Emmanuel Egharevba V Federal Republic Of Nigeria & Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal Holden at Benin city in appeal No. CA/B/117/2006 delivered on the 4th day of March, 2010 dismissing the appeal of the Appellant/2nd accused on a no case submission.

The facts of the case are the following;

Appellant with three others were charge to the Edo state High Court Benin city for a 9 count charge to wit-

”Statement of Offence 1st Count

Furnishing false statement contrary to Section 16 of the Corrupt Practices and other Related Offences Act 2000.

Particulars of offence

Prof. Austin Ohasohan on or about 15th November, 2001 at Benin City being an officer charged with the use of property belonging to the University of Benin Teaching Hospital, knowingly furnished false statement in respect of the sum of N1,150,000. 00 purportedly expended for the purpose of media coverage of the Minister of Health’s official visit.

Statement of Offence 2nd Count

Abetment contrary to Section 26(1) (c) of the Corrupt Practices and other Related Offences Act, 2000.

Particulars of Offence

Emmanuel Egharevba around November, 2001 at Benin

city did abet the furnishing of false statement by issuing a letter and receipt to Prof. Austine Obasohan in respect of the sum of N1,150, 000. 00 purportedly expended for media coverage of Minister of Health’s official visit…

Statement of Offence 3rd Count

Furnishing false statement contrary to Section 16…

Particulars of Offence

Sunday Idubor on or about 30th May, 2002 at Benin City being an officer charged with the use of the University of Benin Teaching Hospital funds did knowingly furnished a false statement in a precious Palm Royal Hotel Ltd. Receipt for the sum of N321,790. 00 as amount purportedly spent on Hotel accommodation for the entourage of the minister of Health who was on a visit to Benin City..

Statement of Offence 4th Count

Furnishing false statement contrary to Section 16…

Particulars of Offence

Professor Austine Obasohan and Sunday Idubor sometime in November, 2001 at Benin City being officers charged with the use of the University of Benin Teaching Hospital funds knowingly furnished false return in respect of the sum of N28, 210. 00 (Twenty eight thousand two hundred and ten Naira) purportedly spent by Prof. Obasohan as out-of-pocket

expenses and other expenses during the visit of the Minister of Health to Benin City on 16th November, 2001.

Statement of Offence 5th Count

Furnishing of false statement contrary to Section 16…

Particulars of Offence

Professor Austine Obasohan sometime in November, 2001 at Benin City being an officer charged with the management of the University of Benin Teaching Hospital funds knowingly made false statement in an application for the sum of One million as additional expenses purportedly meant for the visit of the Minister of Health to Benin City…

Statement of Offence 6th Count

Conspiracy to commit an offence contrary to Section 26(1) (c) and punishable under Section 16 of the Corrupt Practices and Other Related Offences Act, 2001.

Particulars of Offence

Professor Austine Obasohan, Emmanuel Egharevba, Sunday Idubor, Ifeyinwa Nneka Okolue, on or about May 2002 at Benin City being officers charged with the use of funds of the University of Benin Teaching Hospital conspired among themselves to furnish a false statement in respect of the sum of N1,966,950. 00 advanced to them to cover the visit of the Minister of Health to Benin City..

Statement of Offence 7thCount

Furnishing false statement contrary to and punishable under Section 16 of the Corrupt Practices and Other Related Offences Act 2000

Particulars of Offence

Professor Austin Obasohan, Emmanuel Egharevba, Sunday Idubor and Ifeyinwa Okolue on or about May, 2002 at Benin City being officers charged with the use of the funds of the University of Benin Teaching Hospital knowingly furnished a false statement retiring the sum of N1, 965, 950. 00 purportedly spent by the to cover the visit…

Statement of Offence 8th Count

Conspiracy to commit an offence contrary to Section 26 (1) (c) and punishable under Section 16 Corrupt Practices Act, 2000

Particulars of Offence

Prof. Austin Obasohan and Ifeyinwa Nneka Okolue on or about April, 2002 at Benin City being officers charged with the use of University of Benin Teaching Hospital funds knowingly conspired with each other to furnish false statement in respect of the sum of N300,000. 00 purportedly spent by them for the purpose of gift items during the visit of the Minister of Health to Benin City on 16th November, 2001.

Statement of Offence 9th Count

Furnishing false statement contrary to and punishable under Section 16

Particulars of Offence

Ifeyinwa Nneka Okolue on or about April, 2002 at Benin City being an officer charged with the use of University of Benin Teaching Hospital funds knowingly furnished false statement in respect of the sum of N300, 000. 00 purportedly spent by her for the purchase of gift items during the visit of the Minister of Health to Benin City on 16th November, 2001”.

The 1st appellant was the Chief Medical Director of the University of Benin Teaching Hospital (UBTH) at the timeof the Visit of the Minister of Health Prof. A.B.C Nwosu to Benin City to attend the wedding ceremony of the daughter of Chief TonyAnenih on the 16th day of November, 2001. The sum of two million naira was approved, disbursed and retired as expenditure during the visit though only the sum of N34,050. 00 was given to the supervisor of the UBTH Guest House when the Minister and his entourage spent the night.

Subsequently, a petition dated 2nd April 2002 and titled “Carnival of Frauds in University of Benin Teaching Hospital Benin City” was addressed to the Chairman of Independent Corrupt Practices and Other Related Offences Commission (ICPC) by the Chairman, Senior Staff

Association, Chairman and Secretary of Medical and Health Workers Unioin of Nigeria in UBTH. As a result of the above, a team of investigators were dispatched by ICPC to UBTH to investigate the allegations in the petition. The result of the investigation confirmed that the claims in the retirement paper dated 30th may, 2002 relating to the approved amount in respect of the said visit were false resulting in the arrest and prosecution of the 2nd appellant who is a media practitioner, 3rd respondent , the then Director of Administration of UBTH and 4th appellant, the Senior Public Relations Officer of UBTH along with 1st appellant under the nine count charge earlier reproduced in this judgment.

The prosecution called ten witnesses including the then Minister of Health Prof. Nwosu who testified as PW6. At the conclusion of the case for prosecution, appellants made a no-case submission which was overruled by the trial judge in a ruling delivered on the 27th day of January, 2006.

The said learned trial Judge held:

1. That 1st accused had a case to answer in each of counts 1, 4, 5, 6, 7 and 8 as charged and was accordingly invited to enter his defence thereto.

That 2nd accused had a case to answer in each of the counts 2 and 6 but not in count 7, and was invited to enter his defence in respect of the counts 2 and 6. The 2nd accused was then discharged in respect of counts 7 under Section 286 of the Criminal Procedure Act and the count dismissed.

3. That 3rd accused had a case to answer in respect of each of counts 3, 4, 6 and 7 as charged and was invited to enter his defence thereto

.4. That the 4th accused had a case to answer in respect of each counts 6, 7, 8 and 9 as charged and was invited to enter his defence thereto.All the four accused persons were dissatisfied with the said ruling and consequently appealed against same individually.

The issues submitted by the learned Senior Counsel for 1st appellant, J.O. AGHIMIEN, SAN are as follows:

“(a) whether the essential ingredients of the offences charged in counts 1, 4, 5, 6, 7 and 8 of the charge have been proved by the prosecution warranting the accused/appellant to be called upon to enter his defence on any of the counts.

(b) whether the evidence led by the Prosecution in support of counts 1, 6 and 7 are not at variance with the offences charged in the said counts and

to that extent not proved.

(c) Whether the learned Judge properly directed himself in law when he held that the “he is eminently entitled to take judicial notice on the fact that the duties and responsibilities of the 1st accused/appellant include the keeping or management of the Hospital funds”, on the ground that the bulk of the duties of his subordinates from various departments of the hospital rest at his desk.

(d) Whether the essential ingredients of the offence in count 4 have been established or proved requiring the 1st accused/appellant to enter a defence when there is no evidence on the printed record to show the falsity of the returns statement of out of pocket expenses of the sum of N28, 000.00.

(e) Whether the learned trial Judge in delivering a Ruling on no-case submission can, properly go into the merits of the main case (with particular reference to the proposed defence of the 1st accused person).

(f) Whether the petition (Exhibit P1 and P33) which constituted the bases of the charge against the 1st accused person are legally admissible evidence on which the Court could act when none of the signatories to the said petition was called to

testify on the contents.

(g) Whether the entire Ruling by the learned trial Judge delivered on the 27th day of January, 2006 at the High Court, Benin City without warrant from the Chief Judge to continue the case after his posting to the High Court, Uhlaja, is not a nullity”.

The issues submitted by the N.P. OSIFO, ESC, of Counsel for 2nd accused/appellant are three and they are:

“1. Whether there was complaint against the 2nd accused/appellant in the first place to warrant his being arraigned before the lower Court on the information filed by the 1st respondent

2. If the answer to 1 above is in the positive, whether having regards to the evidence presented in Court by the prosecution, the learned trial Judge rightly overruled the No-case submission made on behalf of the 2nd accused/appellant
3. Whether the learned trial Judge was right in approbating and reprobating at the same time.”

For the 3rd accused/appellant, the issues submitted for determination by his Counsel T.E. OGBEIDE0IHAMA ESQ as follows:

“1. Whether the essential ingredients of the offence charged in counts 3, 4, 6 and 7 of the charge were proved by the prosecution warranting the 3rd accused/appellant to be

called upon to enter his defence.

2. Whether the learned trial Judge did not misdirect himself in law when he allowed the prosecution to allege without proof and whether the trial Judge did not go beyond the scope of his mandate in the Ruling on No-case submission by delving into the merit of the entire case.
3. Whether the learned trial Judge did not misdirect himself when he overruled the NO-case submission made on behalf of the 3rd accused appellant when he called on the 3rd accused/appellant to present his case especially on the circumstance surrounding the issuance of Exhibit P3 and how it was spent”.

Finally on behalf of the 4th accused/appellant IDEMUDIA ILUEMINOSEN ESQ submitted the following issues for determination:

“1. Whether there was complaint against the 4th accused/appellant in the first instance to warrant he being arraigned before the lower Court on the information filed by the 1st respondent.

2. Whether the essential ingredients of the offences charged in counts 6, 7, 8 and 9 of the charge were proved by the prosecution to warrant the 4th accused/appellant being called upon to enter her defence.
3. Whether the learned trial Judge did not misdirect

himself when he went beyond the scope of his mandate in his ruling on the No-case submission by delving into the merits of the entire case.

4. Whether the entire ruling by the learned trial Judge delivered on the 27th day of January, 2006 at the High Court Benin City without warrant from the Chief Judge to continue with the case having been transferred to High Court Ubiaja, is a nullity”

I have had to go through all these issues submitted for determination before the lower Court so as to appreciate the complaint of appellant who was 2nd appellant in the lower Court and is complaining of lack of fair hearing by the lower Court in respect of his appeal.

The instant appeal is against the decision of the lower Court in the appeal of the accused/appellants including 2nd accused/appellant. Learned Counsel for appellant N.P OSIFO ESQ submitted a single issue for the determination of the appeal in the appellant brief of argument filed on 27/7/2010 to wit:

“Whether the non consideration of the appeal of the 2nd accused appellant by the Court below did not account to denial of fair hearing guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria

1999, thereby rendering the judgment of the Court of Appeal a complete nullity”

On the other hand, learned Counsel for the 1st respondent submitted the following issue for determination to wit:-“Whether or not the appellant was denied fair hearing by the Court of Appeal in light of the circumstances of the case (gleaned from the single ground of appeal)”

In arguing the sole issue supra learned Counsel for the appellant stated that the lower Court failed to consider any of the three issues submitted to it by appellant thereby breaching the right to fair hearing of appellant under the provision of Section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended, relying on the State v. Onugoruwa (1926) (9-10) S.C 329; Amadi v. Thomas Aplin & Co. Ltd (982) 4 S.C 228 that the non-consideration of the substance of appellant appear before the lower Court resulted in a miscarriage of justice, relying on Ugbodume v.Abiegbe (1991) 8 NWLR (pt. 209) 274. Learned Counsel then urged the Court to invoke its powers under Section 22 of the Supreme Court Act to determine the issues as raised before the lower Court and urged the Court to resolve the issue

in favour of applellant and allow the appeal.

It is the submission of Learned Counsel for 1st respondent that the lower Court gave equal opportunity to all the parties who were heard on the merit of the case, that what was on appeal was the ruling of the trial Court which overruled the no-case submission made by appellants and that the lower Court rightly found that the said ruling went beyond issues of law and delved into facts and merits of the case and consequently declared same a nullity.

It is in the further submission of Counsel that having set aside the ruling of the Court, the proper order was that of trial de novo before another Judge as was ordered by the lower Court that having ruled that the ruling of the trial Judge was a nullity the Court could not have gone any further to consider any other which might lead to the Court contradicting itself.

Finally, the learned Counsel urged the Court to resolve the issue against appellant and dismiss the appeal.

It should be noted that though the appellants before the lower Court appealed individually and raised separate issues, the appeal and issues arising there from, as earlier reproduced in

this judgment,arose from the ruling of the trial Court on a no-case submission made by Counsel for the appellants before thatCourt. There is no individual ruling in respect of each and every accused person. Secondly, it has to be pointed out that from the issues raised beofre the lower Court for determination in the judgment now on appeal before us, the main complaint is that the trial Court went beyond the normal ruling on a no-case submission to consider the merits of the substantive case which appellants were yet to offer their defence. Atpage 331-353 of the record, the lower Court had the following to say, inter alia

“…I have no doubt that a reasonable man reading the language used, and the analysis of the law and facts therein, will come away with the distinct impression that the lower Court believed the Appellants were truly guilty of the offences charged which should not be so. At that stage where a no case submission is made what is to be considered by the Court is not whether the evidence produced by the prosecution against the accused is sufficient to justify conviction but whether the prosecution has made out a prima facie (case) requiring at least some

explanation from the accused person as regards his conduct or otherwise- see Tongo v.C.O.P (2007) 12 NWLR (pt. 1049) 525 at 544 SC

In other words, at the stage of a No-case submission when the trial of the case is not concluded, the Court is not expected to be concerned with credibility of witnesses or weight of evidence…

No doubt, the lower Court was most unfair to their appellants, and the appeal will have to be resolved in their favour…

The appellant cannot be discharged and acquitted because the matter had not been decided on its merit, they had not been heard…

The only option open to this Court, which is sanctioned by the Supreme Court, is to remit the matter back (SIC) to the lower Court for trial before another Judge- see Kim v.State (1992) 4 NWLR (pt.233) 17. S.C…”

Finally at page 333 of the record, the Court concluded thus:

“The appeal succeeds and is allowed. The ruling of the lower Court delivered on the 27th of January, 2006 is set aside, and I hereby order a new trial of the appellants before another Judge.”

It should be noted that there is no appeal or cross appeal against the judgment reproduced, inter alia supra. It

therefore remains subsisting and binding. The judgment in issue allowed the appeals of the appellant but ordered a trial de novo before another Judge. Yet appellant herein is complaining of breach of his right to fair hearing in that the three issues he brought to the lower Court were not allegedly considered by that Court in judgment on appeal.

I am of the firm view that appellant is not correct in his assertion having regard to the judgment of the lower Court in relation to his issue 2 which postulates thus:-

“2. If the answer to issue 1 above is in the positive, whether having regards to the evidence presented in Court by the prosecution, the learned trial judge rightly overruled the no-case submission made on behalf of the 2nd Accused/Appellant”

Clearly, the above issue is one of those considered by the lower Court before coming to the conclusion that the trial Court, in an attempt at ruling on the no-case submission went into the merits of the case without first of all hearing the appellant on their defence and as such declared the said ruling a nullity and set same aside. In the circumstance, I do not agree with counsel for the appellant that the case of appellant was not

considered by the lower Court before reaching the decision in question.

Secondly, learned Counsel for appellant has not demonstrated how the decision of the lower Court in the judgment on appeal has resulted in a miscarriage of justice as alleged by him. On the contrary, whereas the trial Judge had, in a ruling on a no-case submission virtually concluded that appellants were culpable without even hearing their defence which the lower Court held constitutes a breach of appellants’ right to fair hearing, the lower Court gave appellants the opportunity to be heard before another judge in a de novo trial of the charge. How does that constitute a miscarriage of justice

Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended allegedly breached by the lower Court provides:

“In the determination of his civil rights and obligations including any questions or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

In the present case since all the

appeals of the appellants before the lower Court had the same substratum, appellant was duly heard by the Court as earlier demonstrated in this judgment.

Learned Counsel for the appellant has invited this Court to invoke its powers under the provisions of Section 22 of the Supreme Court Act to hear and determine the appeal of the 2nd appellant before the lower Court. I had in effect, held that having regard to the fact that the main issue in the appeal of appellant and which was also common to the other appeals, was determined by the lower Court which issue is substantial enough to dispose and did dispose of the appeals the invitation of the learned Counsel for appellant is in the circumstance misconceived and is accordingly declined.

Still on the invocation of the provision of Section 22 of the Supreme Court Act, I have to point out, that learned Counsel has not argued before us the three issues he presented to the lower Court for determination and which he alleged were not considered or resolved resulting in the alleged breach of the right of appellant to fair hearing. Having not done that, one wonders how Counsel wants the Court to decide the issues without

argument of both Counsels thereon. Does Counsel want the Court to argue and decide the issue for him If so, will that satisfy the rules of fair hearing

I had earlier found that there is no appeal against the decision of the lower Court setting aside the ruling of the trial Judge on the no-case submission which means there is no subsisting ruling to ground the grounds of appeal from which the three issues or appellant were formulated. This means clearly that the issues in question dies with the ruling attacked in that appeal.

In any event, it is settled law that evaluation of evidence and ascription of weight thereto remains the province of the trial Court which heard and observed the demeanor of the witnesses and is consequently in a better position to form an opinion as to the credibility of the said witnesses. This Court like the lower Court is not the trial Court and is consequently very much unsuitable for the task which learned Counsel for appellant seeks it to perform.

In the circumstance, I hold that this is the most worthless appeal I had ever been called upon to consider as same is time wasting and frivolous. It has no benefit whatsoever to appellant. It is accordingly dismissed by me

Appeal dismissed.

SC.223/2010