Federal Republic Of Nigeria Vs Senator Adolphus N. Wabara & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD , JSC 

This is an appeal against the judgment of the Abuja Division of the Court of Appeal, hereinafter referred to as tire court below, in appeal No. CA/A/7/C/2006 delivered on the 1st day of June, 2010 allowing the appeal of the respondents herein against the decision of the High Court of the Federal Capital Territory Abuja, hereinafter referred to as the trial court, in suit No. FCT/HC/CR/31/2005. Being dissatisfied with the judgment, the respondent at the court below, now appellant herein, has appealed to this Court on a Notice of appeal containing eight grounds. I shall summarise at once the facts of the case that brought about the appeal.At the trial court, following its application the appellant was granted leave to prefer a charge against the respondents and four others. Attached to the application are (a) a fifteen count charge against the accused (2) Names and addresses of witnesses and (3) proof of evidence of twenty one witnesses.

The 1st, 2nd respondents and others are alleged to have demanded the sum of fifty million naira from the 3rd respondent, the then Minister of Education, to secure the easy passage of the 2005 budgetary allocation of 3rd respondents ministry in the same way the respondents assisted in passing the 2004 allocation. The 2nd respondent is alleged to have received a further sum of five million naira for facilitating the understanding between both sides.

The trial court obliged the appellant the leave on the 12th of April, 2005. Thereafter, the respondents having pleaded not guilty were admitted to bail. By 13th May, 2005, the accused persons through their respective counsel, applied to the trial court praying that the leave granted the appellant to prefer the charge against them be set-aside and the charge preferred against them quashed. They further urge that they be discharged on the grounds, inter alia, that since they had been tried and convicted by the President of the Federal Republic of Nigeria for the same offences it would be unjust to retry them for same; that the proof of evidence attached to the appellants application does not disclose any prima facie case against them and that some of the offences in the counts are not defined or provided for by any written law. The applications were stoutly opposed by the appellant through its various counter affidavits. In a well considered ruling, the trial court in dismissing the respondents consolidated applications, concluded at pages 385 to 386 thus:-

‘It is clear for the foregoing appraisal that the provision of rule 3 (2) (a) of the 1970 Rules were complied with in bringing or preferring the charges against the accused persons/applicants.

Failure to state a material ingredient of an offence is certainly fatal to the prosecution but that has to be taken at the trial not at the stage of preferring a charge and it is so held. The same reasoning goes for possibility of duplicity. It is also an issue that could be taken as part of the defence of the accused persons at the trial.

The 7th accused person having been brought along Math the 1st – 6th accused persons could be tried with them. There is no law that forbids such a composition.

If section 53 (1) is unconstitutional, it could as well be challenged on that ground at the trial or even address. It is not a matter having to do with referral of charge (s) against the accused persons/applicant.

By these reasoning the accused persons herein have been properly and duly arraigned and it is so held. Tne applications of all the accused persons/applicants fail on these grounds and are accordingly hereby dismissed.’

Five of the seven accused persons whose applications are dismissed by the trial court appealed against the courts ruling to the court below. Of the five, two, Senator Emmanuel Okpede and Senator Badamasi Maccido, have died. The appeals of the surviving three, the respondents before us, were consolidated. In allowing the appeal, the court, inter-alia, made the following findings:-

(a) That the trial court is wrong to have granted the appellant leave to prefer a charge against the respondent when the application is not accompanied by statements on oath disclosing sufficient evidence of the commission of any offence.

(b) The application is not supported by statements of ‘star witnesses’ such as Senator Chris Adigbije whose three statements are not attached to the application.

(c) The accused had not in any way been implicated in the proofs of evidence accompanying the application.

(d) That there was intention to prejudice the minds of the public including the judge to whom the National broadcast of the President was particularly directed at.