Akpama Uket V. Federal Republic Of Nigeria. (2007)
LawGlobal-Hub Lead Judgment Report
BODE RHODES-VIVOUR, J.C.A.
In the High Court of the Federal Capital Territory, holden at Abuja the appellant was charged on a 4-Count information as follows:-
COUNT ONE
That you, Akpama Uket (m) on or about 8th May 2004, at Abuja, did corruptly promise Mr. Ndudin Iruakazi, the sum of N200.000.00 (Two Hundred Thousand Naira) in order to talk to the Director and the Assistant Direct vetting in the Department of State Services so as to assist on Musa Aliyu Yahaya to obtain a clean security clearance for appointment with the Economic And Financial Crimes Commission and you thereby committed an offence contrary to and punishable under section 9 (1) (b) of the Corrupt Practices And Other Related Offences Act 2000.
COUNT TWO
That you, Akpama Uket (m) on or about 8th May 2004, at Abuja, did offer to give the sum of N200,000 (Two Hundred Thousand Naira) as gratification to a public officer namely; Mr. Ndudin lruakazi as an inducement for him to show favour to Musa Aliyu Yahaya by assisting him to obtain a clear security clearance for appointment whenever his name is submitted for vetting to the Department of State Services and you thereby committed on office contrary to and punishable under section 18(d) of the Corrupt Practices And Other Related Offences Act 2000.
COUNT THREE
That you, Akpama Uket (m) and Musa Aliyu Yahaya (m), on or about 13th May 2004, at Abuja conspired with each other to give the sum of N100,000,00 (One Hundred Thousand Naira) to Mr. Adebayo Adele for him to show favour to Musa Aliyu Yahaya by assisting him to obtain a clean security clearances for his appointment with the Economic And Other Financial Crimes Commission, and you thereby committed an offences contrary to section 26 (1) (c) and punishable under section 9(1) of the Corrupt Practices And Other Related Offences Act 2000.
COUNT FOUR
That you, Akpama Uket (m) and Musa Aliyu Yahaya (m), on or about 13th May 2004, at Abuja, did give the sum of N100,000.00 (One Hundred Thousand Naira) to Mr. Adebayo Adele for him to show favour to Musa Aliyu Yahaya by assisting him to obtain a clean security clearance for his appointment whenever his name is submitted by the Economic And Other Financial Crimes Commission, EFCC to the Department of State Services for vetting and you thereby committed an offence contrary to and punishable under section 9(1) of the Corrupt Practices And Other Related Offences Act 2000.
Pursuant to sections 6 and 36 (5) of the Constitution, section 185 of the Criminal Procedure Code and under the inherent jurisdiction of the Court the accused/appellant filed an application to quash the above information on grounds which reads as follows:
(i) The proof of evidence does not disclose any prima-facie case or any case at all against them warranting or requiring them to be called upon to stand trial in respect of the charge/s.
(ii) The proof of evidence does not contain the written Statements of any of the 5 prosecution witnesses intended to be called at the trial of the accused/applicants.
(iii) The entire chargers, if juxtaposed with the proof of Evidence and or the list of witnesses would clearly demonstrate that the arraignment of the accused/applicants based on the said charge/s constitute a gross abuse of court process.
In the trial court the appellant was the 1st accused person.
The application was refused by Oniyangi J.
Being dissatisfied with the learned trial judge’s refusal to quash the information the appellant was compelled to appeal to this court.
On the 8th of August 2005 the appellant field a Notice of Appeal containing seventeen grounds of appeal. Both sides filed and exchanged briefs of argument as provided by Order 6 Rules (2) and 4 (1) of the Court of Appeal Rules.
The briefs were adopted by learned counsel at the hearing on the 2nd of November 2006.
Learned counsel for the appellant Mr. C. Chukwudi urged us to allow the appeal and quash the charge/s
Reply in Mr. S. Kado urged us to dismiss the appeal.
In the appellant’s brief five issues were submitted as arising for determination in the appeal
They are:
ISSUE NO. 1
Whether the learned trial judge was Tight to have granted the respondent leave to prefer chargers against the appellant, warranting him to stand trial irrespective of the fact that there is/was no prima-facie evidence in the proof of evidence linking the accused/appellant with the charge/s
ISSUE NO.2
Whether the trial court was right in holding that there was/is a prima-facie case prepared against the accused/appellant, having regard to the fact that the charge/s is fundamentally and incurably defective and irrespective of the fact that the trial judge did not independently rule on the accused/appellant motion neither did he properly consider the uncontroverted affidavit of the accused/appellant.
ISSUE NO.3
Whether counts 1 and 2 in the charge sheet were/are not bad in Law for duplicity of charge/s as argued by the appellant’s counsel whom the learned trial judge neither considered nor ruled on it.
ISSUE NO.4
Whether after an application to quash the charge/s has been moved and replied upon, the learned trial judge was right to have amended counts 3 and 4 suo motu without affording the appellant the opportunity to comment on the amendment even when the prosecution did not apply or seek for the amendment.
ISSUE NO.5
Whether in the interest of fair hearing counts 3 & 4 which are vague, nebulous, ambiguous and unknown to law were properly amended and framed to enable the trial judge compel or direct the accused/appellant to make a fresh plea on the ambiguous amended charge (Grounds 8, 11,13, & 16).
Learned counsel for the respondent formulated three issues for determination in the appeal.
They are:
i) Whether there is prima facie evidence in the proofs of evidence linking the appellant with the offences with which he was charged.
ii) Whether having regard to the facts of the case and in the absence of a counter affidavit the counts of the charge against the appellant could be said to be fundamentally and incurably bad.
iii) “Whether the drafting of counts 1 and 2 of the charge against the appellant were bad for offending rule against duplicity”.
The Court of Appeal is free to adopt or even formulate issue that would determine the real complaints in an appeal. See IKEGWUOHA v. OHAWUCHI (1996) 3 NWLR pt. 435 p. 146. ADUKU v. ADEJOH (1994) 5 NWLR pt. 346 p. 582.
I shall in the circumstances rely on the issues formulated by the appellant. I adopt them.
ISSUE NO.1
Learned counsel for the appellant observed that the application for Leave to prefer criminal charge contained only three items to wit:
(a) Copy of the charge.
(b) Names and addresses of witnesses.
(e) Proofs of evidence.
Contending that the application did not contain the statement of the accused person and that a dispassionate and painstaking consideration of the contents of the proof of evidence and statement of the accused person will reveal that Leave ought not to have been granted by the trial court. He argued that the Statement of proof of evidence does not disclose a case to warrant the accused/appellant to stand trial because the evidence to be given by the five prosecution witnesses is so contradictory, manifestly unreliable, illogical and unreasonable.
Relying on ABACHA v. STATE (2002) 11 NWLR pt. 779 p. 437 IKOMI v. STATE (986) 3 NWLR pt. 28 p. 340. EGBE v. ADEFARASIN (1980) NCR p 841.
He concluded that the entire charge/s constitute an abuse of process, as there is no primafacie case against the appellant.
Learned counsel for the respondent observed that in the application for Leave to prefer criminal charge the respondent (prosecution) relied on the proposed charge/s, names and addresses of witnesses, the proof of evidence and the statement of the accused person (appellant). He submitted that the materials placed before the court by the respondent were sufficient to support the application for Leave to prefer criminal charge/so Relying on R.V. OGUCHE (1959) 4 FSC P.64. IKOMI v. STATE (1986) 3 NWLR pt. 28 p. 340 ABACHA v. STATE (2002) 11 NWLR Pt. 779 p. 437.
He further submitted that the learned trial Judge exercised his discretion to grant Leave properly and that he was right in refusing to quash the charge against the appellant Section 185 (b) of the Criminal Procedure Code Provides that:-
“No person shall be tried by the High Court unless
(a)…………………….
(b) a charge is preferred against him without the holding of a preliminary inquiry by Leave of a Judge of the High Court.
An application for Leave to prefer Criminal charge is made pursuant to section 185 (b) of the Criminal Procedure Code. Under the said Rules the application shall be accompanied by a copy of the charge ought to be preferred, names of witnesses who shall give evidence at the trial, proof of evidence, i.e. written statements of witnesses and accused person which shall be relied on at the trial.
The applicant who must be the Attorney – General of the Federation or a State (depending on the nature or the charge) or a counsel in his office acting on his behalf shall also inform the court that no application for such Leave has been made previously in the case and that No preliminary investigation is being conducted in any Magistrate Court. Acting under the said Rules the trial Judge has discretion to grant or refuse the application, and this discretion can only be exercised after the trial Judge examines the proof of evidence and all the documents filed in support of the application.
The Court Order on the application for Leave of prefer charge is on page 46 of the Record of Appeal. It reads:-
“Upon reading me (sic) Sanusi Kado Esq. Counsel for complainant applicant for Leave is preferred, a criminal charge with the proof of evidence and attached statement of the accused.
LEAVE IS HEREBY GRANTED to the Applicant to prefer a criminal charge against the accused AKPAMA UKET and MUSA ALIYU YAHAYA forthwith………
…………………………………”
The following documents were filed with the application for Leave to prefer the charge:
(a) a copy of the charge.
(b) List of prosecution witnesses,
(c) proof of evidence (not written statements) of the said witnesses.
(d) Written statement under caution of the accused/Appellant. See pages 1-36 of the Record of Appeal.
Before it can be said that the learned trial Judge exercised his discretion judicially and judiciously, that is to say with sufficient, correct, and convincing reasons and not on his whim and fancy he must have examined all the materials before him and considered the applicable Law,
See D.B.A. LTD v. STAHIBU GMBH and co. KG (1989) 6 SC pt. 1 p.22.
My lords, the appellant was charged with promising to give the sum of N200,000.00 to one NDUDIN IRUAKAZI in order to talk to the Assistant Director Vetting to assist MUSA YAHAYA get clean security clearance. Offering to give the sum of N200, 000.00 to one NDUDIN IRUAKAZI giving gratification.
In the statement of the appellant on page 13 of the Record of Appeal he admitted witnessing the handing over of money and assisting in counting the sum N100,000.00 he and the other accused person gave to ADS vetting at the SSS office.
T. BAKO, a Deputy Superintendent of Police, one of the five prosecution witnesses would give evidence against the appellant to the effect that the appellant admitted visiting the SSS Headquarters on 13th May 2004 and giving the sum of N100.000.00 to MR. ADEBAYO ADENLE to enable him assist the second accused person to obtain a clean security clearance for appointment with the Economic And Other Financial Crime Commission, EFCC. MR. ADEBAYO ADENLE testimony will corroborate the DSP’s testimony.
Similarly the other prosecution witnesses will give similar damaging evidence. They are N. IRUAKAZI, J. NWACHUKWU and C. OJOBOR. In my respectful view the learned trial Judge was correct to grant the respondent Leave to prefer a criminal charge against the accused/appellant since there are clear facts to justify the exercise of discretion.
Once the facts in the information disclose a primafacie case the information would not be quashed.
In AJIDAGBA v. IGP (1958) SCNLR p. 60.
The term prima-facie was explained thus:
“What is meant by prima-facie (case).
It only means that there is ground for proceeding….. But a prima-facie case is not the same as proof which comes later when the court has to find whether the accused is guilty or not guilty and the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused”
A prima-facie case is established where after examining the proofs of evidence there is something that requires an explanation from the appellant.
That is to say the appellant/accused person must be sufficiently linked to the offence where an explanation is necessary from him at trial. See IKOMI v. STATE (1986) 1 NSCC Vol. 7 p 730.
R. v. OGUCHE (1959) 4 FSC p. 64
Where on the other hand the facts do not disclose a prima-facie case the information must be quashed. See OKORO v. STATE (1988) 12 sc (pt.111) p. 83. ABACHA v. STATE (2002) 7 SC (pt.1) p.1. OHWOVORIOLE v. FRN (2003) 1 SC (pt.1) p 1.
The fact that the appellant accompanied the 2nd accused person (in the information) to the office of the SSS and assisted in counting the sum of N100,000,00 which money learned out to be sleaze money is enough for the appellant to be called upon to explain his role in the bribery of the officials named in the charges
In my view the learned trial Judge was correct to refuse to quash the information. There is indeed ground for proceeding with the trial.
I shall now take Issues 2, 3, 4 and 5 together.
The issues therein are to do with the defective charge/so the learned trial Judge amending the charge/s suo motu, the fresh plea of the appellant to the charge and not Ruling on the appellants Motion. None filing of counter affidavit by the respondent. Learned counsel for the appellant observed that since the respondent did not file a counter affidavit, the depositions in the affidavit in support are deemed admitted. Reliance was placed on CHIEF OF AIR STAFF v. IYEN (2005) 6 NWLR (pt. 922) p. 496 OGAR v. JAMES (2001) FWLR Pt 67 p 930.
He also observed that the learned trial Judge did not consider the appellants Motion or make reference to the supporting affidavit in his Ruling.
He submitted that since the learned trial Judge did not rule on all the issues the decision of the court should not be allowed to stand. Reliance was plead on NALSA and TEAM ASSOCIATES N.N.P.C. (1991) 8 NWLR (pt 212) p 652. OTAPO v. SUNMONU (1987) 2 NWLR (pt 58) p 587.
Learned counsel for the respondent argued that the preliminary objection raised by the appellant in his application (on pages 42 to 45 of the Record of Appeal) was purely on ground of Law and the reply was on point of Law. He submitted that in this type of application the filing of affidavit is unnecessary. Reference was made to ABACHA v. STATE (2002) 11 NWLR (pt 779) P 437 at 486.
The position of the Law is that where facts deposed to in an affidavit have not been controverted such facts must be taken as true. See ALAGBE v. ABINBOLA (1978) 2 SC P 39.
EGBUNA v. EGBUNA (1989) 2 NWLR (pt. 106) p 774.
Where no reply affidavit is filed to a counter affidavit the facts therein are deemed admitted and conceded by the other party. See J. UNANGANGA v. M. G. IMO STATE (1987) 3 NWLR Cap 59) p 123.
Depositions in affidavits must address or explain crucial and material issues. It would thus be unnecessary to file a counter affidavit or reply affidavit to controvert vague or irrelevant dispositions of fact or if the affidavit is frivolous or unbelievable. E.g. that xmas day is 10th November.
Also depositions in an affidavit may be rejected, or there would be no need to controvert them where there are no supporting exhibits.
Motion should be supported by affidavits. Where they are not the application would be said to be naked.
An application to quash information is in the nature of a preliminary objection. In this type of situation affidavits are unnecessary. What is important is for the applicant/accused/person to state the grounds for the preliminary objection.
Proofs of evidence are served to give the accused person an opportunity of knowing what the prosecution witnesses are coming to court to say against him. It is the duty of the Judge to examine the entire proof of evidence to see if he can conclude that a prima facie case of the offences charged has been made out against the accused person. See EDE v. STATE (1977) 1 F.C.A. (pt. 95) at 115.
Only facts and events are taking into consideration when examining the charge/s.
In the light of all that I have been saying it becomes clear that an affidavit in support of the application to quash the information need not be controverted by a counter affidavit.
The considered Ruling of the learned trial Judge arose as a result of submissions made by the appellant on his Motion. The Ruling addressed all relevant issues. (See pages 66 to 75 of the Record of Appeal).
THE CHARGE
Learned counsel for the appellant argued that counts 1 and 2 are bad for duplicity in that both counts deal with the same offence, contending that both counts should be quashed. Reference was made to EGUNJOBI v. F.R.N. (2002) FWLR (pt 105) P 896. Continuing his submissions he observed that when the learned trial Judge was satisfied that section 9(1) of the Act did not provide for any punishment counts 3 and 4 ought to have been quashed instead of the learned trial Judge amending it to read 9(1) (b).
He submitted that the trial Judge was wrong to amend the said charge/s suo motu.
Reference was made to R v. ERONONI 14 WACA P 366. COP v. J. ILORIN (1965) NNLR P 63.
KRAUS THOMPSON v. UNICAL (2004) 6 MJSC p 36.
Concluding he observed that the counts are generally ambiguous, cloudy, and meaningless, and so should be quashed. Reliance was placed on ABACHA v. STATE (2002) 11 NWLR (pt 779) p 437.
He urged us to discharge and acquit the appellant.
Replicando, learned counsel for the respondent observed that counts 1 and 2 contain single separate and distinct offences against the appellant, and so they are not bad for duplicity. He argued that the learned trial Judge was right to invoke the provisions of sections 206 to 209 of the Criminal Procedure Code in correcting the section of the Law under which the appellant was charged to read section 9(1) (b) instead of section 9 (1) of the corrupt Practices And Other Related Offences Act 2000. Reliance was placed on OSUALELE v. THE STATE (1991) 8 NWLR (pt 212) P 770.
The appellant was charged on the four counts in the information: His argument is that counts 1 and 2 are bad for duplicity and so should be quashed.
A charge would be said to be bad for duplicity where in the charge two or more offences are lumped together, i.e. to say lumped together in one count. See OKEKE v. POLICE 12 WACA p 363. “HUMBE v. STATE (1974) 5 sc p 27.
In count one the appellant is charged for one offence, “corruptly promising” contrary to section 9(1) (d) and in count two offering to give the sum of N200, 000.00 as gratification, contrary to section 18 (d) of the Corrupt Practices and Other Related Offence Act 2000.
A charge must create an offence. It must be clear, with complete particulars and the punishment section stated. The accused person must never be misled.
In my respectful view counts 1 and 2 in the information are clear. An offence is created in each of the counts. The appellant was not misled and that explains why he readily entered a plea of not guilty when the charge/s was read to him. That also explains why his counsel never objected to the charge/s being read to the appellant. That counts 1 and 2 are bad for duplicity is clearly on afterthought.
The appellant was also charged in counts 3 and 4 for offences contrary to section 9(1) of the Corrupt Practices Act and Other Related Offences Act 2000. Section 9(1) (supra) does not prescribe any penalty for any wrong act.
The trial Judge saw this omission and amended both counts to read inter alia, punishable under Section “9(1) (b)” and not “9(1)”. His Lordships relied on the provisions of Section 206-209 of the Criminal Procedure Code.
Indeed the provisions of Sections 206-209 of the Criminal Procedure Code enables the court to alter or add to any charge at anytime before judgment is delivered.
Alteration of charge/s includes the framing of a new charge in place of the original one. See OKWECHIMA v POLICE (1956) 1 F.S.C. P 73 and a charge can be amended before final address but before judgment is delivered. See R. v. KANO & ARISAH (1951) 20 N.L.R P 32.
Amendment of charge would be allowed provided there is no injustice to the accused person. There would be no injustice to the accused person where he is called upon immediately the amendment is made to plead to the altered or new charge/s.
Failure to call on the accused person to plead to the amended or new charge would render the entire proceedings no matter how well conducted and decided a complete nullity. See R v. ERONINI (1953) 14 WACA P 366. POLICE v. ALAO (1959) WRNLR P 39. ADISA v…. (1965) NMLR p 144.
In this case, trial has not commenced, and immediately after the learned trial Judge amended Section 9(1) to read section 9(1) (b) his Lordship directed that the said counts 3 and 4 should be explained to the appellant. This was done and his plea was taken. See pages 72 to 74 of the Record of Proceedings I hold that the trial Judge was correct to amend the charge and followed correctly the position of the Law by allowing the appellant/accused to make a fresh plea to counts 3 and 4.
In the circumstances there was no injustice to the appellant.
The issue of amending charge/s suo motu does not arise since the appellant was given an opportunity to plead to the new charge, and he pleaded to same, coupled with the fact that there was no objection from counsel.
The appellant was not denied fair hearing. He was heard.
Finally, the Corrupt Practices and Other Related Offence Act 2000 is an existing Law, it being an Act of the National Assembly.
The considered Ruling of the learned trial Judge addressed all relevant issues and I agree with his Lordship that the application of the appellant to quash the information lacks merit.
In the end this appeal lacks merit. It is hereby dismissed.
There shall be no order on costs.
Other Citations: (2007)LCN/2186(CA)
