pointed out that there is a difference between uncontroverted evidence and unchallenged evidence. In this regard he relied on the case of: Oforlete v. State (2000) 12 NWLR (Pt. 681) p. 415 at p. 440 paras. C-D. It was held in the case that, challenged evidence has to do with rendering doubtful or without weight a witness by means of cross-examination; while controverted evidence has to do with leading contrary evidence by the party who is the adversary. He identified twenty six (26) material pieces of evidence adduced by the appellants at trial which according to him were not successfully challenged or controverted by the prosecution. These are catalogued at pages 27 to 31 of the appellants’ brief of argument. This court was urged to accept those identified sets of facts because the prosecution did not present any contrary versions of those facts. He relied on this position on the case of:

Modupe v. State (1988) 4 NWLR (Pt. 87) p.130 at p. 137 paras. D-H and p.142 para.

Reference was made to one major evidence, which was the assertion of the appellants that on the day they were alleged to have bribed PW3, they did not have any other money apart from the N20,000 with which they could sustain themselves in Abuja. They did not have an alternative accommodation and extra money to purchase fuel for their return trip to Osun State. The prosecution did not adduce contrary evidence to debunk the story of the appellants to show that it was still probable for the appellants to meet all those unavoidable needs. This ought to have created some doubts in the mind of the learned trial Judge.

The first of such doubts is that the evidence of the appellants was capable of two interpretations. The number one of which is that the appellants needed the N20,000 for some necessary and unavoidable expenses like accommodation, feeding, purchasing fuel and other contingencies. Therefore, it was not probable and reasonable for them to have given all of that money to PW3. The number two interpretation is the allegation of the prosecution that, the N20,000 was given to PW3 as a bribe. These two interpretations were both probable and actually created a reasonable doubt. The doubt therefore ought to have been mandatorily resolved in favour of the Appellants by the learned trial Judge. He relied on the cases of:

(1) Okeke v. State (1995) 4 NWLR (Pt. 392) p. 676 at p.712 para. B; and

(2) Onafowokan v. Stale (1987) 3 NWLR (Pt. 61) p. 538.

Consequently, it was not safe to have accepted the testimonies of PW1, PW2, PW3, PW4 and PW5 that the appellants gave the sum of N20,000 to PW3 as bribe because if they did, they would have been left penniless and stranded in Abuja. What is more, PW1, PW3, PW4 and PW5 are not independent witnesses but they are all officers of the Commission whose evidence had created a doubt. Their evidence cannot be treated as safe enough to convict the appellants upon. The benefit of this highly reasonable doubt created by the prosecution in respect of the allegation of bribery must be given to the appellants.

Secondly is the matter and status of exhibit P12. PW3 gave evidence that the alleged bribe was given to him to induce him to write exhibit P12 meant to exonerate the 1st appellant. Both PW3 and 1st appellant agreed that exhibit P12 was not duly signed. PW3 specifically rubbished exhibit P12 when he admitted that as a public officer, if an unsigned official correspondence such as exhibit P12 was sent to him, he would refuse to act on it. 1st Appellant a university graduate of 1983 and a former public office holder gave evidence that he knew that an unsigned official correspondence such as exhibit P12 is of no effect, purpose and consequently useless to him. These have created a reasonable doubt that the appellants would give the sum of N20,000 to PW3 as bribe for an unsigned and ineffective document. The benefit of that doubt ought to have been given to the appellants.

Thirdly, the 1st appellant’s solicitors had written a harshly worded letter that is, exhibit P11 to the Chairman of the Commission demanding a retraction of exhibit P8. Coupled with this, the solicitors’ letter had just been submitted earlier on 9/7/02 and was yet to be attended to. All these belied the prosecution’s allegation that the appellants could bribe PW3 that same day for the purpose of achieving the same result that the solicitors’ letter was expected to achieve. Relying on a similar set of facts in the case of: Adeosun v. State (supra), this court was urged to hold that there is a reasonable doubt that the appellants would offer a bribe in the above stated circumstance and that the benefit of that doubt must be given to the appellants.

Fourthly, it was contended in favour of the Appellants that the prosecution failed to adduce credible evidence to establish one major element of the offences with which the Appellants were charged. This is, the specific purpose for which the appellants were alleged to have given the gratification of N20,000 to PW3. This element is a common denominator of the two counts of conspiracy to commit and the commission of the offence of official corruption. Failure to establish this common essential ingredient of the offences created a reasonable doubt as to the culpability of the appellants; which is also tantamount to failure to prove the offences beyond reasonable doubt. This is a chink in the prosecution’s armour and the benefit of the doubt so created should be given to the appellants. The appellants’ learned senior counsel on this legal proposition relied on the cases of:

(1) Alabi v. State (supra) at p. 52.3 para. F;

(2) Aiguoreghian v. State (supra); and

(3) Onafowokan v. State (supra)

He was of the opinion that the prosecution’s case having been riddled with too many causes for reasonable doubt, the case built by the prosecution is akin to, a sieve which cannot hold water at all. The totality of the evidence adduced by the prosecution is therefore very unsafe to convict the appellants upon.

The absence of totally independent witnesses for the prosecution is rather suspicious and skeptical. The suspicion is borne out of how the five prosecution witnesses who are all officers of the Commission hatched out a plan to arrest the appellants as could be seen from the testimonies of PW1 at pages 199 and 246 and PW3 at page 258 of the record of proceedings. According to the learned senior counsel for the appellants, a further proof that the allegation of bribery was fabricated against the appellants could be seen in the evidence of PW4 which showed that it was after the 2nd appellant had left PW4’s office on the day in question that PW4 went to discuss the request of the sum of N10,000= (and not even N20,000=) with PW3. The evidence showed that throughout the 2nd appellant’s visit to PW4, the issue of gratification was not raised or mentioned. Learned senior counsel referred to the case of: Onafowokan v. State (supra) where the court propounded that in any civilised society, ten guilty persons would rather be allowed to go scot-free than that one innocent person to be found guilty. It was therefore urged upon this court to resolve all the foregoing identified doubts in favour of the appellants.

In response, learned counsel for the respondent submitted that in determining whether or not an offence has been proved, the court must consider the charge and the totality of the evidence adduced at the trial. The particulars of the charge are taken not in isolation but together with the evidence proffered along the circumstances of each case. Reference on this proposition was made to the cases of:

(1) Ogbodu v. State (1987) 3 SC p. 497; (1987) 2 NWLR (Pt.54) 20 and

(2) Enahoro v. Queen (1965) NMLR p.265; (1965) SCNLR 39

Therefore, it was the view of the learned counsel for the respondent that the prosecution at the trial of the instant case through sufficient evidence proved that exhibit P12 was written to countermand exhibit P8 which had already indicted the 1st appellant of allegations of corruption being investigated by the ICPC. Put differently, exhibit P12 without doubt exonerated the 1st appellant from the great indictment expressed in exhibit P8 for the purpose of allowing the 1st appellant to get the nomination of his party to recontest election in his Local Government. However, this court was urged not to consider the legality or constitutionality of exhibit P8 because it is not the issue in this appeal. Learned counsel for the respondent canvassed that to properly and correctly describe a document, it is the content that is usually taken into consideration. He relied on this proposition on the case of:

Akinbisade v. State (2006) 27 NSCQR p. 743 at pgs. 758 – 759; (2006) 17 NWLR (Pt.1007) 184.

Therefore, the word “clarification” in exhibit P12 cannot give a full meaning and good effect of the whole content of the document.

It was further submitted for the Respondent that the prosecution did establish the purpose, that is, the essentials of the offences with which the appellants were charged. He referred to the evidence of PW4 at page 271 of the record of proceedings that the 2nd appellant requested him for a letter which would state that the allegation against the 1st appellant is not serious and not proven in view of the existing Exhibit P8 which had a negative effect on the candidature of the 1st appellant as the Chairman of Oriade Local Government in Osun State. The appellants did not want the allegation to be seen as an indictment or confirmmation of the guilt of the 1st appellant. In which case exhibit P8 was a stumbling block in the way of the 1st appellant. The request for exhibit P12 was to clear the 1st appellant for nomination as Chairman of Oriade LG.C. The letter exhibit P12 was written by PW3. The evidence of PW3 and PW4 at pages 260 to 272 of the record of proceedings showed that when exhibit P12 was handed over to the 1st appellant, he indicated that it satisfied their purpose and thereafter the 2nd appellant handed over the sum of N20,000 to PW3 as gratification in respect thereof There is no doubt that exhibit P12 was meant to cancel the effect and revoke exhibit P8 to enable the 1st appellant to be considered and cleared for his re-election as chairman of his local government. It could then be reasonably said that exhibit P8 showed that the 1st, appellant had a case to answer and was blameworthy in conclusive terms; while exhibit P12 debunked the blameworthiness and indictment of the 1st appellant; and that he had no case to answer. In essence, exhibit P12 cancelled the effect of exhibit P8.

Furthermore, learned counsel for the Respondent contended that exhibit P8 being a reply to exhibit P7, exhibit P12 was a letter of further clarification which was meant to countermand that is, void and revoke the effect of exhibit P8 to a greater extent. It can therefore be clearly said that exhibit P12 exonerated the 1st appellant from the findings and indictment contained in exhibit P8 in respect of the allegations of corrupt practices being investigated by the Commission.

It was submitted in the favour of the respondent that although exhibit P12 was not signed, if it was eventually signed and stamped as contemplated by the parties, it will serve as a letter of clearance and exoneration for the 1st appellant to enable him contest in the anticipated local government election. It will then technically mean that there was an agreement with the appellants that exhibit P12 was a letter of clarification and not a letter of exoneration. Respondent’s learned counsel canvassed that the attitude of courts these days is to do substantial justice without adherence to undue technicalities. For reliance on technicalities leads to injustice. On this position, reference was made to the case of: Dosumu v. Dada 2 NSCQR p. 485 at p. 536; (2006) 18 NWLR (Pt.1010) 134.

The learned counsel for the respondent referred to section 53 of the Act which provides that any proven gratification given in furtherance of the commission of any offence under the Act is presumed to have been given corruptly until the contrary is proved. Hence, the prosecution having proved that exhibit P12 exonerated the 1st appellant from the blame, condemnation and indictment conveyed by exhibit P8, the burden shifts, and the appellants now have the burden to prove that the money they gave to PW3 was given for a lawful or innocent purpose and not given corruptly. What is more, it is clear from the provisions of section 9(1) (b) of the Act that the gratification given could be for a favour sought to be done at a later date. In other words, exhibit P12 was not a complete document and did not have the required effect at the material time.

The favour with the consent of the appellants was to be done later by signing, stamping and forwarding exhibit P12 to the Secretary, Alliance for Democracy, Osun State. In the opinion of learned counsel for the respondent, there was an understanding that the document will be signed after the appellants must have given the gratification to PW3. Put differently, the offence was indeed committed when the 2nd appellant gave the gratification to PW3 on the instruction of the 1st appellant.

It was further contended in favour of the respondent that by virtue of the provisions of section 11 of the Act, it shall not be necessary to prove that an accused believed that the public officer would do the favour in question. Where a public officer does not actually do the favour or cannot even do it, the offence would still have been committed. In other words, even if exhibit P12 was not in existence, the offence would still have been proved and the appellants culpable.

Learned counsel for the respondent canvassed that the prosecution is expected to prove the commission of an offence beyond reasonable doubt and not beyond any shadow of doubt. Reliance on this position of the law was placed on the cases of:

(1) Okoroji v. State (2002) 5 NWLR (Pt. 759) p. 21; and

(2) Akinyemi v. State (1999) 6 NWLR (Pt. 607) p. 449.

In the instant case, with the overwhelming evidence on record, the prosecution was able to prove the case against the appellants beyond reasonable doubt.

In respect of count one, learned counsel for the respondent submitted that the offence of conspiracy is complete when two or more people agree to commit an unlawful act which of course may be proved by inference and not necessarily by overt act. The essential elements of conspiracy are different from those of the substantive offence. It is quite possible to prove the offence of conspiracy but fail to prove the substantive offence and vice-versa. On this position, reliance was placed on the cases of:

(1) Obiakor v. State (2002) 10NWLR (Pt. 776) p. 612; and

(2) S. Oduneye v. State (2001) 5 NSCQR p. 1; (2001) 2 NWLR (Pt.697) 311.

Conspiracy to commit an offence is a separate and distinct offence which is independent of the actual commission of the offence to which the conspiracy is related. Consequently, the offence of conspiracy may be fully committed even though the substantive offence may be abandoned or may have become impossible to commit. It does not necessarily follow that where an accused is discharged and acquitted of the substantive offence, he must necessarily be discharged and acquitted of the offence of conspiracy.

On this premise, reference was made to the cases of:

(1) Balogun v. A.-G .. Ogun Stale (2002) 6 NWLR (Pt.763) p.512;

(2) Erim v. State (1994) 5 NWLR (Pt.346) p.522;

(3) Atano v. A.-G., Bendel State (1988) 2 NWLR (Pt. 7S) p.55: and

(4) Adebayo v. State (1987) 2 NWLR (Pt. S7) p.468.

It was the opinion of the learned counsel for the respondent that in the instant case, the specific purpose for which gratification was given is not one of the essential elements of the offence of conspiracy because the offence of conspiracy is proved when there is an agreement to commit an unlawful act. An accused may not even go ahead to commit any substantive offence yet run foul of the law and be culpable for the offence of conspiracy. Furthermore, the learned counsel for the respondent adopted and relied on his argument on count two above.

The learned counsel for the respondent in his further reply, submitted that at trial, the prosecution witnesses gave cogent, truthful, reliable and direct evidence. None of them was shaken during cross-examination. In this regard, the evidence of PW3 and PW4 established that the appellants requested for exhibit P12 to revoke exhibit P8 so that the 1st appellant could be cleared to contest in the local government section. The sum of N20,000 was therefore given to PW3 as gratification for that purpose. This evidence was corroborated by the evidence of PW1 and PW5 who watched the scenario from a hide out. There is no reasonable doubt in the said evidence capable of impeaching the findings and judgment of the lower court.

Reference was made by the learned counsel for the respondent to exhibit P1, the confession of the 2nd appellant. When exhibit P1 was to be tendered in evidence, the appellants’ counsel objected. There followed a trial within – trial and the ruling of the trial court upholding the voluntariness of exhibit P1.Therefore, exhibit P1 was properly admitted in evidence by the trial court and treated as a confessional statement. The ruling was not appealed against, hence it stands. What is more, the appellants’ learned senior counsel did not urge upon this court to set the ruling aside. Reliance on this position was placed on the case of: Ajibona v. Kolawole (1996) 10 NWLR (Pt. 476) p. 22.

It was canvassed in favour of the respondent that it is settled law that a court could convict an accused person upon his own confessional statement if there is something outside the statement to prove the truth of the confession. Reference on this legal position was made to the cases of:

(1) Aremu v. State (1991) 7 NWLR (Pt. 201) p. 1 and

(2) Paul Onochie & Ors v. The Republic (1966) SCNLR 204.

The unassailable principle of inconsistency rule is that where a confessional statement of an accused has been admitted in evidence, the accused cannot be allowed to resile from it or give facts different from those contained in his confessional statement. Where such facts are given, they are liable to be jettisoned and discarded. Therefore, the so-called unchallenged evidence adduced by the appellants are contrived and speculative. The material fact that the prosecution needed to prove, which it did prove is that the appellants gave N20,000= to PW3 as gratification for the purpose of getting exhibit P12. It was obvious that the appellants had DW3 to take care of them. Also in this age of modem banking, they could access their bank accounts from anywhere in Nigeria including Abuja. It was not the business of the trial court to enquire into how the appellants would take care of themselves thereafter. To do this would amount to a speculation on the part of the trial court. It is trite that courts of Law are not allowed to speculate but can only act on evidence presented before them. On this position of the law, reference was made to the cases of:

(1) Okoko v. State (1964) 1 All NLR p. 423 at p. 428 and

(2) Seismographic (Nig.) Ltd. v. Ogbeni (1976) 4 SC p. 85.

Furthermore on this point, the appellants’ main agenda for undertaking to deliver their solicitors’ letter exhibit P11 to the Commission’s headquarter office in Abuja was to meet with PW4 to seek assistance on how to wriggle out of the problem created by exhibit P8.

The learned counsel for the respondent further contended that the fact that all the prosecution witnesses are members of staff of the Commission is immaterial and could not affect the quality of their evidence. The case of: Ben v. State (2006) 27 NSCQLR p. 233 at 2; (2006) 16 NWLR (Pt.1006) 582, was relied upon on this position. In any event, there was no way the prosecution could get independent witnesses in the circumstances of the instant case. On the whole, the evidence adduced by the prosecution against the appellants were overwhelming, strong, admissible, and justified the conviction and sentencing of the appellants.

It was argued for the respondent that it was not correct to say that the learned trial Judge failed to pronounce on the propositions that the appellants’ counsel submitted at trial and now in this appeal. The reason being that it became unnecessary for the learned trial Judge to consider the substantive offence whilst treating the offence of conspiracy having already found that the substantive offence had been proved. What is more, the ingredients of the two offences differ. In any event, failure to pronounce on some issues in a proceeding would only amount to a denial of fair hearing if such failure has led to either a miscarriage of justice or if a different decision would have been arrived at. On this position of the law, reference was made to the cases of:

(1) Amayo v. Erinmwingbovo (2006) All FWLR (Pt.318) p. 628; (2006) 11 NWLR (Pt.992) 699

(2) Bankole v. Felu (1991) 8 NWLR (Pt. 211) p. 523;

(3) Mora v. Nwalusi (1962) 2 SCNLR p. 73; and

(4) Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) p. 177.

Learned counsel for the respondent distinguished the cases of: (1) Ubanatu v. C.O.P. (2) Adeosun v. State and (3) Dikko v. State and 2 Nwokedi & Anor. v. COP. (all supra) relied upon by the appellants’ learned senior counsel from and opined that those cases are irrelevant and inapplicable to the instant case. He referred to the case of: A.-G, Ondo State v. A.- G., Federation (2002) 9 NWLR (Pt. 772) p. 222 and submitted that the act under which the appellants were charged is quite novel. The intention of the Act is to combat corruption that has become an evil affecting Nigeria in all its ramifications thereby battering the image of the country.

The major contention of the learned senior counsel for the appellant under issues one and two is that it is the duty of the prosecution to prove all the essential elements of the offences with which the appellants were charged viz: Conspiracy and Official Corruption. For the purposes of grounding the conviction of the appellants, it will not suffice for some of the elements to be proved, while some are left out.

In criminal proceedings, the prosecution always has the duty to prove the guilt of an accused person which it accuses of a crime. It is a time-honoured legal principle that the standard of proof the prosecution is required to discharge has been fixed as “proof beyond reasonable doubt”. The two-pronged grouse under issues one and two is whether the prosecution proved the offences of criminal conspiracy and official corruption against the appellants beyond reasonable doubt. It is trite that in criminal trials, the prosecution has the duty which is an unshifting burden, to prove all and not merely some of the ingredients of the offence charged beyond reasonable doubt. This is a prerequisite precedent to establishing the guilt and conviction of an accused person. That is, the standard of proof is such that if there is any element of doubt in relation to any of the ingredients, the doubt is to be resolved in favour of the accused person. See:

(1) Owe v. The Queen (1961) 2 SCNLR p.354;

(2) Omogodo v. The State (1981) 5 SC p. 5.

(3) Hassan v. The State (2001) 6 NWLR (Pt.709) p. 286; and

(4) Nweke v. The State (2001) 4 NWLR (Pt.704) p. 588.

Proof beyond reasonable doubt actually has its origin in the Common Law and it is enacted in Section 138 (1) of the Evidence Act which provides that whenever the commission of a crime by a person is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.

Over the years, and our law reports are replete with a host of authorities, the superior courts have interpreted the real purport of this provision. It is now settled law that the expression “proof beyond reasonable doubt” does not mean “proof beyond all shadows of doubt” The evidence of the prosecution against an accused must therefore be strong albeit, a remote possibility which can easily be dispensed with may however be left in favour of the accused. In discharging the burden of proof clothed with it under this legal principle, the prosecution is required to produce a possible and credible evidence which may be direct; or if circumstantial, it must be of such quality or cogency that a court could safely rely on it in coming to its decision in the case. See:

(1) Egbe v. King (1950) 13 WACA p. 105;

(2) Mbenu v. The State (1988) 3 NWLR (Pt. 84) p. 615;

(3) Alonge v. I.G.P (1959) SCNLR p. 516 and

(4) Adetola v. The State (1992) 4 NWLR (Pt. 235) p. 267.

The Supreme Court per Onu J.S.C. in the case of Nweke v. The State (supra) at pages 602 – 603. referred with approval to the decisions in the cases of (i) Benson Ikoku v. Enoch Oil (1962) 1 All NLR p. 194 and (ii) Nwankgwere v.Adewunmi (1966) 1 All NLR p.129 and held as follows:

“…Section 137(1) of the Evidence Act. This section was interpreted … Proof therefore must be consistent with:

(1) active participation in the commission of the crime. Be it noted that if only culpatory evidence of participation in a crime is given and which is equally open to an interpretation consistent with innocence, it must be construed in appellant’s favour. In a criminal trial the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt…”

In a criminal case, if the evidence adduced by the prosecution is adequate in implicating an accused person, the prosecution would then have succeeded in proving the case beyond reasonable doubt. See the cases of:

(1) Bakare v. The State (1987) 1 NWLR (Pt. 52) p. 579;

(2) Onafowokan v. State (1987) 3 NWLR (Pt. 61) p. 538; and

(3) Ubani v. The State (2003) 18 NWLR (Pt. 851) p. 224.

The characters of the evidence required to be adduced in criminal trials are those of credibility and cogency, making it safe for the court to rely or in coming to a just decision. See the cases of:

(1) Alonge v. The State (1975) 9 – 11 SC p. 17; (1959) SCNLR 516 and

(2) Adetola v. The State (supra); and

(3) Hassan v. State (supra).

The guilt of an accused person may be proved by:

(a) confessional statement;

(b) circumstantial evidence; or

(c) evidence of eye witnesses.

See the cases of:

(1) Oka v. The State (1975) 9 – 11 SC p. 17 and

(2) Emeka v. The State (2001) 14 NWLR (Pt.734) p. 666.

It is trite in law that an accused person can only be charged with an offence created by a penal statute. This can either be in the Criminal Code, the Penal Code or any other penal statute such as the Corrupt Practices and Other Related Offences Act, 2000 which is the relevant law under which the charges were preferred in the instant case. Furthermore, each count which is an indictment on the conduct of an accused must be specific and precise. It must be tied to the offending Section of the penal statute in order to enable the court deal with the specific criminal conduct.

In the instant case, the appellants were arraigned with a two count charge contrary to Section 26(1) (c) and punishable under Section 9(1) of the Corrupt Practices and Other Related Offences Act, 2000.

Sections 9(1) and 26(1) of the Act provides respectively as follows:

“9. …

(1) Any person who corruptly

(a) gives, confers or procures any property or benefit of any kind to, on or for a public officer or to, on or for any other person; or

(b) promises or offers to give, confer, procure or attempt to procure any property or benefit of any kind to, on or for a public officer or any other person, on account of any such act, omission, favour or disfavour to be done or shown by the public officer, is guilty of an offence of official corruption and shall on conviction be liable to imprisonment for seven (7) years.”

“26 …

(1) Any person who –

(a) attempts to commit any offence under this Act;

(b) does any act preparatory to or in furtherance of the commission of any offence under this Act; or

(c) abets or is engaged in a criminal conspiracy to commit any offence under this Act; or

(d) commits any offence under this Act, is guilty of an offence and shall, on conviction, be liable to the punishment provided for such offence.”

The two counts have been earlier on in this judgment reproduced.

I agree entirely with the learned senior counsel for the appellants that under count one, apart from the main element of the offence of conspiracy, the additional or second element as charged under count one pursuant to section 9(1) of the Act is “Corruptly giving the sum of twenty thousand Naira to a public officer … ” This is to say that in the main, in order to prove the guilt of the appellants, these two elements must be established by the prosecution.

Having found that there are two main elements of the offence under count one, my duty is to see if by the evidence adduced at the trial, the prosecution proved the two ingredients against the appellants beyond reasonable doubt.

The first essential element of the offence of conspiracy that the prosecution must establish is, the abetment and engagement of the appellants to criminally commit the offence under the second count.

It is trite that the conspiracy to commit a crime must be proved independently of the commission of the crime itself. See the case of: Obiakor v. State (2002) 10 NWLR (Pt.776) p. 612 at pgs. 628-629 paras. H-A. Conspiracy is the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. The two or more persons must be found to have combined in order to ground a conviction for conspiracy. For the offence to be in existence, there must be a consent of two or more persons (other than husband and wife). There must be an agreement which is an advancement of an intention conceived in the mind of each person secretly “mens rea” The secret intention must have been translated into an overt act omission or mutual consultation and agreement’ “actus reus” – see the cases of:

(1) Amofa v. R. (1952) 14 WACA p. 238;

(2) Mohammed v. The State (1991) 5 NWLR (Pt. 192) p.438; and

(3) Iden v. The State (1994) 8 NWLR (Pt. 365) p. 719.

The offence of conspiracy is complete when it is shown that here was a formation of a scheme or agreement between the parties, but before the doing of the act for which the conspiracy is formed. The proof of conspiracy is generally a matter of plausible inference deduced from certain criminal acts of the accused done in pursuance of an apparent criminal purpose in common between them. This is because it is generally recognized in law that in a charge of conspiracy, proof of the actual agreement which is an essential ingredient of the crime is not always easy to come by. Thus, the fact that there was no positive evidence of any agreement between the accused persons to commit the offence is not enough to hold that the prosecution cannot establish the charge of conspiracy. See the cases of:

(1) Usufu v. The State (2007) 1 NWLR (Pt. 1020) p. 94;

(2) Oyakhire v. The State (2006) 15 NWLR (Pt. 1001) p. 157; and

(3) Alarape v. The State (2001) 5 NWLR (Pt.705) 79.

The courts can actually infer a conspiracy and convict on it if it is satisfied from the evidence that the accused persons pursued, by their acts the same object, one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design.

As an adjunct to the provisions of the law on the offence of conspiracy is Section 8 of the Criminal Code which provides as follows:

8….

When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

However, presumption or inference of common intention is not too readily formed and applied. The circumstances of each case will always be well considered and the trial court must exercise great caution before drawing its inference or assumption. For there is a saying that even the devil himself does not know the intention or the mind of man. Proper proof of a common intention is indeed desirable in order to prove the guilt and ground the conviction of accused persons in a charge of conspiracy.

In the present case, the learned trial Judge concluded that the common intention of the appellants was centered on obtaining a letter that would exonerate or enable the 1st appellant to secure renomination to contest for the seat of Chairmanship of Oriade Local Government. See the last paragraph of page 506 of the record. The premise of this conclusion can be found in lines 8 to 11 at page 497, lines 25 to 29 at 502 and lines 1 to 6 at p. 503 of the record. The trial court held therein respectively as follows:

“…The chain of sequence of activities from May, 2002 when the 1st accused was looking for Mr. Pam with the complimentary card of his counsel, the visit of the 2nd accused later in the day on 9th July, 2002 to locate Mr. Pam and known to the 1st accused is for no other purpose but (sic) to solicit for (sic) assistance to get reply (sic) to exhibit P12 …. The evidence of the prosecution on this issue is that apart from the visit of the 1st accused in May, wherein the 1st accused dropped a complimentary card of his solicitor the coming together of the 1st & 2nd accused leading to their trip to Lagos to collect (sic) letter of protest and the subsequent journey to Abuja and the desire of the 2nd accused to see PW4 after they have submitted the letter of protest by (sic) the 1st accused counsel and his request for a letter which eventually & exhibit P12, the coming together of the 1st (sic) 2nd accused (sic) PW3 and PW4 and the approval of exhibit P12 by the 1st accused which led to his directive to the accused to settle PW3 and the subsequent handing over of the money N20,000.00 by the 2nd accused to PW3 Popoola before their arrest put together shows (sic) that both accused agreed to offer the said money exhibit P3, N20,000,00 to a public officer…”

A very simple analysis of the above quoted line of reasoning and conclusions of the learned trial Judge reveals that the 1st appellant’s first visit to Mr. Pam in Abuja was sometime in May, 2002. It was however on his second visit to Abuja on 9/7/02 in company of the 2nd appellant that both of them were arrested.

Although it is a fact that on that second visit, both the 1st & 2nd appellants also sought to see and indeed saw Mr. Pam. With all due respect to the learned trial Judge, in my humble opinion, those two visits cannot rightly be classified as and tagged a ” … chain of sequence of activities … “. It is also pertinent as can be gleaned from the printed record that the purpose for which the 1st and 2nd appellants visited Mr. Pam on each of the two occasions was to deliver their solicitors’ complimentary card and the letter exhibit P11. It is not in dispute that Mr. Pam used to be a junior counsel in the chambers of the appellants’ solicitor. It becomes apparent that the appellants did not visit Mr. Pam at their own prompting but at the instance of their solicitor, to deliver the solicitor’s messages to Mr. Pam. The inference of conspiracy by the learned trial Judge was not well founded. The purpose cannot reasonably be inferred from the said visits of the appellants.

I have carefully perused the entire length and breath of the record of the proceedings of the trial court. I cannot sight or deduce any act or conduct of the appellants amounting to a common intention or conspiracy to prosecute any unlawful purpose. What is more, the prosecution indeed hinged the inference of conspiracy solely on the two visits of the appellants to the Abuja office of the Commission and their meeting with Mr. Pam in that regard. In the circumstances of this case, it is my firm view that the said visits do not amount to proof of the criminal liability of the appellants in respect of the first element of the offence of conspiracy with which they were charged under count one.

Before I proceed further to consider the second element of the offence charged under count one, I will want to veer off to count two and determine the elements of the offence with which the appellants were charged therein. Count two was reproduced earlier on this judgment.

Suffice it to say that the particulars of the offence with which the appellants have been charged herein for the purpose of this case are simply as contained in count two and indeed count one. It is therefore most unnecessary as no useful purpose will be served by dissecting the entirety of the provisions of section 9(1) of the Act. What is more the provisions of the section of law under which an accused is charged would be interpreted in light of the factual situation in the case before the court and not “in vacuo” See the case of: Solola v. The State (2005) 11 NWLR (Pt. 937) p. 460

From the particulars of count two therefore, and in my humble opinion, the following are the elements of the offence with which the appellants were charged therein:

(i) Corruptly giving to an official of the Commission the sum of twenty thousand naira (N20,000) as gratification.

(ii) The purpose of (i) above is the issuance of a letter to the 1st appellant exonerating him from allegations of corrupt practices for which he was being investigated by the Commission.

I will briefly pause here before considering whether or not the prosecution had proved the two elements identified above. Earlier on in this judgment while dealing with the elements of the offence with which the appellants were charged in count one in addition to that of conspiracy simpliciter, I identified as the second element thereunder as:

“Corruptly giving an official of the Commission the sum of twenty thousand naira (N20,000=) for the purpose of issuing to the 1st appellant a countermanding letter exonerating him from allegations of corrupt practices for which he was being investigated by the commission.”

In my humble but firm opinion, the above second element of the offence charged under count one is a replica of and indeed “in pari materia” with the two elements of the offence charged in count 2.

For purposes of brevity, I will therefore subsume the second element of the offence charged under count one into the first and second elements of the offence charged under count two. I will now consider them seriatim for the purposes of establishing whether the prosecution had proved the said two elements as they relate to the offences charged in both counts one and two.

The first ingredient is that of corruptly giving to an official of the Commission the sum of N20,000= as gratification. The word “corrupt” in the contest of this count simply connotes the impairment of a public official’s duty by bribery. It is an act of gross impropriety.

By the provisions of section 26(1) (c) of the Act, it must be established that the money given is gratification, for corruption to be imputed.

Gratification is a given reward for a service or benefit. The purport of this element under consideration is that it must be proved that the appellants gave the sum of N20,000 to PW3 as a reward for the purpose of a rendered service or conferred benefit. It is pertinent to note that the emphasis is on actual giving of gratification by the appellants for a benefit which has been conferred on them by PW3.

Put in other words, the appellants must be shown to have had a criminal intention “mens rea”, the purpose of which was, receiving a benefit. The next step in furtherance of the criminal intention is the actual giving of the alleged sum of N20,000 which giving constitutes the criminal act, “actus reus” This indeed leads to and is in tandem with the second element.

The second essential element is simply that the purpose for which the gratification was given must be established. It is the case of the prosecution in this case that the purpose for which the alleged sum of N20,000 was given to PW3 by the appellants was the issuance of a letter by the Commission exonerating the 1st appellant from allegations of corrupt practices for which he was being investigated by the Commission.

The circumstances and the full gist of this case have been meticulously put forward by learned counsel for both parties, especially, the learned senior counsel for the appellants. It will therefore amount to repetition and tautology for me to go into these again. What is more, I have in substantial details recapitulated these at the commencement of this judgment. I will therefore only touch on the material facts in the further resolution of the grouse of issues one and two.

In respect of the alleged giving of N20,000 to PW3 by the appellants, the replica evidence of the prosecution witnesses all point to the fact that, the appellants gave the said sum to PW3. PW4 gave evidence that he was in the company of PW3 at the time they were drinking with the appellants. The said sum was alleged to have been left loose on the table when PW3 & PW4 were seated with the appellants at the time of the arrest of the appellants. PW1, PW2 and PW5 confirmed this assertion. The appellants gave evidence that at the time of their arrest, the alleged sum was all the money they had on them. The prosecution did not adduce evidence to contradict or controvert this assertion to show that the appellants were thoroughly searched by PW1 and PW5 and other money was on them. The learned counsel for the respondent contended that it was possible and rightly too that the appellants could easily access their bank accounts to collect money before embarking on their return trip out of Abuja. This is assuming that the appellants operate bank accounts which have branches in Abuja. Even at that, the evidence of the Appellants is that they were to lodge at the hotel where they were arrested that night. The prosecution did not establish that they had checked in at the hotel at the time of their arrest. If all the money that was on them was N20,000, which sum the prosecution alleged had been given to PW3, in my opinion, there arises a doubt as to the credibility of these assertions in the evidence adduced by the prosecution in this regard.

The learned trial Judge concluded that the 2nd appellant ought not to have brought out the envelope containing the whole lot of N20,000 just to pay for drinks. To my mind, and with due respect to the learned trial Judge, one is left to wonder how any part of the amount in the envelope could have been removed without first bringing out the envelope containing the entire money itself for whatever purpose. This is also coupled with the finding of the trial court that the waiter who had already been called upon to receive money in settlement of the drinks consumed by the appellants was not at the appellants’ table at the time the appellants were arrested. See pages 496 to 497 of the record. There is nothing in the printed record to show that the prosecution adduced any evidence in this regard.

Assuming without conceding that indeed the sum was actually given to PW3 as allegedly prearranged by the appellants and PW4, the second element of the offence under consideration must still be established to compliment the first element thereby making the offence fully complete.

The case of the prosecution at trial was that the alleged gratification was for the purpose of issuing to the 1st appellant a letter exonerating him from allegations of corrupt practices for which he was being investigated by the Commission. This is the purport of count two and the benefit that allegedly accrued to the appellants.

The learned trial Judge found for the prosecution that the purpose for which the appellant gave the said money to PW3 was for no other purpose than for the issuance of exhibit P12 – see lines 4 to 5 in page 498 of the record.

It is an established principle of criminal law that not only does the burden of proving a crime rests squarely on the prosecution, the standard of proof is also that of beyond reasonable doubt. The clear meaning of this is that every ingredient of the offence must be established to that standard of proof so as to leave no reasonable doubt regarding the guilt of the accused. See:

(1) Anekwe v. The State (1976) 9 – 10 SC p. 255; and

G (2) Aiguoreghian v. The State (2004) 3 NWLR (Pt. 860) p.367.

Where therefore the existence of an essential fact on which the prosecution who bears the burden of proof relies is kept in doubt, the prosecution must definitely fail. The court is duty bound to resolve any doubt created by the testimonies of prosecution witnesses in favour of the accused person. A reasonable doubt as to the guilt of an accused arises if anyone or more of the circumstances proved in a criminal trial is inconsistent with the guilt and at the same time may be inconsistent with innocence. See the cases of:

(1) Adio v. State (1979) 12 NSCC p. 51 and

(2) Omotaire v. Onokpasa (1984) 12 SC p. 19.

Thus, if as in the present case two possibilities can be inferred from or are equally consistent with two or more conflicting or divergent or opposing hypothesis or propositions, such evidence will definitely not support a judgment in favour of its proponent. This is because the totality of the evidence will be susceptible to more than one interpretation.

The learned trial Judge in all fairness to him identified this doubt. His Lordship however failed to resolve it in favour of the appellants as required of him by law. In lines 10 to 12 at page 498 of the record, the learned trial Judge observed thus:

“…The accused having submitted exhibit P11 to ICPC office, one does not see any need again to start pressing through PW4 for a reply to change the content of exhibit P7 (sic)”

The reason I inserted (sic) immediately after “P7” in the above quoted observation of the learned trial Judge is because I consider it a mere slip by His Lordship. The exhibit referred therein should not be “P7” but “P8”. Exhibit P11 was written to ICPC by the 1st appellant’s solicitor in respect of and to change exhibit P8.

The said observation of the learned trial Judge is in tandem with the submission of the appellants’ learned senior counsel, that the 1st appellant’s solicitors had written a harshly worded letter exhibit P11 to the Chairman of the Commission demanding a retraction of exhibit P8. The letter was submitted on 9/7/02 the day the appellants were arrested and the letter was yet to be attended to. There is indeed a reasonable doubt that the appellants in the given circumstances of this instant case would offer a bribe to PW3. They would probably exercise some restraints and patience no matter how slight and little; and await a response to exhibit P11. The benefit of that reasonable doubt in law ought to have been given to the appellants by the trial court.

This leads me to the matter of exhibit P1, the alleged confessional statement of the 2nd appellant. The imperativeness of the consideration of this matter lies in the fact that the prosecution dwelt and in deed the trial court acted on it in convicting the appellants. What is more, it was contested at trial by the appellants but without success.

A confessional statement is considered to be the best evidence in criminal procedure. It is a statement of admission of guilt by the accused person and the trial court must admit it in evidence unless it is successfully contested at the trial. This principle of law was also derived from the common law and the relevant provisions of our local statutes. By virtue of section 27 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. Further, section 27(2) stipulates that if made voluntary, a confession is deemed to be a relevant fact against the maker.

Once a confessional statement is admitted in evidence it becomes part of the case for the prosecution and the trial court is bound to consider its probative value.

(1) Nwachukwu v. State (2002) 12 NWLR (Pt. 782) p. 543 and

(2) Isah v. State (2007) 12 NWLR (Pt. 1049) p. 582.

However, before a confessional statement alone can ground the conviction of an accused person, and without corroboration, it must be shown to be direct, positive and unequivocal as to the admission of guilt by an accused person. The court must be satisfied with the truth of such a confession:

(1) Kim v. The State (1991) 2 NWLR (Pt. 175) p. 622 and

(2) Emeka v. The State (2001) 14 NWLR (Pt. 734) p. 666.

Otherwise, it should be desirable to have outside the accused’s confession to the Police some further evidence no matter how slight, of the circumstances which make it probable that the confession was true.

(1) R. v. Itule (1961) 2 SCNLR p. 183;

(2) Yesufu v. The State (1976) 6 SC p.167;

(3) Ikpasa v. A.-G., Bendel State (1981) 9 SC p.7;

(4) Hassan v. The State (2001) 15 NWLR (Pt.735) p. 184; and

(5) Madjemu v. The State (2001) 9 NWLR (Pt. 718) p. 349.

I have gone through the so-called confessional statement of the 2nd appellant, exhibit P1 contained in pages 309 to 316 of the record. Assuming without conceding that the 2nd appellant personally wrote the entire length and breath of the statements as postulated by the prosecution, there arises a poser: Can it be said that the contents of the statements amount to an admission or inference of the commission of the alleged offence by its maker, the 2nd appellant? I have no difficulty in answering the poser in the negative. The statement and indeed the sworn evidence of the 2nd appellant are a vehement and unmistakable denial of the commission of the offence.

The learned trial Judge observed that in the said written statement of the 2nd appellant exhibit P1, he denied knowing PW4 before the day of the incident; while in his sworn testimony during trial, he claimed he had known PW4 long before that day. The learned trial Judge therefore concluded that the 2nd appellant lied and therefore was inconsistent – See page 500 lines 15 to 25 of the record.

It was held in the case of Haruna v. The Police (1967) NMLR C p. 145 at p. 153 that:

“…although a man may lie because he is guilty, he may just as well lie because he is stupid or afraid or both and whether he is guilty or not.”

(The italics is mine for emphasis).

Also in Okpere v. The State (1971) 1All NLR p. 1 at p. 5 the Supreme Court per Coker, JSC observed that:

“It has never been the law that the mere fact that a person told lies is by itself sufficient to convict him of an offence unconnected with mendacity nor does the fact that an accused person has told lies relieved the prosecution of its duty of proving the guilt of the accused of the offence charged beyond reasonable doubts.

See Woolmington v. Director of Public Prosecutions (1935) AC 462.)”

The two above referred cases were quoted with approval recently by the Supreme Court in the case of: Ogidi v. The State (2005) 5 NWLR (Pt. 918) p. 286 at p.31

The law is really that when a witness, including an accused is shown to have made a previous statement which is inconsistent with an oral testimony given later at trial, such oral evidence will not only be regarded as unreliable as the trial court rightly found in the instant case; so also the previous statement will not constitute an evidence upon which the Court can act. See the cases:

(1) Ukpong v. Queen (1961) 1 SCNLR p. 53 and

(2) Omini v. The State (1999) 12 NWLR (Pt. 630) p. 168.

In the instant case, the trial court was therefore wrong to have acted upon the written statement of the 2nd appellant, exhibit P1 to convict the appellants having declared that the statement was inconsistent with the 2nd appellant’s oral testimony at trial and having declared that the oral testimony was unreliable.

The next and most pertinent poser in this case is: Did the prosecution establish the fulfilment of the purpose for which the gratification was allegedly given to PW3? Put differently: Was the letter of exoneration issued to the 1st appellant?

To properly answer this poser, it is necessary to examine exhibit P12, the purported letter of exoneration presented by the prosecution as having been issued to the appellants, in particular, the 1st appellant. To fully appreciate the content of exhibit P 12, I hereunder reproduce it. It reads thus:

“INDEPENDENT CORRUPT PRACTICES AND OTHER RELATED OFFENCES COMMISSION

Tel: 09-528810 Plot 802, Zone A9,

Fax: 09-5238810 Constitution Avenue,

Our Ref: . Central Area,

9th July, 2002

Plot 802, Zone A 9,

Chief Adegboyega Awomolo, SAN

State Secretary, Alliance for Democracy (AD)

30, MDS Road

Oshogbo, Osun State

Dear Sir,

RE: ALLEGATION AGAINST MR. CALEB OJO, FORMER CHAIRMAN ORIADE LOCAL GOVERNMENT COUNCIL, OSUN STATE

I am directed to refer to your letter reference number AD/OS/SEC.2/2002 dated 24th June, 2002 and to our reply reference number ICPC/GC/14/VII/75 dated 1st July, 2002, and to make further clarification on the subject. Our said letter of 1st July, 2002 should not be understood to mean that Mr. Caleb Ojo and his wife have been found guilty of any offence by the Commission.

2. The allegations brought against Mr. Ojo are mere allegations which have not yet been proven. He is therefore not guilty until proven so in a court of law as required by the Constitution of the Federal Republic of Nigeria, 1999.
3. We hope that the foregoing sufficiently clarifies the position of the Commission.

Yours faithfully,

Folarin Popoola

Petition Registrar.”

Exhibit P12 was in furtherance of exhibit P8. The case of the respondent is centered and anchored on exhibit P12 as a rebuttal or revocation of exhibit P8. The latter carried the indictment of the 1st appellant. Hence, the appellants allegedly gave gratification to PW3 to issue exhibit P12 to nullify the big issue of indictment which was an impediment in the way of the 1st appellant. It is also pertinent to reproduce exhibit P8 to bring it into highlight, full glare and view. It reads thus:

“ICPC/GC/14/VII/75

1st July, 2002

Chief Adegboyega Awomolo, SAN

State Secretary, Alliance for Democracy (AD)

30, MDS Road

Oshogbo, Osun State

Dear Sir,

RE: CONFIRMATION OF THE STATUS OF ALLEGATION AGAINST MR. CALEB OJO, FORMER CHAIRMAN ORIADE LOCAL GOVERNMENT COUNCIL, OSUN STATE

1. I am directed to refer to your letter No.AD/OS/SEC.2/2002 dated 24th June, 2002 in connection with the above subject matter.
2. In response to your enquiry, I am also directed to inform you that the allegations made against Mr. Caleb Ojo and his wife are very serious.
3. Although the investigation is still in progress, what has so far been unraveled gives much cause for concern. Investigation has also revealed that some of his denials are untrue. In any case, to all intents and purposes, Caleb Ojo is an accused person on bail. He has made statement under caution; and a copy of his application for bail and the Bail Bond signed by him and/or on his behalf are herein enclosed for your attention.
4. I am also to say that it is not the practice of the Commission to give out information about the stage reached in the investigation of any case but it has become necessary in this case to do so not only in view of the purpose for which the information is required by you, but also because of the contents of the enclosed affidavit deposed to and sent to us by the Petitioners in this case.

I hope that the much that has been said is enough to satisfy the purpose of your enquiry.

5. In the meantime, efforts will be made to speed up the investigation and conclude the case soonest.
6. Finally, I am asked to commend you for the initiative you have taken to ascertain the position in this matter. It is hoped that others will learn from this worthy example to ensure transparency in the process of nominating candidates for election.

Yours faithfully,

SGN

Folarin Popoola

Petition Registrar.

It was because of the alleged misinterpretation of exhibit P8 that the 1st appellant’s solicitor wrote to the Commission demanding the proper purport and clarification of exhibit P8. The solicitor’s letter to the Commission in this regard is exhibit P11 in pages 331 to 333 of the record.

To my and any discerning mind, the purport of exhibit P8 is that although the allegations contained in the petition against the 1st appellant and his wife were very serious, investigation was still in progress. In exhibit P8, the Commission however gave its assurances to speed up the investigation and conclusion of the case. It is pertinent to note that exhibit P8 was a reply to exhibit P7 from the Secretary, Alliance for Democracy (AD), Osun State. Exhibit P7 requested to know the status of the 1st appellant in respect of the corrupt practices allegations levelled against him which allegations were being investigated by the Commission.

Having evaluated the above reiterated documentary evidence, I find it difficult to agree with the learned trial Judge’s conclusion and findings which ultimately confirmed that the purpose of exhibit P12 was an overwhelming rebuttal of exhibit P8 by implication. Exhibit P12 clearly responded to exhibit P7 and referred to P8. The intendment of exhibit P12 is that exhibit P8 was not to be taken to mean that the appellant and his wife had been found guilty of any offence by the Commission. There is nothing to expressly or impliedly show that exhibit P12 was an evidence that the Commission was done with the investigation said to be in progress in exhibit P8 and that the 1st appellant had been found not blameworthy of the allegations against him.

I must state that the submissions of learned counsel for the respondent under this issue are quite inconsistent and contradictory. He urged upon this court to disregard exhibit P8 as not being in issue at all. Whereas, the pith of his entire argument and conclusions is that exhibit P. 12 which the prosecution claimed to be the benefit that accrued to the 1st appellant for the gratification which the two appellants allegedly gave to PW3 was a cancellation and revocation of the same exhibit P8. Accordingly, exhibit P12 was submitted by him to have exonerated the 1st appellant from his indictment contained in and conveyed by exhibit P8.

Regarding the evidential value of exhibit P12, learned senior counsel for the appellants contended that exhibit P12 being an unsigned document, was worthless and the trial court ought not to have ascribed any probative value to it. The reasons advanced with legal authorities in support of this contention have already been reiterated earlier on in this judgment. In agreeing with the trial court’s findings on this point, the learned counsel for the respondent submitted that it was immaterial that exhibit P12 was unsigned or incapable of exonerating the 1st appellant. In his opinion, the appellants gave the alleged gratification to PW3 in exchange for the unsigned document. Hence, the offence of official corruption was completed when the gratification was given to PW3. I disagree with both the trial court findings and the submissions of the respondent’s learned counsel. I am of the humble view that if these were correct, no benefit could be conferred on the 1st appellant by the issuance of exhibit P12; and it will not serve the desired purpose of exonerating the 1st appellant. Consequently, the alleged gratification was aimless. The entire gamut of the case of the prosecution ought to be regarded as and in my view is indeed suspect. The second element of the offence charged under count one which I have found to be “in pari materia” with the two elements of the offence charged under count two was not established by the prosecution. The learned counsel for the respondent’s submission that the offence was indeed committed when the gratification was given, with due respect to him is legally unsound. By count two as couched by the prosecution, the purpose of the gratification was to fulfill must be established to make the offence charged complete. The line of reasoning of the respondent’s learned counsel would hold sway if the appellants were charged with an attempt to commit official corruption. In which case, the content or existence of exhibit P12 and indeed whether or not exhibit P12 satisfied the appellants’ purpose will be immaterial. So also the submission of the respondent’s learned counsel that the appellants’ main agenda for undertaking to deliver exhibit P11 to the Commission’s office in Abuja was to meet with and seek the assistance of the PW4 is not borne out of the evidence adduced by the prosecution at trial. It is trite that counsel’s address or submission no matter how sound and brilliant can not take the place of or be a substitute for evidence. See the cases of:

(1) Blihari v. Obasanjo (200S) 13 NWLR (pt.941) p. 1 and

(2) Fatoba v. Ogundahunsi (2003) 14 NWLR (Pt. 840) p.323.

It is strong trite law in a criminal case as adverted to by me earlier on in this judgment that all the ingredients of an offence charged must be proved. Any person accused of a crime will be convicted only if evidence had been adduced to prove the crime. All the items of evidence adduced must have been scrupulously examined, analysed and weighed to assess the substantiality of the testimonies and statements proffered and made. See the cases of:

(1) Ogunye v. The State (1999) 5 NWLR (Pt. 604) p. 548;

(2) The State v. Onyeukwu (2004) 14 NWLR (Pt 893) p.340.

So also the interpretation of section 11 of the Act by respondent’s learned counsel is totally misconceived as it is not relevant to the instant case. The provisions of section 11 will only come to play and become applicable where an accused person puts forth the defence that he gave gratification to and believed that the public officer would do him the favour and the public officer failed to do the said favour for whatever reason.

In summation, it is firmly settled that in criminal trials, the acts of the accused must be proved to be within the confines of the particulars of the offence charged. When as in the instant case the prosecution failed to prove the particulars stated in the counts, the accused persons should not be convicted. Mandatorily, the ingredients of the offences charged must first of all be proved beyond reasonable doubt by the prosecution. This age-long principle of law cannot be whittled down, not even by the proviso to section 36 of the 1999 Constitution and the provisions of section 141 of the Evidence Act and sections 11(c) and 53(1) of the Corrupt Practices and Other Related Offences Act. See the cases of:

(1) Mandilas & Karaberis Ltd. v. I.G.P (1958) 3 FS.C. p.20; SCNLR 335

(2) Nwosu v. Board of Customs & Excise supra;

(3) Ubal1atu v. C.O.P (supra); and F

(4) Oladelo v. State (supra).

The learned senior counsel for the appellants contended that the appellants were denied fair hearing because according to him, the trial court failed to consider and pronounce on some points raised by him at trial. Rightly, the principle of law is that when a party submits an issue for court’s determination, the court is expected to consider and pronounce upon that issue one way or another. However, the essence of fair hearing is that the parties must be given an equal opportunity to be heard throughout the trial, that is, when the trial commences with the taking of the plea of the accused person on the charge.

On the whole, the right to be heard is a fundamental and indispensable requirement of a valid judicial decision. However, fair hearing is in the procedure followed in the determination of the case, and not in the correctness of the decision. See the cases of:

(1) Rabiu v. State (2005) 7 NWLR (Pt. 925) p. 491 and

(2) State v. Onagoruwa (1992) 2 NWLR (Pt. 221) p. 33.

The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his own observation justice has been done in the case. Moreover, the question whether there has been a denial of fair heating being one of substance and not of form will always be decided in the light of the realities of any particular case. See the cases of:

(1) Mohammed v. Kano N. A. (1968) All NLR p.424 and

(2) U.B.N. Plc. v. Ikwen (2000) 3 NWLR (Pt. 648) p. 223.

In the case of: Irolo v. Uka (2002) 14 NWLR (Pt. 786) p. 195 my Lord Ogundare, JSC of blessed memory observed at page 237 paras. C -D that:

“…The trial Judge did not resolve the issue of traditional history. That is bad enough, it is his bounden duty, on the evidence before him, to resolve it either way, ”

It was however held in that case that failure of a court to decide on one of the issues placed before it does not amount to a denial of fair hearing but only an abandonment of a duty placed on the Court to adjudicate. See also the cases of:

(1) Omokhodion v. FR.N. (No.1) (2005) 10 NWLR (Pt.934)p.568

(2) Okeke v. The State (2003) 15 NWLR (Pt 842) p.25.

From all the circumstances of the instant case, the appellants cannot validly complain that they were denied fair hearing by the trial court. The appellants have rightly exercised their constitutional right by appealing the judgment of the trial court which they consider incorrect.

Consequent upon the aforesaid, I find that the prosecution failed, to establish and prove beyond reasonable doubt against the appellants, all the identified elements of the offences with which they were charged under counts one and two as reiterated above. Issues one and two are accordingly resolved in favour of the appellants.

Issue Three

“Whether the decision of the lower court convicting the appellants was perverse to the extent of disturbing the judgment of the lower court.”

The learned counsel for the appellants submitted that it is trite that a decision will be considered to be perverse in the following circumstances:

(a) where the trial Judge takes into account matters which he ought not to have taken into account; or

(b) where the trial Judge shuts his eyes to the obvious or to proved facts in favour of a party; or

(c) where the trial Judge distorts the facts or evidence in a case so as to tilt the scale of justice in favour of a patty; or

(d) when the decision runs counter to the evidence; or when the decision has occasioned a miscarriage of justice.

On this legal position, he relied on the cases of:

(1) Baridam v. State (1994) 1 NWLR (Pt. 320) p. 250 at p. 260 para. F;

(2) Statle v. Ajie (2000) 11 NWLR (Pt. 678) p. 434 at p. 449 paras. C and

(3) Alolagbe v. Shorun (1985) 1 NWLR (Pt. 2) p.360 at p.375 para. H.

The learned senior counsel for the appellants then identified some findings made and relied upon by the lower court which in his opinion rendered the consequent judgment in this case perverse.

The first of the findings is that the trial court wrongly took into account the 1st appellant’s May 2002 visit to the Commission’s office, Abuja as proof of soliciting assistance in respect of exhibit P8 which was not even in existence at the time. It can be seen that exhibit P8 was written on 1st of July. He referred to paragraph 1 at page 497 and pages 326 to 327 of the record of proceedings.

Another of the findings of the trial court considered to be perverse by the learned senior counsel for the appellants is that the meeting of the appellants with the PW3 and PW4 at the Rita Lori Hotel, Abuja was coincidental. The uncontroverted and unchallenged evidence of the 2nd appellant and DW1 was that in response to the enquiry of PW4, the 2nd appellant actually told PW4 earlier on that day that they, the Appellants would be lodging at the hotel. Hence, PW4 already knew about the plan of the appellants to lodge at the said hotel. Therefore, the distortion of that material piece of evidence by the trial court the scale of justice in favour of the prosecution and occasioned a miscarriage of justice to the appellants.

It was also the contention of the appellants’ learned senior counsel that the interpretation of the 2nd appellant’s alleged confessional statement exhibit P1 as proof of the appellants’ guilt by the learned trial Judge was misconceived. This can be seen at page 493 of the record of proceedings. The assertion in the said exhibit P1 by the 2nd appellant that he and the 1st appellant drank together with PW3 and PW4 at the hotel on the night of the incident when they were arrested did not amount to a proof of the appellants’ guilt as the appellants had good cause to be at the hotel known to PW4 who later visited them there that night in company of PW3. Furthermore, it was canvassed in favour of the appellants that the learned trial Judge wrongly found by creating the impression that the money found in possession of the appellants as the amount they allegedly gave as bribe to PW3 was loosely placed on the table in four packs of N5,000 in N50= denomination. This according to learned senior counsel was not the evidence before the learned trial Judge. The evidence of the 2nd appellant was that the entirety of that money was together in a brown envelope. The envelope was brought out when the appellants wanted to pay for the drinks consumed by them. The envelope had to be brought out to enable them settle their bill. The finding of the learned trial Judge that the volume of money found on the table at the time of arrest was more than the 2nd appellant required to settle the said bill and that the money was intended for the bribe; was perverse. The learned trial Judge also failed to properly evaluate the piece of evidence of the 2nd appellant that the hotel waiter had been signaled to and he was being expected to collect money in settlement of the consumed drinks. The learned trial Judge held that there was no waiter with the appellants when they were arrested. These deductions and findings of learned trial Judge showed that he failed to properly appreciate the testimonies of the 2nd appellant and in total this occasioned a miscarriage of justice to the appellants.

The final finding of the trial court which the appellants’ learned counsel found to be perverse has to do with exhibit P1, the alleged confessional statement of the 2nd appellant. It was contended in favour of the appellants that exhibit P1 was seriously contested in a trial within trial in the course of the trial at the lower court. Although the learned trial Judge ruled against the appellants in this regard, this court was urged to have another look at exhibit P1. The reason is that, not only was part of exhibit P1 written by the 2nd appellant under extreme harsh conditions, part of exhibit P1 was actually written by both PW1 and PW5 in turns as if he was the one who wrote the entirety of the statement. This court was referred to pages 309 to 314 of the record which reveal clearly that from line 4 of Exhibit P1, there was a change in the character of the handwriting. Also, the alleged contradiction wrongly found by the trial court relating to whether or not the 2nd appellant and PW4 had known themselves before the incident culminating in this case is not a material fact. This is because it would not matter, if the prosecution was able to establish that the 2nd appellant actually offered the alleged bribe to PW4. In effect, proof of the appellants’ guilt in the charge will not rest on the existence of a prior relationship between PW4 and the 2nd appellant. In essence, the said contradiction not relating to any material issue ought not to weigh in the mind of the trial court against the appellants.

A wrap-up of the submissions of the learned senior counsel for the appellants is that the evidence adduced by the prosecution failed to establish all the material elements of the offences with which the appellants were charged. Hence, the case against the appellants was not proved by the prosecution beyond reasonable doubt as required by law. In essence, the judgment of the lower court is perverse, liable to be struck out and the appellants are entitled to be discharged and acquitted by this court.

Responding on issue three, the learned counsel for the respondent contended that the finding of the lower court that the May 2002 visit of the 1st appellant to PW4 at the Commission’s Abuja office was an attempt to influence the reversal of Exhibit P8 is not a “ratio decidendi” but an “obiter dictum” which does not impact negatively on the judgment of the lower court. He relied on the case of:

Umanah v.Attah (2006) 27 NSCQLR p. 706 at p. 720; (2006) 17 NWLR (Pt.1009) 503.

What is more, learned counsel pointed out that at the time of the said visit, the investigation of the 1st appellant by the Commission was in progress. Furthermore, the 1st appellant denied knowing PW4 in exhibit P1, his extra-judicial statement, whereas he admitted knowing him intimately in his evidence on oath. This being a material contradiction, the trial court was right in refusing to rely on this piece of evidence.

The learned counsel for the Respondent submitted that the finding of the trial court that the appellants met with PW3 and PW4 at the Rita Lori Hotel Abuja, and there gave the sum of N20,000= to PW3 as gratification to procure exhibit P12 was supported by sufficient and credible evidence on record.

Continuing, the learned counsel for the respondent argued that the learned trial Judge did not convict the appellants on the admission of the 2nd appellant but on other sufficient and compelling evidence on record.

The trial court inferred that the 2nd appellant could not have brought out the four bundles of notes totaling N20,000 at a go just to pay for their drinks at the hotel but that he brought out the entire packs for the purpose of giving them to PW3 as the gratification agreed upon. This inference is in line with commonsense, reasonable and infallible. The said inference was strongly supported by the testimony of PW3 at page 259, lines 23 to 34 of the record of proceedings that the packs were handed over to him by the 2nd appellant on the prompting of the 1st appellant after reading through and expressing satisfaction with the content of exhibit P12. The defence of the appellants in this regard was not in the earlier confession of 2nd appellant although he denied this piece of evidence when he testified during trial. This amounts to inconsistency and the trial court was right in rejecting that evidence. The learned counsel for the respondent canvassed that the 2nd appellant having given inconsistent evidence on his prior relationship with PW4, an important issue, the learned trial Judge was right to hold that the 2nd appellant was not a reliable witness whose evidence should be believed. Moreover, there were other cogent evidence on record proving the guilt of the appellants.

It was further contended in favour of the respondent that, it is the duty and preserve of a trial court to make findings of facts and appraise evidence given at a trial and an appellate court would not ordinarily interfere with such findings unless they are manifestly seen to be perverse. On this legal position, he referred to the cases of:

(1) Ajiboye v. Ishola 26 NSQLR (Pt.2) p. 1399 at p. 1427; (2006) 13 NWLR (Pt.998) 628 and

(2) Ume v. Okoronkwo (1996) 12 SCNJ p.4: (1996) 10 NWLR (Pt.477) 133

Learned counsel for the respondent opined that all the findings of the trial court were not perverse but deductible and borne out of the accepted evidence on record.

Going on further, it was submitted in favour of the respondent that there was overwhelming evidence which established that the 2nd appellant offered gratification of N10,000 in the first instance and later the sum of N20,000 to PW4, a public officer. Reference was made to the testimony of PW4 at page 271, lines 33 to 35 and page 272, lines 5 to 9 of the record of proceedings. The allegation that the charges against the appellants in this regard were fabricated is baseless and unfounded.

Finally, the learned counsel for the Respondent submitted that having regard to the totality of the evidence adduced at the trial and the circumstances of this case, the prosecution had proved the essential elements of the offences of criminal conspiracy and official corruption against the appellants. Consequently, the prosecution had proved the case against the appellants beyond reasonable doubt as stipulated under section 138 of the Evidence Act. Accordingly, the findings of the trial court convicting the Appellants were not perverse and even if they were, no miscarriage of justice was occasioned to the appellants that is capable of disturbing the judgment of the trial court.

Ascription of probative value to the evidence before the court is pre-eminently that of the trial court who saw and heard the witnesses. An appellate court will not lightly interfere with same unless for compelling reasons.

(1) Ebba v. Ogodo (1984) 1 SC 372; I SCNLR 372

(2) Ogbechie v. Omochie (1988) 1 NWLR (Pt. 70) Pg 370

(3) Omoregbe v. Edo (1971) 1 All NLR p. 282; and F

(4) Ayua v. Adasu (1992) 3 NWLR (Pt. 231) p. 598

Such compelling reasons are as follows:

(a) If the finding is perverse and cannot reasonably be supported having regard to the evidence or

(b) If the finding is an interference from established facts so that an appellate court is in a vantage a position as the trial court to draw its own conclusions or

(c) If the trial court has applied wrong principles of law or

(d) When the decision of the trial court has occasioned a miscarriage of justice.

A decision is perverse where it is persistent in error, different from what is reasonable or required. Where the Judge took into account matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious.

(1) Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) p. 36

(2) Nwosu v. Board of Customs & Excise (1988) 5 NWLR (Pt. 93) at p. 225;

(3) Egba v. Appah (2005) 10 NWLR (Pt. 934) p. 464; and

(4) Oju L. G. v. INEC (2007) 14NWLR (Pt. 1054) p. 242.

Where the evaluation or findings of the trial court as in the instant case were perverse not having been borne out of the evidence adduced before it, a miscarriage of justice is occasioned.

The effect of a miscarriage of justice is the nullification of the decision reached by the trial Court. See the cases of:

(1) Oyedeji v. Akinyele (2002) 3 NWLR (Pt. 755) p. 586 and

(2) Irolo v. Uka (2002) 14 NWLR (Pt. 786) p. 195.

Under issues one and two, I have already identified and dealt exhaustively with the evidence adduced at trial by the prosecution, the findings and conclusions of the learned trial Judge which I am not totally at one with as can be gleaned from the printed record of proceedings in the instant case. I have also considered the points of contentions of both learned counsel in this issue under issues one and two above. All the issues are indeed contiguous. I therefore do not want to be labour the points. Suffice it for me to conclude that I am unable to find anything on the record which suggests positively that the Appellants were rightly convicted as charged. From the record, it is glaring that the learned trial Judge in his judgment took into account matters which he ought not to have taken into account, shut his eyes to the obvious and drew wrong inferences from adduced evidence.

This court has a duty to interfere with the findings of the trial court in the instant case as the conclusions reached by it were perverse, thereby occasioning a miscarriage of justice to the appellants. Consequently, issue three is also resolved in favour of the appellants.

As I conclude this judgment, I wish to observe that the ICPC Act is contiguous to the provisions of section 15(5) of the 1999 Constitution which I hereunder reproduce as follows:

“The State shall abolish all corrupt practices and abuse of power.

It was the passionate bid to give a full backing to the above stated provisions of section 15(5) of the 1999 Constitution that the Act was promulgated. This passion was succinctly captured in the words of my Lord Uwaifo, JSC (Rtd) in the case of:

A.-G., Ondo State v. A.-G, Fed. (2002) 9 NWLR (Pt. 772) p. 222 at p. 398 paras. C – E

“…We are faced with a desire to abolish all corrupt practices and abuse of power. Very gory details, perhaps with some measure of cynicism, of corrupt practices involving Nigerians and of the perception in which Nigeria is held in the international community on matters of corruption have been recorded. Our image in that regard, as said by Chief Babalola, is on the level of a pariah status …. ”

However, it should be kept in sight that the entire State of Nigeria is based on the principles of democracy and social justice under the provisions of Section 14(1) of the 1999 Constitution. Therefore, these basic constitutional principles cannot be sacrificed on the altar of the intendment of the ICPC Act or any other statute for that matter, no matter how noble or novel. The reason is that under our criminal jurisprudence, the purpose of prosecution amongst others, is to punish an accused person for an offence committed. The essence of doing substantial justice by the Courts is to search out and discover the truth in all matters before them. This is the only proper way true meaning can be given to the life of the society in line with the laws promulgated to regulate its affairs in all ramifications. I stop here and refrain from passing any comment about the processes leading to and the trial, the subject matter of the present appeal. In the result, this appeal succeeds. It is accordingly allowed.

The judgment of the trial court delivered on 17/3/06 is hereby set aside. The conviction and the sentence of the appellants are hereby quashed.

The appellants are accordingly discharged and acquitted.

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Other Citations: (2008)LCN/2647(CA)