Hanafi Mohammed V. Federal Republic Of Nigeria & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A,

There are two appeals in respect of two applications argued at the same sitting but differently. The first application would be determined before the second appeal on the other application would be taken on. Pursuant to an application dated 4th April 2008, the 1st Respondent sought and obtained leave of the Honourable Justice Salisu Garba sitting at the High Court of the Federal Capital Territory, Abuja to initiate criminal proceedings against the Appellant (charged as the 5th Accused) and the 2nd to 12th Respondents.

The Appellant and the 2nd to 12th Respondents were arraigned on 1st April, 2008 on a fifty four (54) count charge later amended to fifty six (56) counts where to all the accused persons pleaded not guilty. The charges against the Appellant are contained in counts 1- 38, 43 and 55 of the 1st Respondents information and relate to offences of:

1. Conspiracy to commit criminal breach of trust by public servant – counts 1, 14 and 55.
2. Criminal Breach of Trust as a public servant – counts 2 – 13.
3. Forgery – Counts 15, 17, 19, 21, 23, 25, 27, 29, 31, 33, 35 and 37.
4. Fraud – counts 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36 and 38.
5. Dishonestly receiving proceeds of criminal breach of trust – counts 43.

By a motion dated the 14th day of April, 2008 and filed the same day, the Appellant sought to quash all the counts for which he was charged.

The application to quash was premised on three (3) grounds, to wit:

(a) The offences alleged against the Appellant were not disclosed by the statements of witnesses listed by the prosecution which formed the bulk of the proof of evidence.

(b) No offence committed by the Appellant was disclosed by the proof of evidence before the trial court and when the charges are compared and contrasted with the proof of evidence and the ingredients of the alleged offences, the result is that the information was an abuse of Court process.

(c) The proof of evidence and the statement of witnesses do not disclose any prima facie case against the Appellant requiring him to stand trial before the trial court or any other court of law on any of the charges.

Beside the Appellant, all the other Accused/Respondents (except the 4th Respondent) also filed an application to quash the charge. The 2nd Respondents’ application was dated 11/04/08; the 6th, 8th and 9th Respondents by a joint motion dated 14/05/08; the 7th Respondent by a motion dated 9/05/08 and the 12th Respondent by a motion dated 28/05/08. All the seven (7) applications (including that of the Appellant) were argued separately but in his ruling the trial Judge considered them together and in his consolidated ruling delivered on 31st July 2008 he dismissed all the applications.

Dissatisfied with the trial Court’s ruling on his application to quash the Charge, the Appellant has appealed to this Court for a reversal of the ruling on four (4) grounds as contained in his Notice of appeal filed on the 4th August, 2008.

On the 29/9/09 the learned counsel for the Appellant, Mr. Olorundare SAN adopted the Appellant’s Brief filed on the 13/3/09 and the Reply Brief of the 18/6/09. He urged the Court to grant the prayer in the appeal.

Mr. Pinheiro for the 1st Respondent adopted their Brief filed on 14/5/09 and deemed filed on 15/6/09. He urged this court to dismiss the appeal.

Mr. Aremu for the 12th Respondent did not file any Brief and said they shall abide whatever the judgment.

Mr. Ologunorisa for the 7th, 9th, and 11th Respondents said they do not oppose the appeal and so had not filed any Brief.

ISSUES FOR DETERMINATION:

1. Whether it is not apparent from the Ruling of the Trial Court that the application of the appellant was not properly considered and determined on its individual merit and whether the omission or declaration has not occasioned injustice to the Appellant.
2. Whether the trial court was right on the balance of evidence in holding that a prima facie case has been established against the Appellant as to warrant him being put on trial.
3. Whether the Appellant’s application was belated and incompetent by reason of the Appellant taking his plea before bringing same as held by the trial court.

The 1st Respondent had through Counsel, Toyin Pinheiro couched three issues and they are.

1. Whether the failure of the learned trial Judge to consider and determine each of the respective applications to quash the indictment has not occasioned a miscarriage of justice on the Appellant.
2. Whether the Appellant’s application taken after the plea was belated and incompetent.
3. Whether the Lower court was right when it held that a prima facie case is disclosed against the appellant.

The 1st Respondent in this Brief raised a Preliminary Objection praying for the following:-

1. AN ORDER dismissing this appeal.
2. AN ORDER striking out grounds 1and 2 of the Appellant’s Notice of Appeal dated 4th August, 2008 and by implication striking out issues 1 and 11 distilled for determination in the Appellant’s Brief of Argument from the apparently incompetent Grounds of Appeal.

AND TAKE FURTHER NOTICE that the grounds upon which the objection is premised are:-

(1) This Honourable Court’s jurisdiction has been improperly and incompetently invoked.

(2) The purported “notice of appear is incompetent and therefore the appeal is unmaintainable.

(3.) Grounds 1and 2 are grounds of mixed law and fact and in the absence of leave having been sought and obtained, they are incompetent and the jurisdiction of this Honourable Court is ousted.

In arguing this Preliminary Objection, Mr. Pinheiro stated that an appellate jurisdiction can only be invoked by a valid notice of appeal containing competent grounds of appeal. That the Court of Appeal was created not for reckless appeals but for appeals which have a chance of success but may not necessarily succeed. He cited Onwalu v. Mokwe (1999) 1 NWLR (pt. 585) 146. Continuing learned counsel for the 1st respondent said the jurisdiction is determined from the statute creating it and other enabling statutory enactments and Rules. That in the exercise of a constitutional right of appeal the Court of Appeal Rules provides effective guidance. He referred to Order 4 Rule 3, 4, of 2007.

The learned for 1st Respondent said from the onset the operative word in the sub-rules (1) and (2) is “SHALL” which connotes a command and mandatory meaning. That the manifest intention of the legislator is to make compliance with these provisions compulsory and no element of discretion is permissible. Thus the legality or otherwise of a criminal appeal depends on whether the notice and grounds of appeal are as required by law and if either of them is defective there is no appeal as in this instance where the Notice of Appeal did not comply with the requirements. He cited Order 16 Rule 4 (2). That not only is the Notice of Appeal filed in clear departure from the prescriptions of Order 4 Rules 3 and 4 but same purporting to invoke the appellate jurisdiction in this appeal is violently in conflict with what is envisaged and contemplated under the requisite rules. That the following appear on the notice of appeal:-

(a) who the appellant is cannot be easily distilled as between his counsel OLORUNDARE SAN or HANAFI MOHAMMED.

(b) the notice of appeal fails to state the offence for which the accused/appellant is charged at the Lower court contrary to the requirement of FORM 1of the rules.

(c) the signature of the appellant appearing at the end of the 3rd page of the “notice of appear’ is at best an after – thought.

(d) whether the appellant is in custody or not stated in the said notice.

(e) the nature of the decision and/or order appealed against is not stated.

(f) all the questions required to be answered under Order 4(3) & (2) are not indicated neither, is any answer provided.

(g) the purported notice tells a lie against itself as it is not addressed to any person or office in violent conflict with the provisions of the rules which require that mandatorily the notice shall be addressed to the Registrar of the Court below. See Order 4 Rule 4(2).

(h) it does appear that the Civil Form 1 in the 1st Schedule is what the “appellant” used and merely implanted the “appellant’s” signature as an afterthought.

He further contended that the Rules having been made under the provisions of the constitution have the full force of the law and must be obeyed. He cited Abayomi v. Attorney General Ondo State (2006) 8 NWLR (pt. 982) 211; Kankawa v. COP (2002) 13 NWLR (pt. 785) 596; Afribank (Nig.) Plc v. Akwara (2006) 5 NWLR (pt. 974) 629.

That from the Court’s record there is no evidence that leave was sought at this Court or in the Court below. Mr. Pinheiro said specific attention is invited to the 2nd particular of error in Ground 1 and 1st and 2nd particulars of error in Ground 2. The right of appeal is automatic and as of right where by virtue of Section 242 of the Constitution an appellant comes within any of the provisions in both civil and criminal proceedings where the grounds indicate law simpliciter no leave will be required. That in this appeal an interlocutory decision is appealed against and the grounds relate to mixed law and fact and leave of court must be obtained before the appellate jurisdiction can be invoked. That the mere fact that a ground is tagged “ground of law” is not conclusive that it is a ground of law alone requiring no leave. He cited Tilbury Construction Co. Ltd. v. Ogunbiyi (1988) 3 SCNJ 121; Amuda v. Adelodun (1994) 8 NWLR (pt. 360) 23 at 30; Ogunleye v. Military administrator Ondo State (1996) 9 NWLR (pt. 471) 176 at 183.

Mr. Pinheiro said that grounds 1 and 2 invited attention to the various depositions, statement of witnesses and various documents attached to the charge and the finding that a prima facie case is not disclosed required a finding that sufficient evidence and facts are not disclosed. That, that finding from evaluation of facts, itself is a finding of fact which will then give rise to a conclusion of law. He went on to say that grounds 1 and 2 clearly raise issues of mixed law and facts and require leave to be competent. He cited State v. Bassey (supra); Ogbechie v. Onochie (1986) 2 NWLR (pt. 23) 484); Hassan v. Atanyi (2002) 8 NWLR (pt. 770) 582 at 604.

Learned counsel for the appellant, Mr. Olorundare SAN in reply stated that the primary purpose of a preliminary objection is to determine or terminate the proceedings in limine at the time it was raised. That the 1st Respondent had set out to do so on the 30th of April 2009 when counsel on her behalf argued her preliminary objection dated 27th of April 2009 and after hearing from both counsel adjourned the substantive appeal for hearing to the 15th of June 2009 in refusal to dismiss the application for accelerated hearing or the appeals as prayed. That it ought to be the end of the matter as it relates to those issues as the 1st Respondent is stopped from raising in a subsequent proceeding that which had been raised and determined in an earlier proceeding. He cited Attorney General Federation v. Fafunwa Onikoyi (2006) 18 NWLR (pt. 1010) 51 at 66; Military Administrator, Benue State v. Ulgbede (2001) 17 NWLR (pt. 741) 194 at 224 – 225.

Mr. Olorundare SAN for the Appellant submitted that even if the defects enumerated in paragraph 3.06 ( a – h) are real, that same can be cured under Order 16 Rule 4 (2) the Appellant having exhibited a clear intention to appeal against the decision of the Lower Court which is the overriding consideration under the rule. He cited Order 19 Rule 3(1) of the court of Appeal Rules under which this court has inherent power to waive non-compliance. That the Appellant will suffer injustice if his appeal is defeated by reason of form.

I would like to refer to the situations where an appeal is based on facts or law simpliciter or a mixed law and fact situation. See Ogunleye v. Military Administrator On do State (1996) 9 NWLR (pt. 471) 176.

In determining whether a ground of appeal involves question of law alone or not three criteria are taken into consideration and these are as follows:-

(a) Where facts are not disputed and the only complaint is as to the way the Lower Court has applied the law to those established undisputed facts the ground of appeal is one of law.

(b) Where the decision of the Lower Court is perverse in the sense that no reasonable tribunal would, on the evidence before it, have reached such a decision or that there was no evidence to support the decision reached by the court, a complaint against such a decision cannot raise any question other than question of Law.

(c) Where, however, the issue raised involves the exercise of discretion by the Lower court and the appeal is challenging the exercise of that discretion which was based on the evidence placed before that court, the ground of appeal necessary raises issues of mixed law and fact. Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 NWLR (pt. 126) 299 at 325; State v. Ajayi (1996) 2 NWLR (pt. 429) 203 at 212; Ogbechie v. Onochie (1986) 2 NWLR (pt. 23) 484; Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718.

What is important in determining whether a ground of appeal involved questions of law or fact or mixed law and fact, is not its cognomen, nor its designation as “error in law”. Rather it is the essence of the ground of appeal, the reality of the complaint embedded in that name that determines what any particular ground involves. Thus, it is not what the appellant chooses to designate a ground of appeal that controls, rather it is the nature of the ground of appeal read together with the particulars that characterize the ground of appeal as one of pure law or mixed law and fact or facts alone. Abidaye v. Alawade (2001) 6 NWLR (pt. 709) 463 at 476 per Achike JSC; Ogbechie v. Onachie (1986) 2 NWLR (pt. 23) 484; U.B.A. Ltd. v. Stahlbau Gmbh & Co. (1989) 3 NWLR (pt. 110) 374; Ojemen v. Mamadu (1983) 3 SC 173.

Where a ground of appeal and the particulars of error reveal that the appellant is questioning the evaluation of the facts by the Lower courts before the application of the law, then it is a ground of mixed law and fact, This is because, a consideration of the ground in the light of the particulars will engage the court in an evaluation of facts in the appeal. Abidaye v. Alawade (2001) 6 NWLR (pt. 709) 463 at 472 per Onu JSC.

I would here quote the Notice of Appeal of 4th August 2008, subject of this discourse.

NOTICE OF APPEAL:

1. TAKE NOTICE that the Appellant, Hanafi Mohammed being dissatisfied with the ruling of the High Court of the Federal Capital Territory Abuja presided over by his Lordship, Hon. Justice Salisu Garba delivered on the 31st day of July 2008 doth hereby appeal to the Court of Appeal of Nigeria, Abuja upon the grounds set out in paragraph 3 and will at the hearing seek the reliefs set out in paragraph 4.

AND THE APPELLANT FURTHER states the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.

2. PART OF THE DECISION APPEALED AGAINST: The entire Ruling dated 31st day of July 2008.
3. 3.1. ERROR IN LAW:

The learned trial judge Hon. Salisu Garba J. erred fundamentally in law when in his effort to show that the charge against the 5th Accused person were well laid out in counts 1-38,43 & 55 disclosed an offence requiring the 5th Accused to stand trial made the following findings:

“from the statement of the 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 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. It was further alleged that out of the money, the sum of N10 million was given to the 12th accused who is the Chairman of the Senate Committee on Health and another N10 million to the House Committee on Health; while the House Committee on Health was said to have returned their own, that was not done by the 12th accused person.

In the circumstances, and based on the proof of evidence and witness statement and various documents attached to the charge in support of this charge and the decision in the case of ABACHA V. STATE. I am of the view that there seem to be prima-facie case established against the accused persons”.

PARTICULARS OF ERROR:

i. From the foregoing finding of the learned trial judge, it was apparent that he miss applied the decision in ABACHA V. STATE.

ii. When all the Statements of the witnesses and the proof of evidence inclusive of the statements of the other co accused show crystal clear, particularly when examined dispassionately, that the appellant could by no stretch of imagination have been charged with the offences contained in counts 1 – 38, 43 and 55 of the amended charged.

2. ERROR IN LAW:

The learned trial judge further erred in law when he came to the conclusion that a prima-facie case has been made out against the appellant on the face of the depositions and statements in respect of counts 1-38, 43 and 55, when indeed there was not a scrap of evidence linking the appellant with the offence charged.

PARTICULARS OF ERROR:

i. No where in the statement of the proposed witnesses inclusive of the statements of other co-accused was the appellant ever linked with counts 1-38, 43 and 55 of the amended charged and charging him as such renders the information and or amended charge as an abuse of court process.

ii. Throughout the proof of evidence, none of the prospective witnesses could point to any act perpetrated by the appellant.

3. ERROR IN LAW:

The learned trial judge erred in law when he held that the application filed by the appellant to quash the charge is belated and incompetent.

PARTICULARS:

i. The decision in OBAKPOLORV. THE STATE 1991 1 NWLR (pt. 165) pg 113 relied upon by the trial judge is totally irrelevant as same was based on the provision of S.167 of the Criminal Procedure Act (C.P.A) which has no comparative provision under the Criminal Procedure Code.

ii. The charge against the appellant is ab initio a nullity and the objection could be raised at any time.

4. MISDIRECTION IN LAW:

The learned trial judge misdirected himself in law when he failed to dispassionately examine the various depositions, statements of witnesses and argument proffered before him in arriving at his conclusion that a prima-face case was made against the Appellant.

PARTICULARS OF MISDIRECTION:

i. The learned trial judge ought to examine and analyze the various statements and depositions of the witnesses before arriving at the conclusion that a prima-facie case was made against the Appellant.

ii. If the true legal meaning of the phase “Prima Facie” is applied to the information and the proof of evidence, the trial judge ought to have come to the conclusion that the entire case is an abuse of court process.

iii. None of the elements of the offences charged in the information is supported by the depositions and statements of the witnesses.

iv. A court of law is bound to pronounce on all issues submitted to it for trial.

RELIEF SOUGHT FROM COURT OFAPPEAL:

Allow the appeal, set aside the ruling of Hon. Salisu Garba J. of the High Court of the Federal Capital Territory Abuja and an order discharging and acquitting the appellant on the ground that the amended charge preferred against him did not disclose any offence against him and the entire amended charge is an abuse of the process of the court.

This preliminary objection cannot stand because at the point that ruling took place and the application of 2nd Appellant and applications of those other accused occurred the matter of facts were not to be addressed and the Appellant was right to tag them errors of law which no special leave need be sought and granted. This objection being fully academic and therefore lacking in merit is dismissed.

I shall move on to the main appeal.

MAIN APPEAL:

For clarity I shall utilize the issues as couched by the Appellant in the determination of this appeal.

ISSUE NO.1:

Whether it is not apparent from the ruling of the trial Court that the application of the Appellant was not properly considered and determined on its individual merit and whether the omission or dereliction has not occasioned injustice to the Appellant.

Learned Counsel for the Appellant stated that it is apparent from the Court’s ruling that the trial Court considered the Appellant’s application together with the six other applications for quashing the charge in a manner that left little or no room for adequate consideration of the individual merits of the Appellant’s case and the legal issues thereon which resulted to injustice to the Appellant. That the ruling failed to show how the statements of the witnesses and proof of evidence linked the appellant to the offences of conspiracy, criminal breach of trust, forgery, fraud and dishonestly receiving proceeds of criminal breach as to establish a prima facie case against him and warrant his standing on trial for them. That the general consideration of the applications robbed the trial Court of the opportunity to answer the crucial questions as to whether from the statements of witnesses and proof of evidence it is deducible for instance that:

(1) The Appellant was a member of the welfare committee that disbursed the alleged money of the Ministry of Health, or that he constituted same.

(2) The Appellant in any manner was involved in the award of contracts or signed any of the contract documents alleged to have been forged.

(3) The Appellant cashed any cheque or authorized the cashment of any cheque resulting from the unlawful contracts and culminating in the breach of trust as a public servant.

(4) The Appellant directly received any cash from the contract sums; or was signatory to any of the accounts of the Federal Ministry of Health etc.

Learned Counsel for the Appellant contended that to answer the above crucial questions, a review by the trial Court of the statements of witnesses presented by the prosecution is not only desirable but a clear analysis would exonerate the Appellant rather than link him to the offences alleged. That it was a serious error on the part of the trial court not to have meticulously considered the statements and return separate verdicts on how they implicate or exonerate the various applicants in the motion to quash the charge. That the dereliction or omission on the part of the trial Court has occasioned injustice to the Appellant in that he would be made to face a needless criminal trial which has far – reaching consequences on his individual liberty. He referred to Oyediran v. The Republic (1967) NMLR 122.

Learned Counsel for the 1st Respondent stated that this Court is bound by its earlier decision arising from the same set of facts that arose from the Lower Court. He cited 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; UBA v. TAAN (1993) 4 NWLR (pt. 287) 378; Aduku v. Federal Republic of Nigeria & 11 ors. (Unreported) CA/ A/265c/08 a case which emanated from the same charge involving the said Aduku and the Appellant before this Court.

In reply on points of law, learned counsel for the Appellant said a painstaking evaluation can be made of the proof of evidence only for the purposes of determining whether a prima facie case exists against the Appellant and this is what this Appellate Court is invited to do simpliciter. He cited Abaeha v. The State (2002) 11 NWLR (pt. 779) 437; Ubanatu v. COP (2000) 2 NWLR (pt. 643) 115 at 117.

Mr. Olorundare SAN further contended that the case of the Appellant is that the statement of his co-accused are insufficient in law to establish a prima facie case against him and the Appellant is therefore entitled to the benefit of all legal presumptions and rules of evidence in deciding his case. He cited Abaeha v. State (supra); Ikomi v. State (1986) 3 NWLR (pt. 28) 340.

This issue 1 in the main calls into question the matter of whether the discretion of the trial Court in considering the applications of Appellant and the other accused together was not compromised. It is trite that in all judicial acts, whether administrative or adjudicative, where the discretion of a Judge is required to do or omit to do anything, that discretion when exercised, is not absolute. It can be challenged if a party feels injured by it or if it will affect a person’s right to freedom, so as to show that the discretion has not been judiciously exercised. See Abaeha v. The State (2002) 11 NWLR (pt. 779) 437 at 484.

For an application to lay information on an indictment to be granted or approved, it is not necessary at that stage to establish the guilt of the accused. All that is required is to show that there is a prima facie case to be tried and the accused is sufficiently linked to be in a situation where an explanation is necessary from him at the trial. Abacha v. The State (2002) 11 NWLR (pt. 779) 437; Ikomi v. The State (1986) 3 NWLR (pt. 28) 340.

When an application is made to quash an indictment on information, it is necessary for the trial Court to attend to such an application dispassionately and rule on it. The best way to do this is to read all the depositions made by potential witnesses and accused persons so as to find if there is a prima facie case for the accused to answer. Abacha v. The State (2002) 11 NWLR (pt. 779) 437 at 486.

The term prima facie is difficult to define precisely. However, facts that clearly reveal a crime and show that the accused person is linked with it may be prima facie evidence that the accused has something to explain at the trial. But this is not always the whole that is needed as the circumstance must indicate. Abacha v. The State (supra) 486.

Prima facie case means that there is ground for proceeding and 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. 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. Thus, if the facts in a deposition whether on oath in preliminary investigation or not on oath in mere statements attached to an information do not disclose a prima facie case the indictment must be quashed. Abacha v. State (2002) 11 NWLR (pt. 779) 437 at 486; Ajidagba v. IGP (1985) SCNLR 60; Okoro v. The State (1988) 5 NWLR (pt. 94) 255.

An indictment is no more than an accusation. Once a person is accused of a criminal offence, he must be tried in a court of law where the complaint of his accusers can be ventilated in public and where he would be sure of getting a fair hearing. No other Tribunal, Investigating Panel or Committee will do. The jurisdiction and authority of the courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or state Government under any guise or pre whatsoever, per Oguntade JSC. Amaechi v. I.N.E.C {2008} 5 NWLR {pt. 1080} 249 at 304 – 305.

An indictable offence is an offence triable on information whether or not under the express provisions of Section 304 (1) of the Criminal Procedure Ordinance. Amaechi v. I.N.E.C (supra); Ejoh v. I.G.P. (1963) 2 SCNLR 102.

The individual applications of the Appellant and the other accused persons each of whom had taken their individual pleas in a criminal proceeding, taken all together and one ruling delivered was not judicially and judiciously handled. Each application must be handled separately even if at the same proceedings and at same sitting, otherwise the advantages which the constitution and the criminal justice system had laid at the foot of an accused had been placed in jeopardy and bringing into operation a miscarriage of justice as the right of each of the accused had not been guaranteed. See Amaechi v. I.N.E.C (2007) 8 NWLR (pt. 1080) 249 at 304.

In the light of the foregoing this issue is resolved positively in favour of the Appellant.

ISSUE NO.2:

Whether the trial Court was right on the balance of evidence in holding that a prima facie case had been established against the appellant as to warrant his being put on trial.

Mr. Olorundare for the Appellant stated that the proof of evidence woefully failed to establish a prima facie case against the Appellant to warrant his being put on trial on the various counts brought against him. That it was necessary for the court below to have examined the depositions and the entire proof of evidence so as to establish whether there is a discoverable linkage between the accused person and the offences alleged regards being had to the ingredients thereof. That since such linkage does not exist herein the charge should be quashed. He cited Ikomi v. The State (1986) 3 NWLR (pt. 28) 340; Abacha v. The State (2002) 11 NWLR (pt. 779) 437; Egbe v. The state (1981) 1 NCR 341; Ohwovoriole v. Federal Republic of Nigeria (2003) 2 NWLR (pt. 803) 176.

Learned Counsel for the Appellant stated on that the Appellant was charged in counts 1, 14 and 55 with conspiracy to do some illegal acts. That for the offence of conspiracy to be established there must exist a common criminal design – a consensus ad idem or agreement by two or more persons to do or omit to do an act criminally. See Erin v. State (1994) 5 NWLR (pt. 346) 535; Aituma v. State (2006) 10 NWLR (pt. 989) 452; Section 96 of the Penal code Act Cap. 532 LFN 1990; Adamu v. State (1986) 3 NWLR (pt. 32) 865.

Mr. Olorundare contended that none of the statements of witnesses has established that there was a consensus ad idem between the Appellant and the other persons he was alleged to have conspired with or that he was linked to any withdrawal of any sum or the award of any contract or the approval of contract documents or forgery of LPOs. That in fact at the material time the subject matter of the allegation arose, the Appellant was on leave for Sallah and only came back after the alleged incident when the EFCC had already stepped into the matter. That it is not enough to associate the Appellant with other accused persons by virtue of his office in order to ground a charge of conspiracy, nor is it enough to state that the appellant was aware of what his superiors did or approved by virtue of his office. Awareness is different from common intention or agreement the latter requiring positive proof. He referred to Aituma v. State (supra) p. 468; Section 113 of the Penal Code Act; Alake v. State (1992) 9 NWLR (pt. 265) 260 at 273; Section 11(1) & (2) of the Evidence Act; Bello v. State (1966) ANLR 217 at 224; Davies v. DPP (1954) AC 378 at 386; Fatilewa v. State (2008) 12 NWLR (pt. 1101) 518 at 528.

Mr. Pinheiro SAN, for 1st Respondent submitted that the duty placed on the trial court in the consideration of an application to quash an indictment is narrow and limited. All the court is enjoined to distill from the proof is that a prima facie case exists i.e a ground for proceeding further. The court is not to determine the guilt or innocence of the accused person by painstaking evaluation of all the proof. That to do that at this very preliminary stage is to proceed on a very faulty premise and delve into matters which will at best be resolved at or during trial as all the court is concerned with at that stage is to determine whether there exists a ground to proceed further. That it need not find a conclusive proof sufficient to pronounce guilt on the accused. He cited Abacha v. The State (2002) 11 NWLR (pt. 779) 437; Ubanatu v. COP (2000) 2 NWLR (pt. 643) 115 at 117.

Learned counsel for 1st Respondent said the Appellant has been sufficiently linked with the offences charged and this court is urged to hold that the proofs of evidence require an explanation from the Appellant at the trial. He said all the arguments of the Appellant about statements of co-accused and therein inadmissibility are irrelevant at this stage as at the stage of the court considering whether to quash an indictment the court is not concerned with admissibility since the stage is premature. That admissibility and/or credibility can only be tested at the time when they are sought to be tendered at trial and not before since it is at the trial stage that the court has to pronounce on the guilt or otherwise of the appellant. He cited Okoro v. State (1988) 5 NWLR (pt. 94) 255 and Abacha v. State (supra).

Mr. Pinheiro stated on that alternatively and in addition to Section 11 (1) and (2) relied on by the Appellant is unworthy of consideration for any other offence charged other than conspiracy. That this Section can only be called in for charges of conspiracy and are irrelevant for other offences charged. He referred to Russell on Criminal 7th Edition p. 191 – 201; 2097 – 98; Nwamara – Encyclopedia of Evidence Law Practice page 185 – 190; Aigbe v. The State (1976) 9 – 10 SC 77; R v. Jonah (1934) 2 WACA 120.

That the stage of the proceedings at the Lower court was still primary and there had not been a trial and so appellant counsel’s reliance on Section 178(1) and/or Section 11(1) & (2) at this stage by the Appellant is at best hasty, ill-timed and too soon.

A submission of no case may properly be upheld when:-

(a) there has been no evidence to prove an essential element of the alleged offence;

(b) the evidence adduced by the prosecution has been so discredited as a result of cross-examination, or is manifestly unreliable, that no reason tribunal could safely convict on it.

The decision to uphold or reject the submission should not depend upon whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit, but upon whether the evidence is such that a reasonable tribunal might convict on it per Tabai JSC Mohammed v. The State (2007) 7 NWLR (pt. 1030) 152 at 161- 162.

In considering whether or not there is prima facie case against an accused, the trial Court is bound to confine itself to the evidence, strictly so called tendered in court. This is because, evidence in Section 286 of the Criminal Procedure Act means no less than that tendered in court and tested or liable to be tested in cross-examination and is quite distinct from statements contained in the proof of evidence. Mohammed v. State (2007) 7 NWLR (pt. 1032) 152 at 162.

In deciding whether a prima facie case exists for the accused to answer in 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 to pick words out of con. The idea of indicting through information is to save time in prosecution by obviating the necessity for a preliminary investigation before a Magistrate. Thus, the entire proofs of evidence, that is statements from relevant persons and perhaps also the suspect must be read and considered, especially more so when the provision for a primary investigation by a Magistrate has been deleted from the Criminal Procedure Law of Lagos State by Law NO.1 of 1979. See also Abacha v. State (2002) 11 NWLR (pt. 779) 437; Ikomi v. The State (1986) 3 NWLR (pt. 28) 340; Egbe v. The State (1980) 1 NCR 341; Adeyemi v. The State (1991) 6 NWLR (pt. 195) 1; R v. Coker (1952) 20 NLR 62.

The purpose of serving proofs of evidence upon an accused person is to give him the opportunity of knowing what the prosecution witnesses will state in court against him. Abacha v. The state (2002) 11 NWLR (pt. 779) 437 at 511; Ede v. State (1977) 1 FCA 95.

The Learned trial Judge ought to have considered the proof of evidence and all necessary documents in relation thereto and made a finding in order to save the time of the Court as to whether or not there was enough upon which the court of first instance can proceed. That is why it was of essence that each application to quash the information or indictment should have been considered individually and not lumped together as he did.

My answer on this issue is positive and in favour of the Appellant.

ISSUE NO.3:

Whether the appellant’s application was belated and incompetent by reason of the Appellant taking his plea before bringing same as held by the trial Court.

Learned counsel for the Appellant said the Appellant’s application to quash the charge was not belated and incompetent for being made after the Appellant had taken his plea. That the trial court muddled up the distinction between an objection to a defect on the face of a charge with an objection to the charge on the state of proof of evidence, That while the former is a complement against the form which is curable by way of amendment, the latter is a complaint against the substance which is incurable and hence the need to quash same, That a defect in form is cured before plea is taken and the same cannot be saved by an application to quash the charge for insufficiency of evidence, He cited R v. Heave (1864) 4 B &. S 947; Archibold Criminal Pleading, Evidence and Practice 2005 Edition; R v. James (1871) 12 Cox 127; Enuma v. State (1997) 1 NWLR (pt. 479) 115 at 121.

Counsel for 1st & 2nd Respondents said any objection to a charge or a formal defect on the face thereof could be taken even after the charge had been read over to the accused and his plea taken, He cited Aduku v. Federal Republic of Nigeria &. 11 Ors. in CA/A/265c/08 (unreported).

In fact on this Issue No, 3 the Learned Senior Counsel for the Respondents, Mr, Pinheiro has answered the question posed and that is that since any objection to a charge or a defect on the face of a charge can be taken at anytime even after the charge had been read and the plea taken, therefore this application the basis of this appeal is not belated. See R v. Heave (1864) 4B & 5S 947; R v. James (187) Cox 127; Enuma v. State (1997) 1 NWLR (pt. 479) 115 at 121; The Unreported appeal of this Court and division in Aduku v. Federal Republic of Nigeria & 11 Ors in CA/A/265c/08.

This appeal is allowed and the decision of the trial Court set aside. However no orders can be made here since the second appeal has not been decided.

SECOND APPEAL:

On the 8th day of April 2008, the 2nd to the 11th Accused/Respondents were arraigned before the trial court presided over by His Lordship SALISU GARBAJ. Sitting at the High Court of the Federal capital Territory, Abuja. The charge was subsequently amended to include the 12th Respondent.

When the charge preferred by the Economic and Financial Crimes Commission (EFCC) was read and explained to the Respondents they all pleaded not guilty. Out of a total of 56 counts, the Appellant charged as the 5th Accused person was indicted in counts 1 – 38, 43 and 55 making it a total of 40 counts out of the 56 counts. The 40 counts against the Appellant fell into five specific headings namely, Conspiracy, Criminal breach of Trust, Forgery, Fraud and dishonestly receiving proceeds of criminal breach of trust.

In support of the case, the prosecution attached to the charge sheets several statements of witnesses numbering seventeen as well as statements of all the Respondents (excepting the first). Statement of other persons who are neither standing trial nor listed as witnesses were also attached. By a motion dated the 14th day of April 2008 and filed the same day, the Appellant sought to quash the counts for which he was charged and be discharged on merit. That the ground of Appellant’s motion is that the offences were not disclosed by the statement of witnesses listed by the prosecution and that when the charges were compared and contrasted with the proof of evidence, that the entire information was an abuse of process of court.

In his ruling delivered on July 31, 2008 the trial Court dismissed the Appellant’s motion along with those of the other accused persons who filed similar motions in what amounted to a consolidated ruling and held that all the accused persons including the appellant had a case to answer. The Appellant on 4th August, 2008 filed a Notice of Appeal against the ruling but before the Appellant could pursue the same, the 1st Respondent/Complainant filed a motion before the trial Court that was to vindicate the position of the appellant and made the appeal unnecessary, That motion dated 16/10/08 supported by a 7 paragraph affidavit and one annexure (an amended charge) marked as Exhibit EFCC 1, the 1st Respondent/Complainant sought an order granting leave to the complainant to amend the charge by deleting the names of the Appellant and two others who were caught up in the consolidated ruling of July 31, 2008.

In his ruling on the complainant’s motion delivered on 21st October 2008 the trial court granted the application and discharged the appellant along with the other two others named. The 1st Respondent later arrested the Appellant and the two others on the order of the trial Judge delivered on 14th November 2008 and the Appellant and the two others in the matter were rejoined in the charge on the basis that the discharge order made on 21/10/2008 was not an acquittal or a discharge or the merit. It is on the basis of this development that the appellant has appealed to this Court on a Notice of Appeal with three grounds dated 24th November 2008. “NOTICE OF APPEAL

(ORDER 16, RULE 3)

To the Registrar,

Court of Appeal, Abuja.

I, HANAFI MOHAMMED being dissatisfied with the ruling of Honourable Justice Salisu Garba sitting at Federal Capital Territory High court of Justice at Maitama, Abuja in motion No. FCT/HC/619/2008 delivered on the 14th day of November 2008 and whose address for service is C/o Okunade Olorundare SAN & Co. Suit 61, 3rd Floor, Dansville Plaza Behind AP Filling Station Apo, Abuja do hereby give notice of appeal against the said ruling against me (particulars of which hereinafter appear) to the Court on the following grounds:

GROUND 1 ERROR IN LAW:

The trial Court erred in law when it held that its order of 21st October 2008 discharging the Appellant from charge NO: FCT/HC/CR/48/2008 was not a discharge on merit and did not amount to an acquittal, thereby occasioning a miscarriage of justice.

PARTICULARS OF ERROR:

i. The order of discharge made by the trial Court on 21st October, 2008 was at the instance of the Complainant and was predicated on her Motion and the Affidavit in Support.

ii. The affidavit in support of the motion disclosed facts touching on the merit of the charges as against the appellant.

iii. The order of discharge was on merit in so far as it was based on the complainant’s affidavit evidence before the Court stating that the complainant has no sufficient evidence to proceed against the appellant.

GROUND 2 ERROR IN LAW:

The trial Court erred in law when it granted the motion of the 1st Respondent to amend the charge and re-arraign the Appellant while at the same time holding the former counsel to the 1st Respondent had the authority to file and move the earlier motion dated 16th October, 2008 leading to the discharge of the Appellant.

PARTICULARS OF ERROR:

i. Since the trial Court held that former counsel to the 1st Respondent acted within his authority to seek and amend the charges via the motion dated and filed on the 16th October, 2008, the basis of the application of the 1st Respondent in motion No: FCT/HC/M/619/2008 had been destroyed.

ii. There was no basis in law for the grant of the motion No: FCT/HC/M/619/2008.

iii. Granting the Motion NO: FCT/HC/M/619/2008 amounted to prosecuting an innocent person for offence not disclosed.

GROUND 3 ERROR IN LAW:

The Court erred in law when it held that motion NO: FCT/HC/M/619/2008 is not an abuse of court process.

PARTICULARS OF ERROR:

i. The Complainant/1st Respondent is bound by it’s earlier position as expressed in the affidavit deposed to by its former counsel when it withdrew the charge against the Appellant and is stopped from presenting a contrary position.

ii. Motion NO: FCT/HC/M/619/2008 has the effect of approbating and reprobating which the court was under a duty to resist.

iii. Motion NO: FCT/HC/M/619/2008 is wanting in bonafide, and is vexatious and oppressive.

RELIEFS SOUGHT FROM THE COURT OF APPEAL:

1. an order SETTING ASIDE THE RULING OF THE honourable Justice Salisu Garba delivered on 14th November, 2008 in so far as it affects me; and
2. AN ORDER dismissing motion NO: FCT/HC/M/619/2008 and holding that my earlier discharge on the 21st October, 2008 amounted to a discharge on the merit.

The Appellant’s Brief was filed on 13/3/09 and a Reply Brief of 18/6/09. The Appellant framed three issues for determination which are as follows:-

1. Whether the Discharge of the Appellant on October 21, 2008 the trial court does not amount to discharge on merit in the circumstances of the case as to preclude the re-arraignment of the Appellant on the same charges and proof of evidence.
2. Whether the 1st Respondent/Complainant’s application withdrawing and re-instating the appellant on the said charges and proof of evidence are not conflicting both in intent and motive, and if they are, whether it is not perverse for the trial court to have granted the latter.
3. Whether Motion NO. FCT/H/M/61/08 is not an abuse of court process in the circumstances of this case, and whether the grant of same has not occasioned injustice to the Appellant.

The 1st Respondent filed their Brief on 19/5/09 and it was deemed filed on 15/16/09. In that Brief the 1st Respondent raised a preliminary objection asking that this appeal be dismissed and/or struck out and the grounds upon which the objection is premised are:

1. This appeal is unknown to law and does not exist defacto or dejure.
2. The jurisdiction of this Honourable court has been incompletely and unsuccessfully invoked.
3. This appeal is a gross abuse of court processes in view of the appeal against the decision dated 31st July, 2008 in Appeal NO: CAlA/55C/09.

The 1st Respondent raised two questions which are:-

1. Whether there is an appeal in law before this court.
2. Whether this appeal constitutes a gross abuse of court process in view of the appeal against the decision dated 31st July, 2008 in Appeal NO: CA/A/55C/09.

In answering these questions learned Senior Advocate for the 1st Respondent, Mr. Pinheiro referred to Order 16 Rule 3 (1), Order 3 Rule 6, 5 (1) and (2) of the Rules of this court 2007 and said flowing from these rules an appellant must deliver to the Registrar copies of the Notice of Appeal. That the Registrar then ensures that a criminal or civil appeal book is opened and certain particulars must of necessity be endorsed particularly the number of the appeal. That an appeal without an appeal number or its own records is a non-appeal. That no two Notices of Appeal can bear the same appeal number such as the present and so a state of confusion has arisen. He stated on that this appeal is incurably defective and ought to be dismissed and/or struck out irrespective of Order 19 Rules 3 (1) & (2). He cited Gomwalk v. Military Administrator Plateau State (1998) 6 NWLR (pt. 555) 653 at 668; 5araki v. Kotoye (1992) 9 NWLR (pt. 264) 156 at 188 – 189; Amaefule v. State (1988) 2 NWLR (pt. 75) 156; African R-Corp. v. JOP Construction (Nig) Ltd. (2003) 13 NWLR (pt. 838) 609.

Learned Counsel for the 1st Respondent stated on that a party has no right to pursue pari passue two processes which will have the same effect at the same time with a view to obtaining victory in one of the processes or in both. This is because the two processes are in law not available simultaneously. He cited Agwasim v. Ojichie (2004) 10 NWLR (pt. 882) 613 at 624, N.V. Scheep v. MUS Avaz (2000) 15 NWLR (pt. 691) 622; Edet v. State (1998) 4 NWLR (pt. 91) 722.

Mr. Pinheiro further submitted that in the determination of the two appeals, the appellant may succeed in one or lose in the other bearing in mind that the facts to be relied upon in either relate to the proof of evidence and a decision in either might entail a consideration of same. That the possibility of two contradictory decisions is therefore real and that should not be allowed. That the abuse inherent in this appeal lay in the duplication of this appeal process to achieve the same outcome.

I find it difficult appreciating the arguments put forward by the Respondent’s Counsel, Mr. Pinheiro as the trial Court having gone ahead to deliver a ruling in the application basis of the first appeal left the Appellant no option than to set about this particular appeal when aggrieved. Also these arguments on the numbering of the Appeals had been earlier dealt with by this Court in open court session and the parties moved on, so to raise the same issues here and now is not maintainable as not brought in good faith and intended to overreach and to constitute this court an appellate court to its own decision. I see no abuse except that by 1st Respondent on the points made and this preliminary objection is overruled as lacking in merit.

MAIN APPEAL:

The 1st Respondent had couched two issues for determination which are:-

1. When will a discharge simpliciter operate to bar future prosecution in respect of the same allegation.
2. Whether the Lower Court was right in granting leave to amend in the circumstances of this case.

I shall utilize the issues as drafted by the Appellant as they seem easier to follow, however I shall treat Issues one and two together.

ISSUES 1 & 2:

Whether the discharge of the Appellant on October 21, 2008 by the trial court does not amount to discharge on merit in the circumstances of the case as to preclude the re-arraignment of the Appellant on the same charges and proof of evidence.

Whether the 1st Respondent/Complainant’s applications withdrawing and re-instating the Appellant on the same charges and proof of evidence are not conflicting both in intent and motive, and if they are whether it is not perverse for the trial Court to have granted the latter.

Learned Counsel for the Appellant, Mr. Olorundare SAN submitted that the discharge of the Appellant on 21st October 2008 by the trial Court at the instance of the prosecution amounted to a discharge on the merit. That the defining features of anything done or said to be done on merit refers to how the thing relates to and affects the rights of the party or parties concerned. That the rights of parties are not determined in the abstract or in vacuum as it must be “contiguous to” or “following upon” some events. He said it is the surrounding facts and sometimes evidence that determine the subjective rights of the parties in a particular case and with the exception of “judgment on the merit”, the facts and evidence need not result from a trial. He cited 6th Edition of Blacks Law Dictionary Page 1088 for definition of “on the merit”, “contiguous to”, “at the time of”, “upon”, “refers to the strict legal rights of the parties”. He also referred to God’s Little Tannery v. Nwaigbo (2005) 7 NWLR (pt. 924) 298 at 332; Cardoso v. Daniel (1986) 2 NWLR (pt.20) 1 at 45; Abacha v. State (2002) 11 NWLR (pt. 779) 43; Mohammed v. State (2007) 7 NWLR (pt. 1032) 152.

Mr. Olorundare contended that from all that transpired in the Court below, the facts and evidence proffered in the affidavit in support of the motion to discharge the order of discharge of the Appellant were not a discretion or favour extended to the appellant by the trial court nor was it a decision based on technical ground devoid of factual/evidential consideration. That it is rather an order giving effect to both the rights of the complainant and that of the Appellant based on the sound factual/evidential circumstances of the case as deposed to in the affidavit of the Respondent/complainant. He cited Amaechi v. State (1993) 8 NWLR (pt. 314) 644; Abidoye v. Alawode (2001) 6 NWLR (pt. 709) 463 at 474; Chief of Air Staff v. Iyen (2005) 6 NWLR (pt. 922) 496; Amaechi v. INEC (2008) 5 NWLR (pt. 1980) 227; INEC v. Action Congress (2009) 2 NWLR (pt. 1126) 524 at 586; Ngige v. Obi (2006) 14 NWLR (pt. 999) 1 at 196 – 197.

Learned Counsel for the Appellant further stated that the point has to be made that EFCC s performing a public duty and to earn the confidence of the generality of the populace it must not act whimsically. That they are the one who voluntarily filed a motion, deposed to an affidavit on a solemn oath that they had “reviewed and reappraised” the charges against the accused persons even after the appellant had filed an earlier motion based on the proof of evidence attached that he had no case to answer and which the court refused. He said the application of the 1st Respondent to have the Appellant discharged constituted an admission under Sections 19 and 20 of the Evidence Act and 1st Respondent cannot approbate and reprobate. He cited Amaechi v. INEC (2008) 5 NWLR (pt. 1080) 227 at 315 – 316; UBA PLC v. B.T.L. Ind. Ltd. (2005) 10 NWLR (pt. 033) 356 at 379 – 381.

Learned Counsel for the Appellant stated on that Motion NO: FCT/HC/M/619/2008 seeking leave for the complainant to amend the charge by rejoining the Appellant in Charge No. CR/48/2008 is in conflict with the earlier motion NO. FCT/ HC/ M/439/2008 upon which the Appellant was discharged such that it is perverse for the trial Court to have granted the latter and re-arraign the Appellant on the same charges and proof of evidence. He referred to the Ruling of the trial Court on the affidavit of prosecuting counsel, James Binang.

Mr. Olorundare SAN on behalf of the Appellant stated that the same state of affairs that prevailed when the first application was moved and granted remains the same state of affairs with no additional charge or proof of evidence when the second application was brought and the complainant is stopped from withdrawing the representations earlier made to the court in its affidavit. He cited Onwu v. Nka (1996) 7 NWLR (pt. 458) 1; NEPA v Ososanya (2004) 5 NWLR (pt.867) 601 at 624.

Learned Counsel for the Appellant said that the trial Court took into account and was guided solely by the facts that trial had not commenced when the discharge was made and that the charge can be amended anytime before judgment. Also that the re-call and re-arraignment of the Appellant amount to injustice because he ought not to face a criminal prosecution where there is no evidence linking him to the offences charged. Again the recall amounts to persecution in an experimental laboratory procedure not to talk of the agony and expense of trial which cannot be compensated for if at the end the court finds that indeed there was insufficient evidence to prosecute the Appellant.

Mr. Pinheiro of counsel for 1st Respondent contended that the Lower Court was on firm ground when it held that 1st Respondent and the two others were discharged but not acquitted. He referred to Blacks Law Dictionary definition of “acquittal”, submitting that the appellant’s situation did not come within the ambit of acquittal since no evidence had been taken. He cited Adeyemi v. State (1991) 6 NWLR (pt. 195) 1 at 27 – 28.; Section 223 (1) of the CPC and Section 36 (9) of the Constitution; Odu’a Investment Co. ltd v. Talabi (1997) 10 NWLR (pt. 523) 1 at 56; BUA v. GMBH (1989) 3 NWLR (pt. 110) 374 at 402.

He further stated that the power to amend a charge is discretionary and that discretion to grant or refuse such application to amend, alter or add a charge is unfettered under Section 208 CPC and the case of Ugwu v. State (2002) 9 NWLR (pt. 711) 90 at 103. That an appellate court will not interfere with the exercise of discretion by a trial court unless it can be shown that the trial court exercised its discretion on wrong principles of law, improperly or a miscarriage of justice will result or has resulted therefrom. He cited General & Aviation Service Ltd. v. Thahal (2004) 10 NWLR (pt. 880) 50; Okene v. Nkem (1992) 4 NWLR (pt. 234) 132; Bamaiyi v. State (2001) 2 NWLR (pt. 698) 435 at 449.

Where a counsel makes a submission that the accused has no case to answer, the meaning is that in law there is no evidence on which, even if believed, the court can convict. Hence the question whether or not the evidence is believed is immaterial and does not arise. Similarly the credibility of the witnesses is not in issue. The governing considerations are that:

(a) an essential ingredient of the offence has not been proved; or

(b) the evidence has been so discredited and rendered unreliable by cross-examination that it would be unsafe to convict on such evidence. Adeyomi v. State (1991) 60 NWLR (pt. 195); Ibeziako v. COP (1963) 1 SCNLR 99; Ajidagba v. I.G.P. (1958) SCNLR 60.

After a successful submission of a no case to answer had been made in respect of a charge, the accused is no longer regarded as charged with so that offence and must be discharged on the merits. See Adeyomi v. State (1991) 6 NWLR (pt. 195); Marke v. I.G.P. (1957) SCNLR 53.

A successful submission of a no-case to answer is a confirmation that there was insufficient evidence in respect of the offence charged and that it would be unconstitutional to call upon the accused to make his defence. Adeyemi v State (supra) 38.

A discharge following a no case submission under Section 286 of the Criminal Procedure Act is tantamount to an acquittal. Mohammed v. State (2007) 7 NWLR (pt. 1032) 152 (SC); Nwali v. Inspector General of Police (1956) 1 ERNLR 1; IGP v. Marke (1957) SCNLR 307; In Enuma v. State (1997) 1 NWLR (pt. 479) per Akintan JCA (as he then was).

“1. It is not in doubt that a Judge to whom an application for consent to file an information charging any person with an indictable offence under Section 340(2) of the Criminal Procedure Law has a discretion to grant or refuse the request. He is also required to exercise such discretion judiciously and judicially.

2. It is a requirement of the law that among what should accompany an application to a Judge for his consent to file an information are proofs of evidence of the witnesses whom the prosecution intends to call in support of the charges.
3. Although it is not specifically provided that the Judge must be satisfied that a prima facie case must be made out in the proofs of the evidence supplied along with the application for the Judge’s consent before he gives his required consent, this is definitely a requirement placed on that Judge if his decision in the matter could pass the required test of being judiciously and judicially made.
4. The purpose of prescribing for a Judge’s consent to file an information is to ensure that an innocent person is not unnecessarily subjected to the rigors of having to go through a trial for an offence of which there is totally no evidence to warrant him being put on trial. Thus, if a Judge wrongly gives his consent to the preferment of an information against an accused person who has not in any way been implicated in the proofs of evidence supplied along with the application for his consent, such a decision would be regarded as a discretion not made judiciously. An appellate court will definitely be acting within the law if it quashes such information. Ikomi v. State (1986) 3 NWLR (pt. 28) 340”.

A prima facie case is such as will prevail until contradicted and overcome by other evidence. A case which has proceeded upon sufficient proof to that stage where it will support the finding if evidence to the contrary is disregarded Ubanatu v. Commissioner of Police (2000) 2 NWLR (pt. 643) 115.

A prima facie case means a ground for proceeding. In other words, that something has been produced to make it worthwhile to continue with the proceedings. However, it is not the same as proof which comes later when the court has to find whether the accused is guilty or not guilty. The evidence discloses a prima facie case when it is such that if uncontradicted and if unbelieved it will be sufficient to prove the case against the accused. Ubanatu v. Commissioner of Police (2000) 2 NWLR (Pt. 643) 115; Ajidagba v. Inspector General of Police (1958) SCNLR 60; Onwu v. Nwosu (1989) 4 NWLR (Pt. 113) 24, Ikomi v. State (1986) 3 NWLR (pt. 28) 340; Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (pt. 523) 1 at 51.

Learned counsel for the Appellant had contended that the 1st Respondent waived their right to continue with the prosecution and the definition of waiver has to be gone into from decided authorities to ascertain whether or not a waiver properly so called had taken place to debar further prosecution of the Appellant, and it is defined as follows:-

1. Waiver is the intentional and voluntary surrender or relinquishment of a known principle and a right. It, therefore implies a dispensation or abandonment by the party waiving of a right or privilege which, as his opinion he could have insisted upon.
2. The guiding principle to determine whether the provisions of an enactment can be waived is to determine whether such provisions are directory or mandatory. A breach of mandatory enactment renders what has been done, null and void.

But if statute is merely directory, it is immaterial, so far as it relates to the validity of the thing to be done, whether the provisions of the statute are accurately followed or not. An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. I place reliance on the case of: Ariori v. Elemo (1983) 1 SCNLR 1.

An Appellate Court is not at liberty to substitute its own exercise of discretion for the discretion already exercised by the trial Court. In other words, an appellate court ought not to reverse an exercise of discretion by a trial court merely because it would have exercised the original discretion in a different way. But if the appellate court reached a clear conclusion that there has been a wrongful exercise of discretion by the trial Court because it did not give due weight to relevant consideration upon which judicial discretion is exercised, the appellate court will interfere with the exercise of discretion by the trial Court. General & Aviation Services Ltd. v. Thahal (2004) 10 NWLR (pt. 880) 50 at 77 – 78; 90 – 91 (SC); Okere v. Nkem (1992) 4 NWLR (pt. 234) 132; Oyeyemi v. Irewole Local Government (1991) 1 NWLR (pt. 270) 462.

I would refer to the deposition of the prosecuting counsel:-

“AFFIDAVIT IN SUPPORT OF MOTION:

1. I am Counsel assigned with the prosecution of this case and by virtue of my official position, I am conversant with the facts of this case.
2. I have the consent and authority of the Complainant/Appellant to depose to this affidavit.
3. I know as a fact that:

(i) All the Accused Persons/Respondents are standing trial before this Honourable Court on allegations of Conspiracy, Forgeries, Using as genuine documents and Criminal breach of Trust by a Public Servant.

(ii) This Honourable Court on the 31st of July 2008 delivered its Ruling on the various applications brought by all but the 3rd Accused Persons/Respondents.

(iii) The counsel for the Complainant/Accused and the legal team assigned the prosecution of this case embarked on several meetings; which reviewed and reappraised the charges against each Accused Person/Respondents vis-a-vis the Proof of Evidence and the Additional Proof of Evidence filed in this case.

(iv) Following the averment in sub paragraph (iii) of the affidavit, the Complainant/Applicant resolved to drop the charges against (a) Architect Gabriel Aduku; (b) Professor Simon Ogandi and (c) Hanafi Mohammed, who were respectively charged as the 3rd and 5th Accused persons/Respondents, in the interest of justice.

4. The Complainant/Applicant has accordingly prepared an Amended Charge to reflect the proposed exclusion of the names of the 2nd, 3rd, and 5th Accused Persons/Respondents and re-numbering of the remaining accused Persons/Respondents on the Amended Charge. A copy of the said Amended Charge is here shown to me and marked Exhibit EFCC 1.
5. The other Accused person;, Respondents will not be prejudiced if this application is granted.
6. This Honourable Court has the Jurisdiction to grant all the reliefs sought in this application.
7. I deposed to this affidavit in good faith and in the interest of justice.

(SIGNED)

DEPONENT

Sworn to at the High Court of the

Federal Capital Territory, Abuja

this 17th day of October, 2008.

Before me:

(Signed)

Commissioner for Oaths, 17/10/2008.

Certified True Copy

High Court of Justice, Abuja, FCT, Abuja, 27/1/2009”.

I see no need to interfere with the discretion exercised by the trial High Court as the circumstances of the case justified that path trod by the learned trial court when he discharged the Appellant on 21st October 2008 and ordering that he be deleted from the charge. There being nothing perverse. I see in the handling by the trial court in respect of this particular issue. I find favourably for the Appellant, since the prosecution successfully and totally waived their right to further proceed. See Ariori v. Elemo (supra).

ISSUE 3:

Whether Motion No: FCT/H/M/61.9/1008 is not an abuse of Court process in the circumstances of this case, and whether the grant of same has not occasioned injustice to the Appellant.

Learned Counsel for the Appellant stated that it is an abuse of Court process to seek the rejoinder of the Appellant on the same charge and proof of evidence after he was discharged at the instance of the prosecution is an abuse of court process and ought to have been dismissed by the trial Court. He cited Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (pt. 966) 205 at 220; Ntuks v. NPA (2007) 13 NWLR (pt. 1051) 392 at 419; Bloom field’s case (1997) 1 Cr. App. Rep. 135; Abuse of Process in Criminal Proceedings 3rd Edition by David Young et al; R v. Wyatt (1997) 3 Archibold News 2; DPP v. Taylor (2004) EWHC 1554; R v. Abu Hamza (2007) 1 Cr. App R. 27 at 59.

Learned Counsel for the 1st Respondent said the foreign authorities cited by the Learned Counsel for the Appellant cannot avail them since those authorities are based on legislations that do not have their counter parts here. That there was no abuse of court process by the prosecution. I would want to quote my Lord Mohammed JSC:-

“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite varieties and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognized that the abuse of the process may be in both a proper or improper use of the judicial process in litigations. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effectual administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. Thus, the multiplicity of actions on the same matter between the same parties, even where there exists a right to bring the action, is regarded as an abuse. The abuse lied in the multiplicity and manner of the exercise of the right, rather than the exercise of the right per se. See Ogoejeofo v. Ogoejeofo (200) 3 NWLR (pt.966) 205 at 220; 5araki v. Kotoye (1992) 9 NWLR (pt. 264) 156. Edet v. State (1998) 4 NWLR (pt. 91) 722 per Uwais JSC (as he then was), stated:

“1. An abuse of process always involves some bias, malice, some deliberateness, some desire to misuse or pervert the system. Amaefule v. State (1988) 2 NWLR (pt. 75) 156.

2. When a charge is pending in a court, to commence a new charge in another court in respect of a more serious offence from acts arising from the same events is not only undesirable but psychologically oppressive.

However, this is not sufficient to constitute an abuse of the judicial process or a violation of any position of the Constitution”.

The Court is under a duty by virtue of the provisions of Section 286 and 287 (1) of the Criminal Procedure Law to discharge an accused if the prosecution at the close of its case has not proved the essential ingredients of the offence. Okoro v. State (1988) 5 NWLR (pt. 93) 255; Ajidagba v. Inspector General of Police (1958)3 FSC 5.

An accused should not be asked to defend himself if the evidence is so manifestly unreliable having been destroyed by cross-examination of the witness that no reasonable tribunal will convict on that evidence Okoro v. State (1988) 5 NWLR (pt. 93) 255.

Therefore a submission of no case is wrongly overruled if when the ruling was made calling upon the accused to the evidence presented by the prosecution was not sufficient to require the accused to make his defence. Okoro v. State supra.

The matter of submission on a no case under Section 286 and 276 Criminal Procedure Law after the prosecution’s case does not arise here since the trial had not commenced.

In the determination of whether an abuse of the judicial process has occurred, the Court will consider the content of the first process vis-a-vis the second one to see whether they are aimed at achieving the same purpose. Agwasim v. Ojiechie (2004) 10 NWLR (pt. 882) 613 at 624 – 62S per Tobi JSC. Agwasim & anor v. David Ojiechie (2004) 10 NWLR (pt. 882) 613 at 624 (Supreme Court) per Tobi JSC. 1.

A litigant has no right to pursue pari passu two processes which will have the same effect in two courts at the same time with a view to obtaining victory in one of the processes or in both. The two processes are in law not available to the litigant simultaneously. Only one is available and the choice of which of the two is exclusively that of the litigant. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a con by judicial process where the parties place on the table of justice their different position clearly, plainly and without tricks.

2. The abuse of judicial process is the improper use of the judicial process by a party in litigation. It may occur in various ways such as:

(a) instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue; or (b) instituting a multiplicity of actions on the same matter between the same parties;

(c) instituting different actions between the same parties simultaneously in different courts even though on different grounds; or

(d) where two similar processes are used in respect of the exercise of the same right such as a Cross-Appeal and a Respondent’s notice.

Okorodudu v. Okorodudu (1977) 3 SC21; Oyegbola v. Esso West African Inc (1966) 1 All NLR 170; Harriman v. Harriman (1989) 5 NWLR (pt. 119) 6; Anyaduba v. N.R.T.C. Co. Ltd. (1990) 1 NWLR (pt. 127) 379; Jadesimi v. Okotie- Eboh (1986) 1 NWLR (pt.16) 264; Alade v. Alamuloke (1988) 1 NWLR (pt. 69) 207; Saraki v. Kotoye (1992) 9 NWLR (pt. 264) 156; The Vessel “Saint Roland” v. Osinloye (1997) 4 NWLR (pt. 500) 387; Messrs N. V. Scheep V. M.V.S. Araz (2000) 15 NWLR (pt. 691) 622.

There is no doubting the fact that the Attorney General of the federation derives his powers under Section 174 of the Constitution as an agency of the Federal Government and the court cannot control the manner he exercises those powers so conferred. This right or powers of the Attorney General apply to whoever is acting on his behalf as the prosecuting counsel, Mr. Binang is in this case but that does not exclude when those powers are improperly exercised and the discretion of the trial court thereby wrongly applied as has taken place. The supporting affidavit of the prosecutor, Mr. Binang upon which the learned trial judge discharged the Appellant was clear and explicit and therefore the reversal of that position by Aso Larrys Peters which later without a strong support can only come within the definition of an abuse of court process which cannot be allowed. It is not for a prosecutor to toy whimsically with the right and liberty of an accused, blow hot and cold at will while an accused who is innocent until proved guilty is at all times hanging on a bare thread of hope while waiting whatever fleeting fancy takes the prosecutor or prosecuting counsel. That certainly is not how a public duty sensitive as the administration of the criminal justice system is should be applied in view of the guaranteed rights of the accused. See Attorney General Ondo State v. Attorney General Federation (2002) 9 NWLR (pt. 772) 222 at 419.

On the 29th September, 2009, a counsel with the Economic and Financial Crimes Commission, Aso Larrys Peters deposed to an affidavit in support of the Motion to have the charge without the names of Appellant and the two others to be further amended including those names. For a better appreciation of the gymnastics displayed in this prosecution I shall recast the averments which are:-

“AFFIDAVIT IN SUPPORT:

I, Aso Larrys peters, Male, Christian, Nigerian, a staff of the Economic & Financial Crimes Commission (hereinafter referred to as “the Commission”) do hereby make and state as follows: 1. That I am a Counsel in the employment of the Commission and by virtue of my position, I am conversant with the facts of the case.

2. That I have the consent and authority of the Complainant/ Applicant to depose to this affidavit.
3. That I am informed by the Deputy Director, Legal & Prosecution Unit of the Commission between the official hours of 8 am and 5 pm in his office at No.1, Ibrahim Taiwo Street, Aso Villa, Abuja in the course of my discussion with him on this matter and I verily believe him that:

a. In the course of the trial in this case, the Counsel representing the Complainant/ Applicant in this case, James Bianag Esq. vide motion dated 16th October 2008 sought and got the leave of this honourable court to amend the initial Charge filed in this matter.

b. That as a result of the amendment, the names of the proposed 2nd, 3rd and 5th Accused/Respondents, viz. Gabriel Aduku (M); (2) Professor Simon Ogandi (M); and (3) Hanafi Mohammed (M) respectively were deleted.

c. That at the time when he prepared, filed and argued the motion for the amendment, he acted without the authority of the complainant, lawful instructions from his employers and in fact acted contrary to the avowed policy of the Commission.

d. That prior to the filing of the initial Charge, the commission had taken a firm, clear and unequivocal decision pursuant to the advice of its Legal & Prosecution Unit to prosecute all the accused persons including the 2nd, 3rd and 5th Respondents since, based on the report of investigation, there was sufficient materials that showed prima facie criminal cases against all the accused persons.

e. That the Complainant/ Applicant was further emboldened that it had a good case against all the accused persons when, pursuant to applications to quash the initial Charge by majority of the accused persons, the Honourable court ruled that the proof of evidence in this case established prima facie criminal case against the accused persons in the initial Charge.

f. That the Complainant/ Applicant had concluded its investigation in the matter before it filed the initial Charge and that there was no new facts to warrant the discontinuance of prosecution against the 2nd, 3rd and 5th Accused/ Respondent.

That based on the proof of evidence, sequence of events the Complainant’s prosecution strategy, the discontinuance of prosecution against the 2nd, 3rd and 5th Accused/Respondents could jeopardize the entire case and/or the prosecution of the substantive matter.

h. That the simultaneous prosecution of the 2nd, 3rd, and 5th Respondents together with the 1st,4th, 6th, 7th, 8th, 9th, 10th, 11th and 12th Accused/Respondents is quite vital to the case of the prosecution as well as necessary for the just determination of the matter.

i. That there is therefore the need to amend the Charge in this case by the inclusion of the names of:

(1) Gabriel Aduku (M)1;

(2) Professor Simon Ogandi (M); and

(3) Hanafi Mohammed (M)

To be respectively charged as the 2nd, 3rd and 5th Accused persons.

j. That the proposed amended Charge has been shown to me and are herein marked as Exhibits EFCC 1A.

4. That the Accused/Respondents will not be prejudiced by the grant of the Application.
5. That the amendments sought to be made are for the purposes of fairness to all the accused persons, the just determination of the real issues in controversy between the parties and proper adjudication of the case.
6. That it will be in the interest of justice to grant this application.
7. That I make this oath in good faith believing same to be true and in accordance with the Oaths Act, as amended.

(SIGNED)

DEPONENT

Sworn to at the High Court’s Registry,

Federal Capital Territory, Abuja this 27th day of October, 2007.

Before me:

(SIGNED)

COMMISSIONER FOR OATHS., 29/10/2008.

Certified True Copy

Federal Court of Justice, Abuja, 27/1/2009″.

Abuse of process of court is a term generally applied to proceedings which is wanting in bona fide and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process. An abuse of process always involves some bias, malice, some deliberateness, and some desire to misuse or pervert the system. African Re Corp. v. JDP Construction (Nig.) Ltd. (2003) 13 NWLR (pt. 838) 609 at 635; Amaefule v. State (1988) 2 NWLR (pt. 75) 156; Edet v. State (1988) 4 NWLR (pt.91) 722.

There is said to be an abuse of the process of the court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. African Reinsurance corporation v. IOP Construction (Nig.) Ltd. (2003) 13 NWLR (pt. 838) 609 at 635 – 636; Okafor v. Attorney General Anambra State (1991) 6 NWLR (pt. 200) 659; NV Scheep v. MV “S. Araz” (2000) 15 NWLR (pt. 691) 622.

It is evident that by the fresh motion to have the Appellant and two others re-arrested and re-arraigned, which motion was supported by the affidavit of Aso Larrys Peters Esq., which deposition impugned the integrity of the earlier one supporting the motion upon which Appellant and the two others were discharged on 21st October 2008 without fresh evidence or something substantial upon which this new one was to hang. That earlier discharge by the learned trial Judge remained valid while the attempt by the new counsel, Aso Larrys Peters came under the ambit of an abuse of court process. Also the prosecutorial powers within which to amend alter a charge at will and at any time before judgment did not avail the prosecution here and they cannot invoke Section 208 Criminal Procedure Code to help them. This reckless show of power imbued with persecution which is alien to our adjudicatory processes and procedures cannot be supported. Therefore the learned trial Judge entertaining this invalid motion and proceeding to grant it on 14th November 2008 a favourable response was an exercise of a discretion improperly utilised and injudiciously affected.

It would not stand as this court is within its powers to interfere and set the records straight and defining the futile act of the trial High Court in this second motion. See General 8r. Aviation Services Ltd. v. Thahal (2004) 10 NWLR (pt. 880) SO at 77; Okene v. Nkem (1992) 4 NWLR (pt. 234) 132.

This Issue No.3 has been answered in Issues 1 and 2 and that is the application and granting therefore to rejoin the Appellant in the Charge is an abuse of court process and on the part of the trial Court that action by it has occasioned a miscarriage of justice.

This appeal succeeds and is allowed as the discharge of the Appellant in the prevailing circumstances operated as that on the merit and thus synonymous with an acquittal. I therefore set aside the decision of the trial Court to have the Appellant rejoined in the charge. I order that the earlier discharge of the Appellant is a discharge and acquittal.

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Other Citations: (2009)LCN/3453(CA)