Architect Gabriel Aduku V. Federal Republic Of Nigeria & Ors (2009)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A.
This is an Appeal against the Ruling of the High Court of the Federal Capital Territory, Abuja in Charge Number FCT/HC/CR/48/08 delivered on the 31s1 day of July 2008 wherein the Court dismissed the application to quash the Charges against the Appellant and the other accused persons.
Briefly the facts of the case are that the Appellant together with the other accused persons are facing a total of 54 counts charge at the High Court of the Federal Capital Territory, Abuja. The charges arose from the large scale fraud in the Federal Ministry of Health in December 2007.
As a result of the preferment of this charge the accused persons including the Appellant were arraigned on the 8th day of April 2008. The Appellant pleaded not guilty. Thereafter like the other accused persons except the 3rd accused, the Appellant filed a motion on Notice dated 12th day of April 2008 in which he prayed for the following order:-
“An order striking out or quashing the charges contained in charge No-FCT/HC/CR/48/08 leveled against the 2nd accused on the following grounds:-
(a) A combined reading of the witnesses statements constituting the proof of evidence upon which leave was granted to prefer the aforementioned charges against the Applicant in this case discloses no prima facie case or any case whatsoever to warrant any further trial.
(b) The Applicant has committed no offence known to law. ”
The lower Court was faced with multiple applications to quash the information against all but one of the accused persons.
The prosecution filed a joint written address in respect of the said applications.
The lower Court after hearing the applications dismissed them by a Ruling delivered on the 31st day of July 2008.
Dissatisfied with the said Ruling the Appellant now appealed 10 this Court on three Grounds of appeal as contained in the Notice of appeal dated the 7th day of August 2008 The Learned Senior Counsel for the Appellant formulated three (3) issues for determination as follows:- (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. (Ground 1).
(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 (Ground 2).
(3) Whether the proof of evidence disclosed a prima-facie case to warrant the Appellant being put on trial on the fourteen counts charge brought against him (Ground 3).
The Learned Senior Counsel for the 1st Respondent agreed with the issues for determination as formulated by Learned Senior Counsel for the Appellant.
It would be recalled that all the Respondents were duly served with hearing notices in this appeal except 6th and 7th Respondents against whom the Learned Senior Counsel for the Appellant had applied to withdraw and which application was granted by this Court on 22/1/09.
The Learned Counsel for the 2nd, 3rd and 4th Respondents and the other Respondents in this Appeal chose not to file any brief of argument at the hearing Learned Senior Counsel for the Appellant and the 1st Respondent adopted and relied on their respective briefs of argument.
The Learned Senior Counsel for the 1st Respondent by a Notice of Preliminary Objection prayed this Court to strike out Ground 1 of the Notice of Appeal as well as issue 1 distilled therefrom.
The grounds of the objections are as follows:-
- The ground 1 does not constitute an attack on any ratio decidendi of the ruling and or decision of the lower Court and did not arise therefrom.
- The grounds do not derive from the ruling appealed against at all, and as such does not constitute a reasonable cause of appeal.
The Learned Senior Counsel for the 1st Respondent submitted that an appellate jurisdiction can only be invoked by notice and grounds of appeal attacking and or challenging a decision of the lower Court. He referred to definition of “decision” as contained in Section 318 of the 1999 Constitution of the Federal Republic of Nigeria.
He further submitted that for a ground to be competent, it must attack as erroneous the determination or finding of a lower Court, He went further that a ground of appeal which is based on a non-existent decision is not competent and any issue distilled from such an incompetent ground is puerile and must be discountenanced and struck out.
He relied on the following cases:
Babalola v. The State (198414 NWLR Part 115 Page 264;
Madagwa v. The State (1988) 5 NWLR Part 92 at Page 60.
Learned Senior Counsel for the 1st Respondent referred to the said Ground 1 and its particulars and stated that the ground neither attacks any decision, determination or finding of the lower Court nor does it challenge even a non-decision as to render it competent.
He finally urged that Ground 1 of the Notice and Grounds of Appeal as well as Issue 1 distilled therefrom should be struck out.
The Learned Senior Counsel for the Appellant in answer to the 1st Respondent’s objection filed Appellant’s Reply brief of argument in which he urged that the Preliminary Objection should be dismissed for being misconceived.
He submitted that error in a judgment or decision of a lower Court appealed against could be an error as to finding in law and or in fact, error in the reasoning of the lower Court on the facts and or law. Error can also be a failure and or omission on the part of the lower Court either in law or in fact.
He went further that the trial Court failed or omitted to determine the motions in this case separately. He then urged that the Preliminary Objection should be dismissed.
It is settled that for a ground of appeal to be competent, it must attack as erroneous the determination or finding of a lower Court.
An appeal presupposes the existence of some decision appealed against. In the absence of such a decision on a point there cannot possibly be an appeal.
See – Babalola v. The State (supra).
Arising from the proposition above is the fact that an issue formulated in an appeal must relate, arise or derive from a competent ground of appeal before it could be competent for determination in the appeal. Where an issue does not arise from or relate to the ground of appeal, it becomes incompetent and liable to be struck out.
See- Iconoha vs. NIPOST (2003) 8 NWLR Part 822 Page 308; – Animashaun vs. U.C.H. (1996)10 NWLR Part 476 at Page 65;
– Kokoro Owo vs. Lagos State Government (2001) 11 NWLR Parts 723 at Page 237.
It was contended on behalf of the 1st Respondent that Ground (1) one does not constitute an attack on the decision of the trial Court and therefore not competent to sustain issue one formulated therefrom.
In the instant appeal, the Appellant contended that the trial Court did not consider the six separate motions filed by eleven out of twelve accused persons. He went further that the trial Court failed or omitted to determine the motions separately bearing in mind the differences in applicable facts contained in the proof of evidence.
It is true that grounds of appeal against a decision of a Court must relate to that decision. The ratio decidendi can be subject of an appeal, specific findings of the lower Court can be subject of complaint in an appeal and the failures (omission) of the lower Court can constitute error that could be subject of complaint in an appeal.
The Blacks Law Dictionary 7th Edition at Page 1116 defined “omission” as follows:-
“(1) A failure to do something especially a neglect of duty.
(2) The act of leaving something out.
(3) The state of having been left out or of not having been done.
(4) Something that is left out, left undone or otherwise neglected. ”
In the instant appeal, Ground 1 of the Notice and grounds of appeal without particulars states as follows:-
“The learned trial judge erred in law in failing to consider my application to quash the charges against me separately rather than combining it with all other five applications filed by 10 other applicants and delivering the same ruling when the circumstances are different.”
A careful examination of the above Ground 1 of the Appellant’s Notice and Grounds of appeal would show that the ground is complaining whether the trial Court was right in its ruling by failing to determine the separate application of the Appellant separately. And like the analogy given by Learned Senior Counsel for the Appellant the ground of complaint in this appeal is similar in terms with grounds of appeal which complained against the failure of the trial Court to consider the defence of the an accused person no matter how foolish the defence may be.
In view of the foregoing, there is no doubt that the ground of complaint in the Notice of appeal was based on the decision of the trial Court, therefore it is a competent ground of appeal, a fortiori issue 1 distilled from the said ground 1 is competent Consequently, this objection by Learned Senior Counsel for the 1st Respondent lacks merit and it is hereby struck out I will now go into the merits of the appeal.
Since the Learned Senior Counsel for the 1st Respondent had adopted the issues for determination as formulated by Learned Senior Counsel for the Appellant therefore issues as formulated by Learned Senior Counsel for the Appellant is considered relevant and apt to determine this appeal.
Issue 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. (Ground 1).
The Learned Senior Counsel for the Appellant referred to the fact that the accused persons were charged with similar and different counts, and also that the Appellant was charged with only 14 out of the 56 counts and was not concerned with the other counts which affected the other accused persons, He went further that the trial Judge while considering the various applications treated all the applications as one and the same by formulating only two joint issues for determination from seven different applications.
He then submitted that the procedure followed by the learned trial Judge is wrong in law. This according to him is because it will not suffice to distill only two issues from the different applications filed since the statements of the witnesses affected each of the accused persons differently.
Learned Senior Counsel referred to the statements of some of the witnesses to show that the learned trial Judge ought to have considered the case of the Appellant separately from those of the other accused persons.
He therefore urged this Court to hold that there is nothing in the statements that can warrant the second accused person to be put on trial.
He relied on the following cases:-
Oyediran v. The Republic (1967) NMLR Page 122;
Egbedi v. The State (1981) 11 -12 S.C. Page 98;
Nnajifor v. Ukonu 1.1986)4 NWLR Part 36 Page 505;
Nora v. Nwalusi (1962)1 All NLR Page 681.
He finally submitted that the failure to review and consider the proof of evidence before coming to a conclusion that there seems to be a prima facie case made out has resulted in a miscarriage of Justice.
He urged that the ruling of the trial Court should be set aside. He relied on Abacha v. The State (2002) FWLR Part 118 Page 1224 at Pages 1299-1300.
The Learned Senior Counsel for the 1st Respondent in his own submission stated that Oyediran vs. The Republic (supra) relied upon b y the Appellant is not relevant because authorities can only be binding precedents where the facts of the former case are on all fours with those of the later, He relied on the following cases:-
– Green vs. Green (2001) 45 WRN Pages 90;
-Odua Invest Co. Ltd VS. Talabi (1997) 10 NWLR Part 523 Page 1 at 56.
He went further that the fact in the case under consideration is quite different from that in Oyediran v. The Republic (supra).
He also referred to the analysis of each of the 7 applications by the trial Judge in his ruling and he came to conclusion that the trial Judge reviewed the totality of all the materials in the proof of evidence before he came the conclusion that there seemed to be a prima facie case established against the accused persons.
In his reply brief of argument the Appellant drew the attention of this Court to the fact that the six motions filed by the accused persons including the Appellant were not consolidated. He went further that even though the 1st Respondent sought the leave of the Court to file joint reply to the motions, it did not erode the duty on the trial Court to consider and determine each motion on its peculiar facts separately.
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 vs. Green (supra);
Odua Invest Co. Ltd vs. Talabi (supra);
The Ruling of the trial Court is contained on Pages 730 10 756 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 Page 753 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 2007 .
…………………………………….
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.
Consequently the issue is resolved in favour of the 1.1 Respondent and against the Appellant.
Issue 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 (Ground 2).
It was submitted on behalf of the Appellant that the learned trial Judge erred in law when he held that the objection to the charge, having been raised by the Appellant after his plea was taken was belated and incompetent in law. He stated that the learned trial Judge relied on the case of Obakpolor v. The State (1991}1 NWLR Part 165 at Page 113.
Learned Senior Counsel for the Appellant submitted that Obakpolor’s case and even the principle relied upon were inappropriate and wrongly applied.
The Learned Senior Counsel for the 1st Respondent submitted that the argument of the Learned Senior Counsel for the Appellant is misconceived.
He stated that the starting point will be to define what actually constitutes a plea. And what are the options opened 10 an accused person after a charge has been read to him?
He referred to Black’s Law Dictionary for the meaning of Plea – “that it IS an accused person’s formal response to a criminal charge,” He went further that:-
A guilty Plea – Is an accused person’s formal admission in Court of having committed the charged offence.
Not guilty Plea – Is an accused person’s formal denial in Court of having committed the charged offence.
A Plea in Bar – is a plea that seeks 10 defeat the prosecutions action completely and permanently.
He stated further that an accused person may also keep mute by which a not guilty plea is then entered.
Learned Senior Counsel for the 1st Respondent argued further that in all the foregoing, the accused person must take a decision after reading of the charge. Where he elects 10 enter a plea of guilty, the Court proceeds to convict him. On the other hand, if he enters a plea of not guilty, he automatically puts himself on trial and prosecution proceeds to adduce evidence in support of the charge. At the close of prosecutor’s case he may challenge it by a No case submission. And where he enters a plea at the bar, he is effectively saying that granted the admission of all the facts in the proof of evidence and the charge, no link exists to connect him with the charged offence as to warrant him to enter either a guilty or not guilty plea.
He submitted that such an option as enumerated above cannot be available to the Appellant after he has put himself on trial by entering a plea of not guilty.
He relied on the following cases:-
Ikomi v. The State (1986) 3 NWLR Part 28 at Page 340;
Abaeha v. The State (2002) 11 NWLR Part 779 Page 437:
FRN v. Adewunmi {200?) 10 NWLR Part 10042 Page 399 at 423;
Uhwovoriole v. FRN (2003) 2 NWLR Part 803 Page 176 at 190.
It was finally submitted on behalf of the 1st Respondent that since it is not disputed that the Appellant had on the 8th April 2008 elected a plea of not guilty he had put himself on trial, therefore that the subsequent objection to indictment would be belated.
In this appeal under consideration, it would be necessary 10 examine Section 167 of the Criminal Procedure Act and find out whether there is similar provision in the Criminal Procedure Code.
The learned trial Judge relied on Obakpolor’s case in coming to the conclusion that since the Appellant had taken his plea before filing a motion to quash the charge, the notice was belated and incompetent in law.
Section 167 of the Criminal Procedure Act which was interpreted in Obakpolor’s case provides:-
“Any objection to charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the Accused and not later.”
The Accused Appellant is facing amended charge based on Penal Code Cap. 532 Laws of the Federation of Nigeria 1990. One thing which is clear is that it is the Criminal Procedure Code (CPC) that regulates the Practice and Procedure in Northern Nigeria while Criminal Procedure Act regulates the practice and procedure in the Southern Nigeria.
Section 167 of the Criminal Procedure Act was interpreted in Obakpolor’s case.
The other cases i.e.
Ikomi v. The State 1supra)
Abacha v. The State (supra0
FRN v. Adewunmi (supra)
Uhwovoriole v. FRN (supra) were all decided upon the provisions of Criminal Procedure Act.
Section 167 of the Criminal Procedure Act does not have an equivalent provision in the Criminal Procedure Code. I therefore agree with the submissions of the Learned Counsel for the Appellant that the Criminal Procedure Code regulating the practice and procedure in Northern Nigeria does not make equivalent provision 10 accommodate the objection contemplated under Section 167 of the Criminal Procedure Act.
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.
This issue is therefore resolved in favour of the Appellant and against the 151 Respondent.
Issue 3
Whether the proof of evidence disclosed a prima-facie case to warrant the Appellant being put on trial on the fourteen counts charge brought against him (Ground 3).
The Learned Senior Counsel for the Appellant submitted that upon a review of the entire proof of evidence, that there is nothing to link the Appellant with any of the counts laid against him to warrant his being put on trial.
He went further in his submissions that when after plea is taken, an objection is raised that a prima facie case has not been made out against an accused person and that all counts in the charge be quashed, the Court before whom the application is made is guided by the following principles:-
(a) The Court must confine itself to the statements and documents put forward in the proof of evidence at the time the objection was raised. Once proof of evidence does not disclose any offence, the charge must be quashed and it does not matter that further evidence or documents might be introduced later,
See:-
Egbe v. The State (1981) 1 NCR Page 341;
Uhwovoriole v. FRN (2003) 2 NWLR Part 803 Page 176 at Page 203.
(b) The proof of evidence only needs to show the probability and not the certainty that the accused person is linked with the offence charged Such evidence may be direct or circumstantial, Whether there are other co-existing circumstances which could weaken the inference that may be drawn from the circumstances or whether the evidence leads irresistibly to accused person’s guilt can only be determined at the trial.
See:-
Ikomi v. The State (1986) 3 NWLR Part 29 at Page 345 particularly at Page 362:
Uhwovoriole v. FRN (supra)
(c) In coming to a decision on whether a prima facie case has been made out the Court must examine all the depositions made by potential witnesses and accused persons so as to find if there is a ground for proceeding against the accused, It is only where a consideration of the totality of the evidence (if believed) when deemed uncontradicted disclose no link of the accused with the offences that the charge will be quashed.
See – Ubanatu v. C.O.P. (2000) 2 NWLR Part 643 Page 115 at 117;
– Abacha v. The State (supra).
(d) Although the statement and the document in the proof of evidence are deemed to be true and uncontradicted at this stage, the learned trial Judge must ensure that only legally admissible evidence is considered. There must be an examination and application of principles of law to the facts and the Court cannot act on any piece of evidence which even if believed would be irrelevant or admissible in law.
It was submitted by Learned Senior Counsel for the Appellant that if the above principles are applied the 2nd Accused/Appellant cannot be linked with any of the offences for which he is charged.
He then classified the charges against the Appellant into 3 main offences namely:-
(1) Conspiracy contrary to Section 97 of Penal Code (See Page 11 of the Record of Appeal).
(2) Criminal breach of trust by Public Servant contrary to Section 315 of the Penal Code (See Counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 at pages 12 – 17 of the Record of Appeal.
(3) Dishonestly receiving stolen property contrary to section 317 of the Penal Code (See Count 40 at Page 31 of the Record of Appeal)
Learned Senior Counsel for the Appellant referred to the case of Oduneye v. The State (2001LFWLR Part 38 Page 1203 at 1213 Paragraph C.F where conspiracy was defined as follows:-
“A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, by unlawful means.”
He also referred to the following cases:-
Oladejo v. The State (1994) 6 NWLR Part 348 at Page 101;
Aremu v. The State (1986)3 NWLR Part 32 Page 865.
He submitted that there is no evidence to link the Appellant with the conception, preparation and execution of the plan 10 award contracts, pay and withdraw money and distribute the money.
He went further that 43 persons made written statements to the Economic and Financial Crime Commission who were not listed as witnesses: And Abaeha v. The State (supra) established beyond doubt that the Court in deciding whether or not to quash the charge, should restrict itself only to the slate of evidence including of course, the admissibility or otherwise of these statements in law as at the date the application to quash was filed, He went further that it is a settled principle of Criminal Procedure that the statement of anyone who is not called as a witness is irrelevant and must not be taken to account by the Court, He relied on Opolo v. The State (1977) 11 – 12 SC Page 1 at Page 4.
He then submitted that all the written statements of the 43 persons not listed as witnesses are irrelevant, and in the alternative that there is nothing in their written statements that show a link between the offences charged and any act or omission either directly or circumstantially of the second accused/appellant. He stated that counts 1 to 13 cannot be linked to the Appellant and he urged this Court to quash the counts as regards the Appellant.
Count 40 (Receiving stolen property)
Learned Senior Counsel for the Appellant stated that all that could be gleaned from the proof of evidence on this count is that the sum of N7 Million was given to one Linus Akor, the Personal Assistant to the Appellant. And when the Appellant’s attention was drawn to the money by his Personal Assistant, he enquired to know the source of the money. He went further that when the Appellant did not receive satisfactory explanation, he directed his Personal Assistant to return the money to whoever brought the money to him. He also referred to the statement of the Personal Assistant on pages 122 -123 and the Appellant’s statement on page 132 of volume 1 of the Record of Appeal. He also stated that there is no evidence in any part of the proof of evidence that the sum of N7 Million was handed over to the Appellant let alone that the Appellant received it or converted it to his personal use.
He also referred to the statements of the co-accused i.e. 4th Accused and 6th Accused Persons. He submitted that, it is settled that in the interpretation of Section 11 (1) and (2) of the Evidence Act the Court must first be satisfied that apart from the statements of co-accused, there are prima-facie grounds for believing in the existence of the conspiracy to which they relate. He went further in his submission that Section 11 (2) as a proviso to 11 (1) of the Evidence Act makes it incumbent on the prosecution to supply other pieces of evidence aside from the statements of the fourth and sixth accused that there was any management meeting where the issue of welfare package was discussed and where the second accused was present. There must also be independent evidence that the second accused knew of the existence of the contracts and that the money he collected was out of the proceeds of the bogus awards. He relied on the following cases:-
Emeka v. The State 1(19981 7 NWLR Part 559 at Page 5512;
Nwosu v. The State (2004) 15 NWLR Part 897 at Page 466;
Aminu v. The State (2005) 2 NWLR Part 909 at Page 180.
He went further in his submissions that the statements of the fourth and sixth accused person’s even if believed failed the test of Section 11 of the Evidence Act and are legally inadmissible. And having regard to the fact that
4th and 6th accused persons are being tried along with the Appellant and they are accomplices in the commission of the alleged offences, it is necessary that independent corroborative evidence be available in the proof of evidence before the Appellant is subjected to trial. He relied on the case of:-
Bello v. The State (1966) All NLR Page 217 at 224;
Section 178 all of the Evidence Act.
He referred to the definition of an accomplice as defined in the following cases:-
Okosi v. The State (1989) 1 NWLR Part 100 Page 624 at 657 H;
Davies v. DPP (1954) A.C. Page 378 at 386.
The Learned Senior Counsel for the Appellant submitted further that having regard to the decision in Ozaki VS. The State (1990) 1 All NLR Page 94 at 114 – 116, the provision of Section 178 (2) of the Evidence Act is without qualification. He went further that the evidence of co-accused must be so clear and convincing before it can be used as a basis for trial and conviction of a co-accused He finally urged this Court to allow this Appeal and set aside the Ruling of the trial Court, and in its place quash the charges as they relate to the Appellant.
The Learned Senior Counsel for the 1Sl Respondent in his own submission stated that contrary to the arguments canvassed in the Appellant’s brief that there is nothing to link the Appellant with the offence, that there is a prima facie case disclosed in the proof of evidence in support of the offences charged at this stage.
He referred to – Abacha v. The State (supra) on the definition of prima facie case. And also:
Yay v. The State (2005) NWLR Part 917 Page 1 at Page 22 Paragraph B – E.
On the contention by the Learned Senior Counsel for the Appellant that the statement of anyone who is not called as a witness is irrelevant, Learned Senior Counsel for the 1st Respondent submitted that Opola v. The State (supra) relied upon is misleading. He went further that Opolo’s case arose after full trial and admission of evidence, and that no application in the nature of that under consideration was in issue. The case for all intents and purposes dealt with admission of documents and the evidential value of the contents of such exhibits.
On conspiracy, he submitted that it is a matter of inference from series of acts and that there is never any direct evidence of conspiracy. He relied on the case of Aje v. The State l2006l 8 NWLR Part 982 Page 345.
He also referred to the statement of Linus Akor, Dr. H. B. Oyedepo (4th Accused) the Appellant and Ekanem Donald (6th Accused) as contained in the proof of evidence and he submitted that there is an established link between the Appellant and the offences charged and consequently a prima facie case requiring the trial of the Appellant He finally urged that this Appeal should be dismissed.
In a Criminal Charge if an objection is raised that a prima facie case has not been made out against an accused person and as a result that all counts in the charge be quashed, the Court before whom the application is made would be guided by the following principles:-
(1) The Court must confine itself to the statement and documents put forward in the proof of evidence at the time the objection was raised. Once proof of evidence does not disclose any offence the charge must be quashed.
Uhwovoriole v. FRN (supra).
(2) The proof of evidence needs to show the probability and not the certainty that the accused person is linked with the offence charged. Such evidence may be direct or circumstantial.
Whether there are other co-existing circumstances which could weaken the inference that may be drawn from the circumstances or whether the evidence leads irresistibly to accused person’s guilt can only be determined at the trial.
See:- Ikomi v.. The Stale (supra)
(3) In coming to a decision on whether a prima facie case has been made out, the Court must examine all the depositions made by the potential witnesses and accused persons so as to find if there is a ground for proceeding against the accused. It is only where a consideration of the totality of the evidence discloses no link of the accused with the offences that the charge would be quashed.
See:-
Abacha v. The State (supra),
Ubanatu v. C.O.P. (supra}
(4) Although the statements and the documents in the proof of evidence are deemed to be true and uncontradicted at this stage, the learned trial Judge must still ensure that only legally admissible evidence is considered. There must be an examination and application of principles of law to the facts and the Court cannot act on any piece of evidence which even if believed would be irrelevant or inadmissible in law,
It was submitted by Learned Senior Counsel for the Appellant that no prima facie case has been made out against the Appellant because he could not be linked with any of the offences for which he is charged.
The actual meaning of the phrase Prima Facie is often misconstrued but in the Indian case of Sher Singh v. Jitenddnanthen (1931) 1 L.R. 59 Gale 275 quoted with approval by the Supreme Court in Ajidagba v. I.G.P J 1958 1 SCNLR Page 60 it was defined as follows:-
“What is meant by Prima Facie case? It only means that there is a 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 finally 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.”
See:- Adevemi v. The State (1991/ 6 NWLR Part 195 Page 1at 35:
Abacha v. The State (supra)
Yav v. The State (supra).
It was contended on behalf of the Appellant that the statement of anyone who is not called as witness is irrelevant and must not be taken into account by the Court.
The Learned Senior Counsel for the Appellant particularly mentioned the 43 persons who are not listed in the proof of evidence as witnesses but whose statements have been included in the proof of evidence He submitted that the statements are worthless.
It is my humble view that in determining whether a prima facie case is disclosed for the purpose of quashing an indictment, the Court must have regard to the entire proof of evidence attached to the charge or information.
This view is supported by pronouncement of Belgore JSC (as he then was) in Abacha v. The 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 placed, must look at the proofs of evidence attached to the information in totality and not pick words out of context.
I have indicated earlier what a prima facie case is. The entire proofs of evidence i.e. 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 the 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.
The Appellant is charged with the offence of conspiracy and the essential ingredient of the offence of conspiracy lies in the association to do an unlawful thing which is contrary to or forbidden by law whether that thing is criminal or not and whether or not the accused persons had knowledge of its unlawfulness. See – Clark v. The State (1986)4 NWLR Part 35 Page 381.
And it is open to the trial Judge to infer conspiracy from the fact of doing things towards a common end by the execution of a planned and premeditated common intention and common purpose. This is because the crime of conspiracy is usually hatched with utmost secrecy and the law recognizes the fact that in such a situation, it might not always be easy to lead direct and distinct evidence. See – Gbadamosi v. the State (1991) NWLR Part 196 at Page 182.
Although conspirators need not know themselves and need not to have agreed to commit the offence at the same time, however conspiracy could be inferred from the facts of doing things towards a common end where there is no direct evidence in support of an agreement between the accused persons.
See:- Njovens v. The State (1973) NSCC Page 257.
A careful examination of the proof of evidence shows that:-
(1) Dr. H. B. Ovedepo 4th accused stated:
“… in the case of the Hon. Minister of State, he had in fact been getting impatient that the money was not paid to him on time. He said that he had wanted to travel but that we have been delaying him because of the non payment of the money to him earlier than we did. This was why he was the one to be paid first. The Hon. Minister was paid the following week. He also never returned the money until Thursday 28th February 2008 when I demanded for it. All my staff were present when his P.A. in company of two others brought it to my office I want to state that the decision to pay the welfare package was a management decision involving the two Ministers, Permanent Secretary and three Directors, It was only the detail that were worked out without their input”
(2) The Appellant – Gabriel Aduku admitted………………………………………………………………………
“………………………………………………………………….
Shortly after my official trip from Addis Ababa, Ethiopia early in January 2008, I was confronted by the Director of Finance and Permanent Secretary in my office with a so called welfare package for end of year 2007 which they said was Seven Million Naira. I asked if this was a normal thing to do and they replied yes. My PA was instructed to put it aside. After series of enquiries to other ministries and agencies, I directed my P.A. to return.
…………………………………………………………………. ”
(3) Ekanem Donald – 6th Accused
” …………The Director of Finance told me that the Ministers and the Perm Sec have just embarrassed him, that they said they were waiting for their money………………………….. The D. D. Accounts insisted that I sign the cheques because the Ministers were waiting for their money.”
(4) Linus Akor said
“Sometimes in January 2008 the 3rd , 4th and 5th accused persons had come to the Minister’s Office and dropped N7 Million for the Minister.
He was instructed to put it aside, this was done but after a few days the Minister instructed him to return the money to the Director of Administration and Supplies (4th Accused). He cannot remember specifically when the bag was returned……………………………………………… ”
The 4th and 6th Accused Persons are co-accused and the position of the is that the evidence of co-accused must be so clear and convincing before it can be used for trial and conviction of a co-accused.
In the instant appeal, the entire proof of evidence when read as a whole showed a sealed large scale fraud in the Federal Ministry of Health but the required corroborative evidence to link the Appellant with the crime could not be found from among the statements of other witnesses in the proof of evidence. This issue is therefore resolved in favour of the Appellant and against the 1st Respondent
Consequently, it is my humble view that this is an appropriate stage to terminate the trial, this is because the proof of evidence in this case has not disclosed a prima facie case against the Appellant.
In view of the foregoing even though issue 1 was resolved against the Appellant this appeal succeeds in part and the Ruling of the lower Court is hereby set aside. In its place, charges No: FCT/HC/CR/48/08 against the Appellant is hereby quashed, and the Appellant is hereby discharged.
Other Citations: (2009)LCN/3158(CA)