Alhaji Baba Gana Abbas Dawa & Anor. V. Federal Republic Of Nigeria (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE.ANYANWU J.C.A.

The 1st and 2nd Appellants in this case were the Chairman and Treasurer respectively of Damboa Local Government council. They were charged as 1st and 2nd accused persons in a 4 count charge for conspiracy et al. I will recap the 4 counts for clarity:

“(1) That you Alhaji Baba Gana Abbas Dawa (M) and Alhaji Abatcha Ali (M) on or before 14th April, 2005 or thereabout at Damboa Local Government Area, Borno State within the jurisdiction of the Honouroble Court, being public officers did conspire with each other to commit on offence under Corrupt Practice and Other Related Offences Act 2000 to wit: by using your positions as Chairman and Treasurer of Damboa Local Government Council respectively to confer corrupt advantage, the sum of N6,000,000 (Six Million Naira) property of Damboa Local Government Council, upon yourselves, which sum of money being part of N7,000,000, (Seven Million Naira) approved by Damboa Local Government Council to Galtis Water Services as mobilization fees for drilling of boreholes of Azir village of Damboa District and Ngwalimiri village of Mulgwi District respectively and you thereby committed an offence contrary to Section 26(1)(c) and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act 2000.

(2) That you Alhaji Baba Gana Abbas Dawa (M) and Alhaji Abatcha Ali (M) on or before 14th April, 2005 or thereabout at Damboa Local Government Area, Borno State within the jurisdiction of the Honourable Court, being public officers used your positions as Chairman and Treasurer of Damboa Local Government Council respectively to confer corrupt advantage, the sum of N6,000,000 (Six Million Naira) property of Damboa Local Government Council , upon yourselves, which sum of money being part of N7,000,000 (Seven Million Naira) approved by Damboa Local Government Council to Goltis Water Services as mobilization fees for drilling of boreholes of Azir Village of Damboa District and Ngwolimiri village of Mulgwi District respectively and you thereby committed an offence contrary to and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act 2000.

(3) That you Alhaji Baba Gana Abbas Dawa (M) and Alhaji Abatcho Ali (M) on or before 14th April, 2005 or thereabout at Damboa Local Government Area, Borno State within the jurisdiction of the Honourable Court, being public officers did conspire with each other to commit an offences under Corrupt Practices and Other Related Offence Act 2000 to wit: being public officers charged with the Management of property belonging to Damboa Local Government Council, knowingly furnished false return by raising payment voucher No. 103 for the sum of N7,000,000 (Seven Million Naira) and entered the same sum of money in the cash book as mobilization fee released to the contractor (Galtis Water Services) for boreholes drilling whereas only the sum of N1,000,000 was released to the said contractor and you thereby committed an offence contrary to Section 26(1)(c) and punishable under Section 16 of the Corrupt Practices and Other Related Offences Act 2000.

(4) That you Alhaji Baba Gana Abbas Dawa (M) and Alhaji Abatcha Ali (M) on or before 14th April, 2005 or thereabout at Damboa Local Government Area, Borno State, being public officers charged with the management of property belonging to Damboa Local Government Council, knowingly furnished false return by raising payment voucher No. 103 for the sum of N7,000,000 (Seven Million Naira) and entered the same sum of money in the cash book as mobilization fee released to the contractor (Galtis Water Services) for boreholes drilling whereas only the sum of N1,000,000 was released to the said contractor and you thereby committed on offence contrary to and punishable under Section 16 of the Corrupt Practices and Other Related Offences Act 2000”.

Briefly the 1st and 2nd Appellants during their tenure as Chairman and treasurer respectively of Damboa Local Government Council awarded a contract for the drilling of two boreholes of Ngwalimiri and Azir villages to Galtis Water Services for the sum of Twelve (12) Million Naira. A mobilization fee of Seven (7) Million Naira was to be paid to the contractor who issued a Receipt for same but was alleged to have been paid only One (1) Million Naira.

The investigation of these alleged offences charged was as a result of two petitions written against the Appellants by one Comrade M.A. Shettima to ICPC on gross and reckless financial mismanagement. After a full trial, the Appellants were found guilty and sentenced on the first three counts to a total of 7 years running concurrently.

The Appellants being dissatisfied filed their notice and 14 grounds of appeal.

The Appellants filed their Appellants’ brief on 25th September 2009 and articulated 6 issues for determination. There are as follows:

“In the humble view of the Appellants the following issues are relevant for the determination of this Appeal. They are:

1. Whether the Trial court was right in the pre-emptory manner it disregarded Exhibits EA16, EA17 and EA18 and the testimony of DW2 thereon, and its conclusion that they were irrelevant to the issue before the Court?
2. Whether the Trial Court properly evaluated the evidence adduced by the parties before coming to the conclusion that the mobilization fee N7,000,000.00 was not fully paid to Galtis Water Services?
3. Upon a proper consideration of Exhibit EA1 and EA2 and evidence of DW2, was the Trial Court not in error when it found –

That the 1st Appellant’s evidence that he personally sourced for the sum of N6 Million to pay for the mobilization fee was fabricated lie simply because that information was not contained in Exhibit EA 12 being the statement of the 1st Appellant to ICPC and that there was no Documentary and corroborative evidencing to prove same?

4. Whether the trial Court did not completely misrepresent and/or misapprehend the testimonies of DW1 and DW2 in support of their defence thereby making some findings that were of variance and inconsistent with the evidence before the Court?
5. Whether the trial Court was right when it found and concluded that personal loan granted by the 1st Appellant to finance the Local Government project without approval from the Council amounted to illegality and/or corrupt practice?
6. Whether the charges, conviction and sentence of the Appellants under a non-existence law is not all together null and void?”

The Appellants’ Counsel during his oral submissions discontinued with his arguments on issue 6 and was therefore struck out.

The Respondent filed its Respondent’s brief on 17th May 2010 and deemed properly filed the same day. In it the Respondent articulated 4 issues for determination as follows: