Professor Adenike Grange V. Federal Republic Of Nigeria & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
UWANI ABBA-AJI, J.C.A.
This appeal is against the Ruling of the High Court of the Federal Capital Territory, Abuja, presided over by Hon. Justice Salisu Garba in Charge No: FCT/HC/CR/48/2008 delivered on the 31st July, 2008, wherein the court dismissed the application to quash the charges against the Appellant and the other accused persons.
The Appellant and the 2nd – 11th Respondents were arraigned on 5th April, 2008 on 54 counts charge of conspiracy to commit criminal breach of trust, dishonestly receiving money contrary to Sections 97, 315 and 317 of the Penal Code. The charges arose from the large scale fraud in the Federal Ministry of Health in December, 2007. The Appellant was charged with counts 1,2,3,4,5,6,7,8,9,10,11,12,13,39 and 55 which counts relate to the following offences:-
1) Counts 1 and 55. Conspiracy to do an illegal act.
2) Counts 2,3,4,5,6,7,8,9,10,11,12,13 criminal breach of trust.
3) Count 39. Dishonestly receiving money belonging to the Federal Government.
The Appellant by a motion on notice dated 9th April, 2008, prayed for an Order quashing the indictment contained in the case of all the counts/charges against her and to discharge her on the following grounds:-
- The offence(s) alleged against the Accused/Applicant is (are) not disclosed by the statement of witnesses list by the prosecution and proof of evidence attached to the charge which formed part of the record of court in this case.
- No offence committed has been disclosed by the proof of evidence before this Honourable Court against the Accused/Applicant.
- The proof evidence and the statement of witnesses do not disclose any prima facie case against the Accused/Applicant.
In fact all the Accused persons except the 3rd Respondent herein filed similar applications to quash the charges against them. The learned trial judge considered all the applications together and in a considered ruling delivered on the 31st July, 2008 dismissed all the applications.
The Appellant being dissatisfied with the said Ruling has appealed to this court vide a Notice of Appeal filed on the 21st October, 2008 on four (4) grounds of appeal. The grounds of appeal, shorn of their particulars are hereby reproduced:-
Ground 1
The learned trial judge erred in law in failing to consider the Appellant’s application to quash the charges against the Accused/Appellant separately and distinctively rather than combining it with all the other five applications filed by ten other applicants and delivering the same ruling when the circumstances are different.
Ground 2
The trial court erred in law when it held to the effect that the proof of evidence disclosed a prima facie against the Appellant to warrant her standing trial.
Ground 3
The learned trial judge erred in law when he held that:
“It is trite that where the charge on which an accused person is brought to court is defective an objection must be raised to the fact before pleading.
See OBAKPOLOR VS THE STATE (1991) 1 NWLR (PT.165) PG.113. In the circumstance, I consider the applications filed by the 1st, 2nd, 4th – 12th Accused persons to quash the charges are either belated or incompetent.”
Ground 4
The learned trial judge was in error in holding that there is a prima facie case against the Appellant when he stated and relied on UBANATU VS C.O.P. (2000) 2 NWLR (PT.643) PG.115 RATIO 3 AT PG.117 as follows:
“A prima facie case means a ground for proceedings.
In other words, that something has been produced to make it worthwhile to continue with proceedings.
But it is not the same as proof which find whether the accused is guilty or not. The evidence discloses a prima facie case when it is such that it uncontradicted and it is believed will be sufficient to prove the case against that accused.”
This said error has occasioned a miscarriage of justice.
In the Appellant’s brief of argument settled by Oladele Gbadeyan, Esq., three issues were formulated for determination of the appeal; namely:-
I) Whether the learned trial judge dispassionately considered the Appellant’s application in delivering this ruling, having lumped the Appellant’s motion together with those of the other accused persons and if not, whether the failure to do so occasioned a miscarriage of justice.
II) Whether the learned trial judge was right when he held that the proof of evidence disclosed a prima facie case against the Appellant to warrant her standing trial.
III) Whether the learned trial judge was right in holding that the Appellant’s application to quash the charge having being filed after taking plea is belated and incompetent in law.
In the 1st Respondent brief of argument, settled by Kemi Pinheiro, SAN, the learned senior counsel adopted the three issues for determination as formulated by the Appellant’s counsel.
At the hearing of the appeal on the 8th October, 2009, learned counsel for the Appellant, Dr. Alex A. Izinyon, SAN, adopted and relied on the Appellant’s brief of argument dated and filed on the 13th March, 2009, and the Appellant’s reply brief on points of law dated and filed on the 20th May, 2009 as representing their argument in the appeal.
Learned senior counsel submitted that they have also filed additional authority on the 1st June, 2009, the case of ARCHITECT GABRIEL ADUKU VS FEDERAL REPUBLIC OF NIGERIA, unreported Appeal No: CA/A/265C/2008 delivered on the 24th March, 2009 and urged the court not to depart from the case as the facts and circumstances of that case fit squarely into the facts and circumstances of this case. He urged the court to allow the appeal and quash the indictment before the lower court.
Okewoye, Esq., for the 1st Respondent adopted and relied on the 1st Respondent’s brief of argument dated and filed on the 22nd April, 2009 as their argument in the appeal. He submitted that with regards to issues one and three for determination, he urged the court not to depart from its decision in the unreported case of ARCHITECT GABRIEL ADUKU VS FEDERAL REPUBLIC OF NIGERIA (supra). With regard to issue two, it is submitted that there is an established link between the Appellant and the offences charged and referred to paragraph 2.14 of the 1st Respondent’s brief and submitted that it is the Appellant that signed all the big contracts. He urged the court to dismiss the appeal.
In his response, the learned senior counsel for the Appellant submitted that the argument of counsel cannot take the place of evidence and submitted that the alleged inferences are from counsel as there is no evidence attached. It is submitted that the heavy weather made from paragraph 2.13 of the 1st Respondent’s brief is not supported by the proof of evidence and there was no evidence attached. He urged the court to follow its decision in ARCHITECT GABRIELA DUKU V. FEDERAL REPUBLIC OF NIGERIA & 11 ors and to allow the appeal.
Learned counsel for the 5th Respondent, O. Ogundipe, Esq., and S.T. Ologunorisa, Esq., for the 7th, 8th , 9th and 11th Respondents did not file any brief and were therefore not heard.
Issue One
Whether the learned trial judge dispassionately considered the Appellant’s application in delivering his ruling, having lumped the Appellant’s motion together with those of the other accused persons and if not, whether the failure to do so occasioned a miscarriage of justice.
In arguing this issue, learned senior counsel for the Appellant, Dr. Izinyon, SAN, submitted that the learned trial judge was in error to have lumped the charges against the various Respondents along with the Appellant and giving a composite ruling on them. It is his view that the accused persons were charged with both similar and different counts of the charge, and the Appellant’s application before the trial judge related only to 14 counts which the Appellant was charged with and that she has no business with the other counts which affected the other accused persons. It is submitted that the learned trial judge in deciding the applications lumped all of them together and distilled only two issues for determination namely;
i. Whether prima Facie case has been established against the accused persons and
ii. Whether the application is not belated in view of the Fact that the plea of the accused persons had been taken before the accused raised the objection.
It is submitted that the contention of the Appellant in her application to quash the charge was that the proof of evidence did not disclose a prima facie case against her and that there is nothing linking her to the alleged crimes in the statement of witnesses the 1st Respondent intends to call at the trial. The following cases were cited in support; IKOMI VS. THE STATE (1986) 3 NWLR PART 28 AT PAGE 340; YAV VS. THE STATE (2005) 5 NWLR (PT 917)-1 at 22; ABACHA VS. THE STATE (2002) 11 NWLR PART 779 PAGE 437 and UHWOVORIOLE VS. FRN (2003) 2 NWLR PART 803 PAGE 176 AT 190. It is thus submitted that the learned trial judge merely made a sweeping general conclusion that, from the statement of witnesses and the proof of evidence there seems to be an alleged fraud committed by the 1st – 11th accused persons involving the fund of the Federal Ministry of Health in December, 2007,” it is submitted that the trial judge did not consider each of the applications on the merit that he has not taken into consideration the evidence before it and a decision given on each of the application.
Learned senior counsel for the Appellant, considered the statements of the witnesses intended to be called by the 1st Respondent as it relates to the Appellant and submitted that none of these witnesses have sufficiently linked the Appellant to the alleged crime purportedly committed, to have warranted the trial judge putting the Appellant through the rigours of trial. It is further submitted that the procedural irregularity in failing to give a considered ruling on each application is so grave as same has occasioned a miscarriage of justice, citing in support the case of UBANATU VS C.O.P. (2000) 2 NWLR (PT.643) PG.115 RATIO 3 AT PG.117. It is thus submitted that the learned trial judge has not shown a dispassionate consideration of the Appellant’s application and the court was urged to so hold and to allow the appeal and set aside the said ruling.
Learned senior counsel for the 1st Respondent, Pinheiro, SAN, considered the Appellant’s issues one and three together and submitted that the same calamity has befallen the two issues in view of this court’s decision (Coram – Rabiu Danlami Muhammad, OFR, PJCA, Jimi Olukayode Bada, JCA, and Ayobode Olujimi Lokulo-Sodipe, JCA) in A/A/265C/2008 Between ARCHITECT GABRIEL ADUKU V. FEDERAL REPUBLIC OF NIGERIA & 11 ors delivered on the 24th March, 2009.
It is submitted that the Appellant herein and the Appellant in CA/A/265C/08 were co-accused on the same indictment as the 1st and 2nd Accused persons in charge No: FCT/4C/CR/48/2008. That they were also co-applicants seeking the quashing of the indictments which was refused by the lower court on the 31st July, 2008, and being aggrieved had filed respective appeals against that decision. It is also submitted that, that decision is the basis of this appeal and that issues I and III in this appeal are in pari materia with the issues I and II of the Aduku appeal. It is thus submitted that this court is bound by its earlier decision arising from the same set of facts that arose from the lower court. The following cases were referred to; HARUNA V. MODIBBO (2004) 16 NWLR (PT.900) 487 at 538; USMAN V. UMARU (1992) 7 NWLR (PT.254) 377 at 399; OLUFOLA V. UNICORN (2004) 18 NWLR (PT.905) 416 at 467; and UBA V. TAAN (1993) 4 NWLR (PT.287) 368.
Learned senior counsel also referred to pages 9-11 and 14 of this court’s decision in CA/A/265C/08 (supra), per Bada, JCA and submitted that the court having so held that the case of OYEDIRAN V. THE REPUBLIC (SUPRA) is not relevant to the facts of this case, and it could not thus be said that since only two issues were distilled from the different applications that the learned trial judge did not consider the case of the Appellant separately.
On issue III for determination, learned senior counsel referred to the finding of the court in ADUKU V. FEDERAL REPUBLIC OF NIGERIA (supra) at page 14 that it was wrong for the learned trial judge to have relied on the case of OBAKPOLOR V. THE STATE (supra) in holding that the application of the Appellant to quash the charge is incompetent. It is therefore submitted that the court having so held, there is no reason to depart from its earlier decision and urged the court to so hold.
Let me in this regard consider Appellant’s Issue III for determination which is to the effect that:-
Issue Three
Whether the learned trial judge was right in holding that the Appellant’s application to quash the charge having being filed after taking plea is belated and incompetent in law.
In arguing this issue, learned senior counsel for the Appellant submitted that the learned trial judge erred in law when he held that the objection to the charge having been raised by the Appellant after her plea was taken was belated and incompetent in law. The learned trial judge relied on the case of OBAKPOLOR V. THE STATE (1991) 1 NWLR (PT.165) PG.113 and it is submitted that the reliance placed on this case is erroneous for two reasons. Firstly that the case was based on Section 167 of the Criminal Procedure Act and not any of the provisions of the Criminal Procedure Code applicable to the High Court of the Federal Capital Territory where this case was tried; and secondly that an application to quash an information on a charge is not a complaint against any defect or form of a charge or any irregularity manifest on its face, that is a complaint against the substance of the charge. That OBAKPOLOR’s case was wrongly applied. The following cases were also referred to; FEDERAL REPUBLIC OF NIGERIA V. OBEGOLU(2006) 10 NWLR (PT.1010) 100 at 277; CALABAR EASTY CO-OPERATIVE & ORS V. IKOT (1999) 14 NWLR (PT.638) 225 at 241-242; and A.G. ANAMBRA STATE V. OKEKE (2002) 12 NWLR (PT.782) 575.
It is further submitted that the Criminal Procedure Code has no section comparative to Section 167 of the Criminal Procedure Act, and the reference made by the trial court to Section 187 of the Criminal Procedure code which tend to support that it was in pari materia with Section 167 of the Criminal Procedure Act is erroneous. The court was urged to allow the appeal on this issue.
It is true as submitted by the learned senior counsel for the 1st Respondent that the Appellant herein and the Appellant in CA/A/265C/08 Architect Gabriel Aduku were co-accused on the same indictment as 1st and 2nd Accused persons in charge No: FCT/4C/CR/48/2008. They were also co-applicants seeking the quashing of the indictments which was refused by the lower court on the 31st July, 2008 and being aggrieved had filed respective appeals against that decision which is the basis of this appeal. The appeal of Architect Gabriel Aduku was heard and determined by this Court in appeal No: CA/A/265C/08 and judgment delivered on the 24th March, 2009. It is therefore contended by the learned senior counsel for the 1st Respondent that issues I and III in the present appeal are in pari materia with issues I and II in Aduku’s appeal and same having being already resolved by this Court in its judgment delivered on the 24th March, 2009, this court is bound by its earlier decision arising from the same set of facts that arose from the lower court and thus these two issues should be considered as settled.
In Appeal No: CA/A/265C/08, Aduku v. FRN (supra), the Appellant therein also formulated three issues for the determination of the appeal. Issues I and II which it is contended are in pari material with issues I and III in this appeal are hereby reproduced;-
(1) Whether the Learned trial Judge by lumping up and determining the Appellant’s motion together with the motions filed by the other accused persons adequately considered the legal grounds raised by the Appellant and if not whether the failure to do so occasioned a miscarriage of Justice.
(2) Whether the Learned trial Judge was right when he held that the Appellant by taking his plea before filing the motion to quash the charge, the motion was belated and incompetent in law.
This court, per Bada, JCA, delivering the lead judgment held as follows:-
“In this appeal under consideration, the application of the learned Counsel for the Appellant was that the procedure followed by the learned trial Judge in treating the various applications as one and the same and formulating two joint issues for determination from seven different applications is wrong.
I have to state straightaway that the case of Oyediran v. The Republic (supra) relied upon by Learned Senior Counsel for the Appellant is not relevant because the statement of law attributed to G.B.A. Coker JSC (of blessed memory) will only be applicable where there has been a full trial and final Judgment is to be delivered. The caution handed down is that trial Courts must enter separate and distinct verdicts in respect of several counts.
The facts in Oyediran’s case are different; it can only be a binding precedent where the facts in the case are on all fours with the present case under consideration.
See – Green v. Green (supra);
Odua Invest Co. Ltd v. Talabi (supra).
The Ruling of the trial Court is contained on Pages 730 to 756 of Volume 2 of the Record of Appeal. The analysis of each of the 7 applications by the learned trial Judge is contained on pages 731 to 745 of the Record of appeal.
The learned trial Judge at Page753 concluded thus:-
“I have carefully scrutinized the documents filed in the case at hand especially the Amended charge sheet annexures and also looking at the grounds of the objections alongside the arguments of the Learned Counsel on both sides ……… from the statement of the witnesses and the proof of evidence, there seems to be an alleged fraud committed by the 1st to 11th accused persons involving the funds of the Federal Ministry of Health In December ….. It is equally alleged that the sum involved in the alleged fraud was shared by the accused persons and other staff of the Federal Ministry of Health …..
In the circumstance and based on the proof of evidence and witness statement and various documents attached to the charge in support of the charge and the decision in the case of Abacha v. The State I am of the view that there seem to be a prima facie case established against the accused persons …….”
Part of the materials reviewed by the learned trial Judge before arriving at the above conclusion are the statement of one Dr. Oyedepo at pages 140 – 159 particularly at page 158 of the record in volume 1. He also reviewed the statement of the Appellant on pages 132 – 133 of the Record of Appeal and that of one E. Donald at pages 168 – 179 of the Record of Appeal.
In view of the foregoing, and since I have earlier held that the case of Oyediran v. The Republic (supra) is not relevant therefore it could not be said that since only two issues were distilled from the different applications that the learned trial Judge did not consider the case of the Appellant separately”.
Also, in respect to issue II, the court held at page 14 of the judgment as follows:-
“In view of the foregoing it is my view that the trial Judge was wrong to have relied on the case of Obakpolor v. The State (Supra) in holding that the application of the Appellant to quash the charge is incompetent.
In my humble view since there is no equivalent of Section 167 of the Criminal Procedure Act in the Criminal Procedure Code therefore, it means that any objection to a charge or a formal defect on the face thereof could be taken even after the charge has been read over to the accused and his plea taken in the states in which the Criminal Procedure Code operates.”
It is contended by the learned senior counsel for the 1st respondent that, there is no reason for this court to depart from this decision. There is no response to this agitation from the learned senior counsel for the Appellant. It is true that the same set of facts arose from this case and Aduku’s case (supra). They were all co-accused persons and Applicants respectively in an application to quash the charges against them before the trial court. These two issues having been settled by this court in Aduku’s case (supra), this court is bound by its own decision and no reason or circumstances exist to depart from the said decision. See HARUNA VS MODISSO (2004) 16 NWLR (PT.900) 487 at 538; USMAN VS UMARU (1992) 7 NWLR (PT.254) 377 at 399; OLUFOLA VS UNICORN (2004) 18 NWLR (PT.905) 416 at 467; and UBA VS TAAN (1993) 4 NWLR (PT.287) 368. I therefore hold that these two issues have already been resolved by this court in favour of the Respondent against the Appellant and I hold the same position in this appeal.
Issue II
Whether the learned trial judge was right when he held that the proof of evidence disclosed a prima facie case against the Appellant to warrant her standing trial.
In arguing this issue, learned senior counsel for the Appellant submitted that the learned trial judge was in error to have held that the proof of evidence discloses a prima facie case against the Appellant. It is submitted that in an application to quash charge against an accused person, the court before whom such an application is made must be guided by the following laid down principles:-
1) The court must confine itself to the proof of evidence and the witnesses statements attached thereto to show whether a prima facie case has been disclosed. That where the proof of evidence does not disclose a prima facie case, the court will quash the charge against the accused person, citing ABACHA VS THE STATE (supra) and
UHWOVORIOLE VS.FRN (supra)
2) That the proof of evidence must sufficiently link the accused to the offence although it need not be a conclusive proof of the accused persons guilt which is a matter to be determine at the substantive trial, citing ABACHA V.THE STATE (supra)
Learned counsel submitted that where there is no sufficient linkage of the accused person to the offence allegedly committed, the court would be on good ground to quash the charge against the accused person, citing also the cases of UBANATU VS C.O.P. (2000) 2 NWLR (PT.643) PG.115 RATION 3 AT PG.117 and ABACHA VS THE STATE (supra) at page 439. It is thus submitted that had the trial judge applied these principles in considering the application to quash the charges against the Appellant that he would have arrived at a different conclusion as there was no sufficient evidence linking the accused to the offence. Learned senior counsel analysed the charges against the Appellant, the ingredients of the offences charged vis-‘a-vis the proof of evidence and statements of witnesses and submitted that the essential ingredients of the offences charged have not been established. It is also submitted with regard to counts 1 and 55 which deal with the conspiracy to do an illegal act, that the 1st Respondent has not place any materials before the court to show that the Appellant was in agreement with the other accused persons to do an illegal act or cause it to be done in furtherance of the agreement and that each of the parties individually participated in the conspiracy. It is therefore the view of learned senior counsel that there is no sufficient evidence to link the Appellant with the conspiracy agreement and therefore there was no act done by the Appellant in furtherance of any conspiracy.
It is also submitted that of all the 17 witnesses whose statement were attached to the charge, that, it is only the statements of Ambali Abdulraheem, M.S. Hamid, Dr. Emmanuel Alhassan, and Busari K.O. are relevant with respect to the charge against the Appellant, and concluded that from the summary of evidence, the charge against the Appellant does not disclose a prima facie case to warrant the Appellant going through the rigours of trial. It is argued that the statement of the 6th Respondent contained at pages 168-179 of the records of appeal, volume I stated that the Director of Admin, Dr. H.B. Oyedepo shared the money among the Minister, Minister of State among others did not state if he was the one that shared the proceed or was there when same was shared. It is thus contended that the proof of evidence cannot in any way be said to support the charge against the Appellant.
Learned senior counsel also argued that the statements of anyone not called as a witness is irrelevant and ought not to be relied and referred to the statements of 40 people attached by the 1st Respondent and not to be called as witnesses to the trial and submitted that the statements are irrelevant in the consideration of whether a prima facie case has been established against the Appellant. It is also submitted that in the absence of evidence of the meeting of the minds among the accused persons, an offence of conspiracy cannot be established and that there is no scintilla of averment to suggest any such agreement between the Appellant and 2nd, 3rd, 4th and 5th Accused persons. It is the view of the learned senior counsel that in the absence of such evidence, the fact that the Appellant approved the job orders alone cannot on its own be sufficient to establish a prima facie case against her. It is also submitted that the statement of the Appellant at page 131 of the records of appeal to the effect that she merely approved the vouchers, memos, cheques and job orders based on the recommendations of the 3rd Respondent, the Permanent Secretary of the Ministry and the statement of the 12th Respondent, Senator Iyabo Obasanjo that the Appellant called her and informed her that the money to sponsor the retreat of the Senate Committee is ready cannot by any stretch of imagination be held to have established conspiracy against the Appellant.
On counts 2-13 which deal with criminal breach of trust punishable under Section 315 of the Penal Code. Learned counsel referred to the ingredients of the offence as contained in the Penal Code notes and submitted that from the proof of evidence, witnesses’ statements and documents attached to the charge there is no direction of law alleged to have been breached and the ingredients of the offence have not been established. Learned senior counsel reproduced a precise of the evidence of these witnesses, namely; Faniyi J.B., cashier in the Accounts Department, Ibrahim Abdullahi Mohammed, a cash payment officer, Linus Akor, a Personal Assistant to the Minister of State, Edobor I.E.F., the Secretary of the Senate Committee on Health, Rita Obong, an employee of Imam Clean and Buy Services, Sadiq Rotimi, Director HGR Ltd, Obinna Durunguma, Secretary/Legal Adviser of ITEX Furniture Ltd, Albert Uko, a Legal Practitioner, Akanbi Gbadegesin Ayo, and Abdulrahaman Ambali, the Chief Accountant in the Ministry and submitted that the proof of evidence and the statements of witnesses attached to the charge together with the documents do not disclose all the essential elements of the offence of criminal breach of trust, as the prosecution did not place before the trial judge sufficient evidence to link the Appellant to warrant the charge against the Appellant to proceed to trial.
It is also submitted that the proof of evidence, statements of witnesses and documents attached to the charge did not show on the face value that the Appellant acted dishonestly. Learned counsel referred to Black’s Law Dictionary, Eighth Edition, by Bryan A. Garner where a dishonest act is defined as a ‘fraudulent act’, and went on to consider what a ‘fraudulent act’ is at page 687 as “conduct involving bad faith, dishonesty, a lack of integrity, or moral turpitude” and submitted that the proof of evidence does not show at all that Appellant’s conduct were in bad faith or lacked integrity.
On count 39 which deals with the offence of receiving money belonging to the Federal Government of Nigeria with the knowledge of same being proceeds of criminal breach of trust, punishable under Section 317 of the penal code, Learned senior counsel referred to the ingredients of the offence as contained in the notes to the penal code and submitted that the proof of evidence, statements of the prosecution witnesses and the documents attached to the charge failed to show how the Appellant received the stolen property/money of the Federal Government of Nigeria or how she was linked to the said offence whatsoever. It is also argued that of all the 17 prosecution witnesses, it is only the statement of the 4th Respondent, Dr. H.B. Oyedepo that made reference to the fact that N10 million was shared to the Appellant and that the money was given to her Personal Assistant, and none of her Personal Assistant ever conceded having received any amount of money from the 4th Respondent or anyone on her behalf. It is also submitted that there is nothing before the trial judge to show that such money was traced by the investigation to the Personal Assistants which would have effectively linked the Appellant to the offence for which her explanation would be required. Learned counsel referred to the statement of the 4th Accused person, particularly the one made on the 10th March, 2008 that he distributed N10 million to the Appellant among other people, the statement of the 12th Accused at page 1021 of the records of appeal wherein she stated that she got a call from the Minister of Health that monies from Ministry to sponsor the retreat and seminar of the Senate Committee on Health is ready, and submitted these pieces of evidence is not sufficient to put the Appellant on trial.
The learned senior counsel referred to Section 27(1) (2) & (3) of the Evidence Act with respect to the status of a co-accused and submitted that statements of co-accused which tend to draw inference of admission as that of the 4th Respondent are only relevant as against the 4th Respondent except as provided under sub-section (3) where the co-accused must adopt such statement made in his presence either by words or conduct and which it is submitted is not so in the instant case and that the statement was not made in her presence. The cases of SOLOLA V. STATE (2005) 2 NWLR (PT.937) 460 at 484; and DIBIE V. STATE (2004) 14 NWLR (pT.893) 257 at 281- 282. It is also submitted that for evidence of a co-accused to form the basis of trial and conviction of a co-accused, such evidence must be so clear and convincingly pointing to the irresistible conclusion of its troth, citing the case of OZAKI V. THE STATE (1990) 1 ALL NLR PAGE 94 at 114 – 116. It is therefore submitted that these statements cannot be said to provide sufficient materials to link the Appellant to the commission of the alleged crime and that no prima facie case has been established to link the Appellant with the offences charged. The case of ABACHA VS THE STATE (supra) was referred and submitted that there was no adequate or sufficient evidence from the prosecution to link the Appellant to the crimes alleged in the charge and urged the court to so hold and quash the charge against her.
Responding, learned senior counsel for the 1st Respondent submitted that the Appellant’s contention that no sufficient evidence exist in the indictment to connect or create a nexus between the Appellant and the offences charged and therefore the lower court was in gross error to have failed to quash the indictment is not only fallacious but is not supported by the materials before the court. Learned senior counsel referred to paragraphs 4.20-4.23 where the Appellant contended that statements of 43 persons not being listed as witnesses are irrelevant for consideration as to whether a prima facie is established against the Appellant, invited the court to its judgment in CA/A/265C/08 unreported, between Aduku v. FRN (supra) delivered on the 24th March, 2009 on the point wherein the court held that it would not be correct to say that the statements of the 43 persons who are not listed as witnesses in the proof of evidence are worthless. It is submitted that the court always considers in totality the statements of relevant persons whether listed as witnesses or not. He urged the court to so hold.
On the substance of the charge against the Appellant, it is submitted that the allegation against the Appellant arose from a large scale fraud in the Federal Ministry of Health, where the Appellant conspired actively and was in fact a beneficiary of the funds stolen and that she was a major signatory to all the vouchers, memos and cheques that were used to perpetrate the fraud. That the Appellant received N10 million in cash in early January and did not return same until the 28th February, 2009 over 40 days when EFCC had called for its return. It is also submitted that the call she put through to the 12st Respondent Senator notifying her that “the funds for the Ghana trip” was ready and couple with the fact that no record exists that the Appellant queried the series of contracts awards seeking her approval towards the end of the year when the Appellant was well aware of appropriate Federal Government directives to refund unspent funds, it is submitted are all inferences to hatch a common goal. It is contended that the Appellant was the alter ego of her Ministry, and learned counsel referred to the statement of the following witnesses to show that the approvals granted on the respective memos and vouchers in relation to counts 1-13 and counts 39 and 52. The witnesses are; M.K. Adelekan, Assistant Chief Accountant in the Ministry, Abdulrahaman Ambali, the Chief Accountant; Aliyu Alh Buhari, Assistant Director supplies, Ojo Ezekiel, Chief Store Officer, Fausat Ladan Owolabi, a clerk in the Accounts Section; Obinna Durunguma, Secretary/Legal Adviser of ITEX Furniture Ltd and Ayeni O. Habeeb, a Principal Store Officer II. It is also submitted that even though the Appellant denied all the allegations but she admitted approving all the contracts without reservation on the recommendation of the Permanent Secretary. It is thus submitted that the Appellant has been sufficiently linked with the offence charged and the court was urged to hold that the proofs of evidence require an explanation from the Appellant at the trial.
With respect to the evidence of co-accused which links the Appellant to the offences charge, it is submitted that at this state of the proceeding, the court is not concerned with admissibility of any statements as the proceedings are not at the stage of trial. That the admissibility or otherwise of these co-accused statements can only be tested at the time when they were sought to be tendered at trial and not before. He cited Section 27(3) of the Evidence Act and submitted that the sub-section is only applicable “at trial when the evidence is given” citing the following cases; R V. AKINPELU AJARU & ORS (1936) 3 WACA 3; EUBU OMWAN VS POLICE (1961) NMLR 251; R V. ENABOSI (1966) 2 ALL NLR 116; AFOLABI V. POLICE (1961) ALL NLR 654; and OZAKI V. THE STATE (1990) 1 ALL NLR 122. It is therefore submitted that for the Appellant to invoke the operation of Section 27(3) she must show that there has been a trial, evidence of the nature prohibited by Section 27(3) has been led and adduced and a fortiori she has in fact been convicted based on such prohibited evidence. It is submitted that objection and attack on the character and nature of the co-accused statement at the stage of quashing an indictment is premature and untenable and the court was urged to so hold. That the case SOLOLA V. STATE (supra) relied upon by the Appellant is irrelevant for consideration because the Appellant in that case had in fact been convicted by the trial court on the evidence and statement of a co-accused and the Appellate Court quite rightly invoked the provisions of Section 27(3) and quash the conviction on appeal. It is argued that, that is not the position in the instant appeal. It is also submitted that the trial court was on a firm ground when it held that a prima facie case has been made out against the Appellant and urged the court to affirm the decision and to dismiss the appeal.
In his reply brief, learned senior counsel for the Appellant submitted that the proof of evidence does not support the submission of the learned senior counsel for the 1st Respondent that the Appellant received the sum of N10 million and only returned it after the EFCC investigation. It is submitted that the statements of Dr. Alero Roberts and Sisi Amu, both personal Assistants to the Appellant at the material time reveal the contrary position in that none of them received or return any money on behalf of the Appellant. It is also submitted that the statement of the 12th Respondent, Senator Iyabo Obasanjo cannot be a basis for proceeding against the Appellant as same is not in any way incriminating none convincingly pointing to the Appellant’s guilt. Learned senior counsel referred to Section 27(3) of the Evidence Act and the cases of SOLOLA V. STATE (2005) 2 NWLR (PT.937) 460 at 484; and DIBIE V. STATE (2004) 14 NWLR (PT.893) 257 at 281-282, and urged the court to discountenance the 1st Respondent submission on this issue. It is also submitted that the 1st Respondent submissions with respect to the contract awards amount to counsel given evidence from the bar and that address of counsel however well written cannot take the place of evidence, citing the cases of AKIBU VS. RACE AUTO SUPPLY LTD (2000) 4 NWLR (PT. 686) 190 at 207; ANTHONY V. GOVERNOR OF LAGOS STATE (2003) 10 NWLR (PT. 828) 288 at. On the issue of sentiments in judicial proceedings, learned Senior Counsel referred to the cases of MBACHU V. A.I.R.B.D.A. (2006) 14 NWLR (PT 1000) 691 AT 712; ALAMIEYESEIGHA V. FRN (2006) 16 NWLR (PT.1004) 1 at 102; ACB PLC V. EMOSTRADE LTD (2002) 8 NWLR (PT. 770) 501 at 517; AGBI VS OGBEH (2006) 11 NWLR (PT. 990) 65 at 135; BCC PLC V. SKY INSP. NIG. LTD (2002) 17 NWLR (PT.795) 86 at 116. The court was urged to discountenance this submission.
On the evidence of co-accused it is submitted that the submission of the 1st Respondent is misconceived. It is submitted that in a criminal proceeding as the instant one, trial of the accused commences upon the arrangement and taking of the accused person’s plea. He cited the cases of EFFIOM VS. STATE (1995) 1 NWLR (PT. 373) 507 at 582 – 583; ADIO VS. STATE (1985) 3 NWLR (PT. 31) 714; KAJUBO VS. THE STATE (1988) 1 NWLR (PT. 73) 721; and OGUNYE VS. THE STATE (1999) 5 NWLR (PT. 604) 548.
Learned counsel submitted that the learned senior counsel for the 1st Respondent is under a wrong assumption of law when he stated that the statement of a co-accused person could only be rejected when same is given in evidence at the point of calling witnesses. It is submitted that the said statements having formed part of the proof of evidence which the prosecutor wishes the court to peruse in deciding that a prima facie case is made out against the Appellant, same must be looked to ascertain whether these are legally admissible or not. The court was urged to discountenance this line of submission by the 1st Respondent and allow the appeal by setting aside the trial court’s decision.
The main contention of the Appellant’s argument in this issue and in fact the backbone of the appeal is that the learned trial Judge was in error to have held that the proof of evidence discloses a prima facie case against the Appellant when there was no evidence from the proofs of evidence and statements of witnesses and documents attached linking the Appellant with the offences charged. In considering an application of the nature, to quash the charges against an accused person, and in the instant case the Appellant on the ground that the proof of evidence and statements of witnesses did not disclose a prima facie case against the Appellant, the court must be guided by the following well laid dawn principles:-
- The court must confine itself to the proof of evidence and the witnesses statements attached thereto to show whether a prima facie case has been disclosed. Where the proof of evidence does not disclose a prima facie case, the court will quash the charge against the accused.
- The proof of evidence must sufficiently link the accused with the offence although it need not be a conclusive proof of the accused person’s guilt which is a matter to be determined of the substantive trial; and
- Where there is no sufficient linkage of the accused to the offence allegedly committed, the court would be on a good ground to quash the charge against the accused person. See {ABACHA V. STATE (SUPRA); UHWOVORIOLE V. FRN (SUPRA) and UBANATU V. COP (SUPRA).
In the instant appeal, the charges that relate to the Appellant are classified into three:-, namely, courts 1 and 55 dealing with conspiracy to do an illegal act; (2) courts 2 – 13 dealing with the criminal breach of trust while (3) court 39 deals with dishonestly receiving money belonging to the Federal Government of Nigeria with the knowledge of same being proceeds of criminal breach of trust.
The essential ingredients of these offences are clearly catalogued in the Appellant’s brief of argument and in the counsel’s submission, concluded that there is no sufficient evidence to link the Appellant with the conspiracy agreement and therefore no act was done by the Appellant in furtherance of any conspiracy agreement purported to have been entered into by the Appellant, breach of trust or receiving stolen property.
A careful perusal of the 17 witnesses whose statements were attached to the charge, it is only the statement of Ambali Abdulrahaman, the Chief Accountant in the Ministry, M.S. Hamid, Dr. Emmanuel Alhassan, Busari K.O. that are relevant with respect to the charge against the Appellant.
Before I come to the statement of the witnesses, in establishing whether a prima facie has been made against the Appellant or not let me comment on the statements of 43 persons attached to the information sheet whom the 1st Respondent would not be calling as witnesses. It is contented that such statements are irrelevant in the consideration of whether a prima facie case has been established against the Appellant or not. With due respect to the learned senior counsel, this statement is not correct. The correct position of the law is that a court in considering whether a prima facie case has been made out against an accused person, the court is entitled for the purpose of quashing an indictment must have regard to the entire proof of evidence attached to the charge or information. This view is supported by the pronouncement of Belgore, JSC, (as he then was) in Abacha v. State (supra) that:-
“However, in deciding whether a prima facie case exists for the accused to answer in an information for indictment, the authorizing Judge or the Judge before whom the indictment is place, must look at the proofs of evidence attached to the information in totality and not pick words out of con.
I have indicated earlier what a prima facie case is. The entire proofs of evidence, that is, statement from all relevant persons and perhaps also the suspect must be read and considered.”
Therefore, it would not be correct to say that the statements of 43 persons who are not listed as witnesses in the proof of evidence are worthless. The court always considers in totality the statements of relevant persons whether listed as witnesses or not. See the unreported case of ADUKU V. FGN (SUPRA) PER BADA, JCA.
The question that rears its head is; what is a prima facie case? A prima facie case in a criminal trial in a sense only means that there is a ground for proceeding with the trial. At that stage, whether the evidence is sufficient to ground a conviction is not the issue. When a court states that a prima facie case has been made, or that the evidence discloses a prima facie case, it means that the evidence is such that it is uncontradicted and if believed, is sufficient to prove the case against the accused. A prima facie case is not the same as proof which occurs after evidence has been adduced by both parties where at the close of the case, the court is obliged to find whether the accused is guilty of the offence charged or not. Prima facie on the other hand, indicates that there is a ground for proceeding with the trial and the expression may not aptly be used after the prosecution and the defence have all led evidence and concluded their respective case and the trial court is obliged to examine all the evidence and determine if the prosecution has or has not proved its case beyond reasonable doubt as required by law or the accused is guilty or not guilty of the offence charged. See UBANATU VS. C.O.P. (2000) 2 NWLR (PT. 643) 115; YAV V. STATE (2005) 5 NWLR (PT. 917) 1 at 22; ABACHA V. STATE (2002) 11 NWLR (PT. 779) 431 and IKOMI V. THE STATE (1986) 3 NWLR (PT. 28) 340.
Therefore, before granting consent to prefer a charge in the High Court, the Judge considering the application must be satisfied that depositions placed before him disclose an offence and that the trial would not be an abuse of process. In the instant case, the statements and proofs of evidence filed pursuant to the application before the court did not directly linked the Appellant with the offences charged. The evidence of Mr. K. Adelekan only stated that the payment vouchers for the contracts were approved by the Hon. Minister, the Permanent Secretary, the Director of Account, Assistant Director Account and Chief Accountant. See pages 932, 935 of the records of appeal. The evidence of Ambali Abdulrahman the Chief Accountant in the Ministry did not state that the Appellant was part of the meeting to share the balance of N30 million in the Ministry’s account or authorised same to be done.
The evidence of Aliyu Alh Buhari, the Assistant Director (supplies) in the Ministry did not mention the Appellant and so also the statements of Ojo Ezekiel, the Chief Store officer in the Ministry, Fausat Ladun Owolabi, a Clerk in the Account’s Section of the Ministry. She only stated how the files get to her for the preparation of voucher. So also the statements of others witnesses including Obinna Durunguma, the company Secretary/Legal Adviser of Hex Furniture Ltd and Oyeni. O. Habeeb, the principal store officer II in the Ministry. The statement of the 4th Respondent at pages 168-179 of the records of appeal, Vol.1 stated that, the Director of Admin, Dr. H.B. Oyedepo shared the money among the Minister, Minister of State among others.
In her statement, the Appellant denied all the allegations against her but admitted approving all the contracts on the recommendation of the permanent secretary. The essence of having statements attached to the charge sheet is to ex-ray on the face of the statements, the prosecution’s case against the accused person. There must be sufficient facts of the culpability of the accused person, i.e.; there must be evidence linking the accused with the offence, however remote which calls for some explanation from the accused. The evidence must meet all the essential elements of the offence. In the instant appeal therefore, there was no evidence or materials placed before the court to show that the Appellant was in agreement with the other accused persons to do an illegal act or to cause to be done an illegal act to wit commit criminal breach of trust or steal funds belonging to the Federal Government of Nigeria, and I find no such evidence linking the Appellant with the offences charged against her and therefore no prima facie case has been established justifying the proceeding of the criminal trial against the Appellant. In IKOMI V. THE STATE (supra) it was held: – “No citizen should be put to the rigours of trial in a criminal proceeding unless available evidence points prima facie to his complicity in the Commission of crime.”
In ABACHA VS THE STATE (supra) the Supreme Court reiterated this principle in the lead judgment of Belgore, JSC (as he then was) when he held as follows:-
“The court below as well as the trial court erred in finding prima facie case for the appellant to answer. At best, what is in the proofs of evidence amounts to serious suspicion that the Appellant knows more that he adverts to. Suspicion however well placed does not amount to a prima facie evidence; more facts than are now in the printed record will be needed to nail the Appellant to his being required to explain. The prosecution must be wary of being accused of persecution rather than prosecution.” See UHWDVDRIOLE V. FRN (2003) 2 NWLR (PT 803) 176.
I am bound by this statement and the principles involved therein and I adopt them and apply same to this appeal.
What is in the proof of evidence amounts also in my view to serious suspicion that the Appellant knows more when she continued to sign those series of contract at the end of the year. It is trite that suspicion however well placed does not amount to a prima facie evidence. There is no sufficient evidence linking the Appellant with the offences charged and therefore no prima facie case has been disclosed. I therefore so hold.
The next issue is whether statements made by the other accused persons are binding on another co-accused. Of all the statements of witnesses, it is the statements made by the 4th-6th and 12th Accused persons that mentioned the Appellant. Learned senior counsel for the Appellant contended that the evidence of co-accused which links the Appellant to the offence charged are inadmissible by virtue of Section 27(3) of the Evidence Act and being inadmissible they are worthless and cannot be the basis of an indictment.
It is contended by the learned senior counsel for the 1st Respondent that the court is not concerned with admissibility of any statements as the proceedings are not at the stage of trial. It is argued that the admissibility or otherwise of these co-accused statements can only be tested at the time when they are sought to be tendered at the trial and not before. He relied on the cases R V. AKINPELU AJARU & ORS (supra); EUBU OMWAN V. POLICE (supra); R V. ENABOSI (supra); AFOLABI VS POLICE (supra); and OZAKI V. THE STATE (supra) to contend that for an Appellant to invoke the operation of Section 27(3) he must show that there has been a trial, evidence of the nature prohibited by Section 27(3) has been led and adduced and a fortiori he has in fact been convicted based on such prohibited evidence.
Section 27(1) (2) (3) of the Evidence Act provides:-
- “A confession is an admission made at any time by a person charge with a crime, stating or suggesting the inference that he committed that crime.
- Confessions, if voluntary, are deemed to be relevant facts as against the persons who made them only.
- Where more person than one are charged jointly with a criminal offence and a confession trade by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court, or a jury where the trial is one with a jury shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.”
It is clear from the above provisions that statements of co-accused which tend to draw inference of admission by a co-accused are only relevant as against the maker alone. The only exception to this is as provided for in subsection (3) where if the said statement was made in the presence of the other accused and after which the co-accused must adopt such statement either by words or conduct.
In the instant appeal, there is no such adoption of the admissions made by the 4th-6th and 12th Respondents and such statement were not made in her presence. The evidence therefore is legally inadmissible in proving the allegations against the Appellant. A voluntary confession or confessional statement of an accused person is deemed to be relevant and admissible against its maker and not against another, see DURUGO V. STATE (1992) 7 NWLR (PT.255) 525; IKEMSON V. STATE (1989) 3 NWLR (PT.110) 455; SOLOLA V. STATE (2005) 2 NWLR (PT.937) 460. The law is that a man’s confession is only evidence against him and not against his accomplices. A confessional statement of a co-accused is no evidence against an accused person unless the latter has adopted the statement either by words or conduct. See Section 27(3) as reproduced above. See also DIBIE V. STATE (2004) 14 NWLR (PT.893) 257; R VS AJANI (1936) 3 WACA 3. In the instant appeal, the statements of the 4th-6th and 12th Respondents were not made in the presence of the Appellant and neither was same adopted by words or conduct by the Appellant. The statements without more cannot be a basis for proceeding against the Appellant as these statements were not pointing to the Appellants guilt. It is an error in law to decline to quash a charge on the application of an accused on the ground that it does not disclose a prima facie case based on the evidence of a co-accused that was not made in his presence and same was neither adopted by words or conduct. It is a travesty of justice and a gross violation of all known rules of evidence.
With due respect to the learned senior counsel, it is the position of the law that the admissibility or otherwise of these co-accused statements could only be tested at the time when they are sought to be tendered at the trial and not before. In a criminal proceeding as in the instant case, trial of the accused commences upon arraignment and taking of accused person’s plea. In EFFIOM V. STATE (1995) 1 NWLR (PT. 373) 507 at 582 – 583, the Supreme Court per Wali, JSC (as he then was) held as follows:-
“A trial of an accused person commences when his plea is taken. See unreported judgment of the court in SC.68/1966, delivered on 17th October, 1966, OYEYERU V. COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE (1992) 2 NWLR (PT 226) 661 and ASAKITIPI V. THE STATE (1993) 5 NWLR (PT 296) 652….” It is not therefore the law that statement of co-accused person could only be rejected when same is given in evidence at the point of calling witnesses, as the said statements having formed part of the proof of evidence which the prosecutor wishes the court to peruse in deciding that a prima facie is made out against the Appellant, same must be looked at to ascertain whether these are legally admissible or not. See also ADIO V. STATE (1986) 3 NWLR (PT. 31) 714; KAJUBO V. THE STATE (1988) 1 NWLR (PT. 73) 721; and OGUNYE V. THE STATE (1999) 5 NWLR (PT. 604) 548.
Based on the foregoing, it is my candid view that this issue II is resolved in favour of the Appellant and against the 1st Respondent. The appeal succeeds in part. Issue I and 3 have already been resolved in favour of the 1st Respondent and against the Appellant. Consequently, the appeal succeeds in part and it is hereby allowed. The judgment of the trial court delivered on the 31st day of July 2008 that the proof of evidence, witness statements and documents is hereby set aside.
The Appellant is accordingly discharged on all the count charges against her.
Other Citations: (2009)LCN/3467(CA)
