Federal Republic Of Nigeria V. Magaji Ibrahim & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU JAURO, J.C.A. (Delivering the Leading Judgment)

The appeal herein is against the judgment of the Adamawa State High Court of Justice, Yola delivered on 2nd February, 2012 in case number FRN/IC/2010.

A summary of the facts culminating in this appeal is hereby made as follows: Pursuant to a petition dated 2nd May, 2007 signed by one Alhaji Bubajoda Koncha on behalf of Toungo concerned citizens, the Economic and Financial Crimes Commission (EFCC) commenced investigation against the two respondents.

The petition alleged embezzlement of the sum of N25 Million obtained as loan by Toungo Local Government of Adamawa State from Union Bank Plc, with the consent of the Ministry for Local Government and Chieftaincy Affairs, Adamawa State. The 1st respondent was the former Chairman Toungo Local Government Council of Adamawa State, while the 2nd respondent the Director of Finance/Treasurer of the same Local Government.

Upon the completion of investigation by the EFCC, the 1st and 2nd respondents were jointly arraigned before the lower court on 1st April, 2010 on a 20 count charge of the following offences:

1. Criminal Conspiracy under Section 97 of the Penal Code under counts 1 and 10.
2. Criminal Breach of Trust by a public servant under Section 315 of the Penal Code in counts 2, 3, 4, 5, 6, 7, 8 and 9.
3. Making false documents under Section 364 of the Penal Code and covered under counts 11, 13, 15, 17 and 19.
4. Using as genuine, a forged document under Section 366 of the Penal Code in counts 12, 14, 16, 18 and 20.

See pages 3 to 10 of the record of appeal.

The respondents pleaded not guilty to the charges on pages 234 to 236 of the record of appeal. The prosecution called six witnesses styled ‘PW1 to PW6’ and tendered 20 documentary exhibits, which were admitted in evidence and marked exhibits ‘A’ to ‘T’. The defence called 5 witnesses, with the 1st respondent as DW5 and the 2nd respondent as DW2. One documentary exhibit was tendered by the defence, which was admitted in evidence as exhibit ‘U’. Upon the conclusion of hearing, written addresses were filed, exchanged and adopted in court on 11th October, 2012. In a judgment delivered on the 2nd February, 2012 the respondents were discharged and acquitted by the lower Court on all the charges, as follows:

“On the whole I find and hold that all the twenty count charges against the accused persons fail.

The prosecution has failed to establish any or all of them against the accused persons based on the evidence adduced before the court. The accused persons are accordingly discharged and acquitted of all the twenty count charges. I however wish to restate in passing that criminal trials are not based on analogies.

In as much as the very brilliant address by the learned prosecuting counsel is appreciated, with respect, it cannot take the place of evidence and based on the evidence adduced before me, I conclude that the case of the prosecution against the accused persons fails. The 1st and 2nd accused persons are hereby discharged and acquitted.”

Aggrieved and dissatisfied by the aforementioned judgment, the appellant challenged same vide a notice of appeal dated 17th April, 2012 and filed on the 19th April, 2012. The notice of appeal is anchored and predicated upon eight grounds of appeal. In compliance with the Rules of Court, parties filed and exchanged their respective briefs of argument. The appellant’s brief of argument is dated 10th April, 2013 and filed on 12th April, 2013, though deemed properly filed and served on 7th May, 2013. The appellant’s reply brief is dated 2nd October, 2013 and filed on 3rd October, 2013 though deemed properly filed and served on 7th October, 2013. The respondent’s brief of argument dated 10th August, 2013 and filed on 19th August, 2013 but deemed properly filed and served on 7th October, 2013.

On the 19th November, 2013 the date fixed for hearing the appeal, Mr. T. H. Shabo for respondents sought for leave to move the preliminary objection raised in the respondents brief of argument. Learned Counsel adopted pages 3 to 6 of the respondent’s brief of argument containing the notice of preliminary objection and the argument in support. Learned Counsel urged the court to sustain the preliminary objection and strike out ground 4 of the grounds of appeal and issues iii and iv formulated therefrom and ground 8. Mr. Sylvanus Tahir for the appellant adopted pages 2 to 4 of the appellant’s reply brief as his response to the preliminary objection.

Learned counsel urged the court to discountenance the preliminary objection and allow ground 4 of the notice of appeal with issues (iii) and (iv) distilled therefrom, as well as ground 8. As for the main appeal, Mr. Sylvanus Tahir adopted the appellant’s brief of argument in urging the court to allow the appeal and set aside the judgment of the trial and convicting the respondents on all or any of the 20 counts charged. Mr. T. H. Shabo adopted the respondent’s brief of argument in urging the court to dismiss the appeal and affirm the judgment of the lower Court.

The appellant crafted five issues for determination on page 3 of the appellant’s brief of argument, as follows: