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.
(e) That in addition to the broadcast, the EFCC Interim Report on the basis of which the appellant herein sought and obtained leave to prosecute the respondents were made without giving the respondents a hearing.
(f) That the trial court did not consider each of appellants thereby breaching respondents right to fair hearing, and
(g) That the trial court is wrong to have granted the leave inspite of the different and wrong date the 3rd respondent is alleged to have committed the offence, a lapse which cannot be rectified at trial.
Aggrieved particular by the foregoing findings, the respondent at that court below has appealed to this Court on eight grounds.
At the hearing of the appeal, parties identified, adopted and relied on their various briefs, including appellants reply brief to 1st and 3rd respondents brief, as arguments for or against the appeal.
The seven issues distilled in the appellants brief are as follows:-
‘1. Whether the learned Justices of the Court of Appeal were right in holding that ‘for an information preferred by consent of a Judge of the High Court pursuant to Section 340(2) (a) and (b) of the Criminal Procedure Code to be presumed to have been properly instituted, application for the consent must: (a) be accompanied by statements on oath or otherwise disclosing sufficient evidence of the commission of an offence”: ground one, (b) be supported by the statement of “star witnesses”: ground two.
- Whether the learned Justices of the Court of Appeal misdirected themselves when they held that “the star witness’ made three statements which were not attached to the application for leave to prefer a charge: ground six.
- Whether the learned Justices of the Court of Appeal were right in holding that the national broadcast of the President of Nigeria was a communication to the learned trial Judge by a person in command influence over him and that the broadcast was clear example of the manipulation of the judiciary and judicial process by the executive: ground three.
- Whether the learned Justices of the Court of Appeal misdirected themselves when they held that the EFCC Interim Report and the national broadcast of the President of Nigeria were made ‘without a hearing from the accused’: ground seven. supported by the statement of ‘star witnesses’: ground two.
- Whether the learned Justices of the Court of Appeal were right in holding that the error in stating a wrong date for the commission of the offence by the 3rd respondent was so fundamental that it could not be amended at the trial: ground five.
- Whether the learned Justices of the Court of Appeal misdirected themselves when they held that the learned Judge did not consider each of the applications before him and that fair hearing lights of the respondents herein were compromised: ground four.
- Whether the learned Justices of the Court of Appeal erred in law when they held that the accused persons had not ‘in any way been implicated in the proofs of evidence supplied with the application for consent’: ground eight. ‘
The issues formulated by each of the respondents are a mere replica of the appellants issues set out above. It will amount to unnecessary repetition to reproduce all the issues by each of the respondents. I think it will suffice if I reproduce the issues formulated by the 1st respondent to cover the remaining respondents. They are as follows :-
‘(i) Whether the Learned Justices of the Court of Appeal were right in holding that the application for leave to prefer a charge must be accompanied by Statement of witnesses.
(ii) Whether the learned Justices of the Court of Appeal misdirected themselves when they held that the star witness made three, rather than two, statements which were not attached to the Application for leave to prefer a charge.
(iii) Whether the Learned Justices of the Court of Appeal were right in holding that the national broadcast of the President of Nigeria was a communication to the learned trial judge by a person in command influence over him and that the broadcast was a clear example of the manipulation of the judiciary and judicial process by the executive supplied with Application for consent without the Statements of the witnesses ‘
In the case at hand, the real issue in controversy between the parties is whether the court below is right in its findings that the trial court had wrongly granted leave to the appellant herein to prefer charges against the respondents. The appellants dissatisfaction with that finding is as contained in grounds 2 and 6 in appellants amended Notice of appeal. It is from these grounds that the appellant distilled its 1st and 2nd issues for the determination of the appeal. The 1st and 2nd similar issues of all the three respondents also draw from these grounds. For now, appellants 1st and 2nd issues will jointly be considered vis-a-vis those distilled and argued by the respondents in relation to them. Thereafter, if the need still persists, the other issues raised in the appeal would then be looked into.
In arguing the two issues, Mr. Oshe learned senior counsel for the appellant referred to the lower courts finding at pages 232 – 233 of the record and submitted that the finding is erroneous for at least two reasons. Firstly, S 340 (2) (a) and (b) of the Criminal Procedure Code the court purportedly relied upon in setting aside the trial courts ruling is not the applicable law on the matter. Having applied the wrong law and criteria, counsel further submitted, the court necessarily arrived at a perverse decision. The Criminal Procedure (Application for leave to prefer a charge in the High Court) rules 1970 stipulates the procedure that should inform a court in the exercise of its powers under S 185 (b) of the Criminal Procedure Code to grant or refuse an applicants leave to prefer a charge against an accused. In the instant case, learned counsel contended, the trial court that had complied with all the requirements of the rules could not be said to have exercised its discretion wrongly.
On appellants 2nd issue, learned senior counsel submitted that the lower court is wrong in its finding that Senator Chris Adighije is a star witness and that the Senator had made a third statement with the view to protecting certain interests. The proof of evidence attached to appellants application, learned senior counsel submitted, does not support the lower courts findings in this regard. The court, learned senior counsel submitted, is bound by the record before it and where it incorrectly summarises the facts before its inference, being a misdirection, the inference has to be set-aside on appeal. Relying on R. O. Gaji V the State (1975) NMLR 98 and Wahid Clidiak V A. K. J. Laguda (1964) NMLR 123 at 125 in support of his arguments, learned senior counsel urged us to resolve the two issues in appellants favour. In any event the exclusion of the motive behind the statement of any witness is not a criteria for the grant of the leave the appellant sought.
Responding, learned counsel to all the respondents made similar submissions that where a statute has laid down a particular procedure for doing any act, there should be no other method of doing that same act. Section 185 (b) of the Criminal Procedure Code read along with Order 3 rule 2 (a) (b) of the 1970 rules stipulate the conditions which must exist before the court grants leave to the appellant. The provisions, counsel for the respondents unanimously submitted, make it mandatory for the applicant to attach the written statements of witnesses to the application. Since the appellant had failed to annex the written statements of the witnesses as required, counsel submit, the court below is right to have set-aside the perverse ruling of the trial court that held otherwise. In particular, learned counsel hammered on appellants omission to make the three contradictory statements of Chris Adighije whom they tagged ‘the star witness’ available. Relying on this courts decisions in MILTON P. OHWOVORIOLE V F.R.N & 3 Ors (2003) 1 SCNJ 484 at 492 and Ezeadukwa V Maduka (1997) 8 NWLR (part 518) 635 at 656, counsel insist that not only are the decisions in Gaji V the State (supra) and Chidiak V Laguda (supra) unavailing to the appellant, the extant rules of court on appellants application vindicates the lower courts position on the matter. The lower courts decision setting aside the wrong exercise of discretion of the trial court remains unassailable.
Now, both sides in the instant matter are agreed and correctly too that the trial courts power to grant the appellant the leave it sought to prefer a charge against the respondents is provided for by Section 185 (b) of the Criminal Procedure Code hereunder set out for ease of reference :
‘No person shall be tried by the High Court unless:-
(b) a charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court.’ (underling supplied for emphasis).
Order 3(1) and (2) (a) and (b) of the Criminal Procedure (applications for leave to prefer a charge in the High Court) Rules 1970 specify what conditions an applicant shall fulfill to entitle him to the leave he seeks.
The order and rule provide:
‘3. (1) Every application, other than an application made under rule 2, shall be in writing signed by the applicant or his counsel and,
(a) shall be accompanied by the charge in respect of which leave is sought and, unless the application is made by or on behalf of the Attorney-General, shall also be accompanied by an affidavit by the applicant that, the statement contained in the application are, to the best of the deponents knowledge information and belief true; and
(b) shall state whether or not any application has previously been made under these rules and whether or not any proceedings have been taken under Chapter XVII of the Criminal Procedure Code, and the result of any such applications or proceedings.
(2) Where no proceedings have been taken under Chapter XVII of the Criminal Procedure Code, the application shall state the reason why it is desired to prefer a charge without such proceedings having been taken and;
(a) there shall accompany the application proofs of the evidence of the witnesses whom it is proposed to call in support of the charge and
(b) the application shall include a statement that the evidence shown in the proofs will be evidence which will be available at the trial and that the case disclosed, by the proofs is, to the best of the knowledge information and belief of the applicant, a true case.’
Learned counsel to the respondents are indeed on a firm terrain in their submission that where a statute provides for the manner of doing a particular act only the manner specified by the statute will suffice. See Nnonye V Anyichie (2005) 2 FWLR (part 268) 1213 and Ntiero V NPA (2008) 10 NWLR (part 1094) 129. The respondents appeal to the court below has been the assertion, and same has been upheld by the court, that since the appellant have not met the criteria stipulated under order 3 rules (1) and (2) of the relevant rules of the trial court regarding its application, the leave necessary for the preferment of the charges against the respondents is improperly acquired. Competent proceedings against the respondents is impossible as both the improperly acquired leave and the illegally preferred charges against them must be quashed. But do facts on record sustain respondents contention? I think not Learned respondents counsel appear to downplay the purpose behind the extant rules of court.
In the case at hand, see page 106 of Vol. 1 of the record of appeal, the appellant attached to its application the following:-
(1) A copy of the fifteen count charge against the respondents and others in respect of which leave was sought;
(2) Names and addresses of witnesses;
(3) Proof of evidence, which shall be relied upon at the trial and a statement that neither had a similar application been previously made nor was a preliminary investigation on going in any magistrate court pursuant to chapter XVII of the Criminal Procedure Code.
The records, therefore, bears out the respondents that the witnesses statements have not been attached to appellants application for leave. But this fact does not mean that learned counsel are correct in supporting the lower courts finding that appellants failure to annex the statement of the witnesses is fatal.
A community reading of the clear and unambiguous provisions of Section 185 (b) of the Criminal Procedure Code and Order 3 rules (1) and (2) (a) and (b) reveals clearly that the appellant herein has complied with the criteria an applicant is required to fulfill to be entitled to the leave he seeks. Nowhere in the applicable rules has the annexture of the witnesses statements to the application for leave been made a necessary requirement. The court below initially seems to appreciate the essence of the adjectival provisions when it states at pages 229 – 230 of volume 2 of the record of appeal :-
‘The procedure whereby a trial on indictable offence will be initiated by an application whether in the Judges chambers or in open, demands that the application be made ex-parte: at the back of the person to be tried, and this seeks a discretion not an absolute right. There must be clear particulars and facts to justify the exercise of the discretion. Therefore it is not the law, neither is it justice, to say that once the application is made on information and all necessary documents are attached, without more, the application to prefer a charge must be granted. There must be facts in the proofs of evidence to justify the grant of the application. Otherwise, indictments would be allowed to be tried where enough particulars are absent in the proofs of evidence. However an accused person should not be indicted to face trial which from the outset he should not face.
The Supreme Court in Abacha v. The 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; Okoli V The State (1997) 1 NWLR (pt 479) 115.
The leave granted the appellant by the trial court, it must be appreciated, is on the basis of appellants exparte application to the court. Respondents are not put on notice. The extant procedure put in place only require the appellant to provide the court with adequate materials from which to infer whether or not it is just to put the respondents on trial. This Court has insisted that it is oppressive and unconstitutional to put a person on trial unless the court approached to grant the leave is satisfied that the materials accompanying the application disclose enough facts to wan-ant a trial. Learned counsel for the respondents contention that there is the necessity to attach statements of witnesses and serve same on the respondents is therefore misconceived.
It is worth the while to know that proofs of evidence are not the same as the statements of the witnesses the appellant would call at the trial. Proofs of evidence are summaries of the statements of those witnesses to be called at trial by the appellant. It is for that reason that the rules require an affirmation from the applicant that the evidence against the respondents as summarized in the proofs of Evidence prepared by the appellant will be the evidence against the respondents in respect of whose trial the court is urged to grant the leave to prefer a charge. Even at the trial, the respondents, on the authorities, are only entitled access to the statements of the prosecutions witnesses on the fulfillment of certain conditions.
In the case at hand where trial is yet to commence, indeed its competency is being challenged by the respondents, it is premature for respondents to assert any entitlement to the statements of witnesses. The affirmation of respondents entitlement to the witnesses statements by the court below depicts a sad misunderstanding of the decisions of this Court, inter alia, in Gaji V State (supra), Milton P. Ohwovoriole V FRN (supra) and Ikomi V the State (supra). It is, therefore, necessarily rewarding to remind learned respondents counsel the decision of this Court in these cases on this core issue which the instant appeal raises.
In Gajis case, on being appraised of the leave granted the respondent to prefer a charge for his summary trial, the appellant by a motion on notice urged the trial High Court for an order, inter alia, that he be supplied with the proofs of statements of the witnesses attached to respondents exparte application for the leave to prefer the charge against him. Appellants application was refused. The appellant in that case neither urged the trial High Court nor this Court that the leave granted the respondent to prefer a charge for his summary trial be set-aside following the trials courts perverse exercise of its discretion in the grant of the leave. Appellant however renewed his application several times for the supply of the statements of prosecution witnesses to him which the trial court persistently refused and dismissed by virtue of Section 122 of the CPC. The trial court held that appellant did not bring the applications within the exceptions to the general rule under the Section 122 of the C.P.C which disentitled him to the supply of those statements.
At page 65 of the law report, this Court, in relation to the trial courts refusal to oblige the appellant the supply of the witnesses statements attached to the application for leave to prefer a charge against him pursuant to Section 185 (b) of the Criminal Procedure Code, remarked at page 64 of the report thus:
‘It was not argued before us that in seeking the leave of the judge as stated, the appellant should be put on notice and therefore there cannot be any force in any argument that that should have been the case and that at that stage the appellant should be supplied with the proofs of the evidence to be given by the witnesses”
The court proceeded to observe obiter that its decision on the point that had not arisen before it though of considerable importance in an appopriate case, was of little or no effect ‘on the fortunes of the appellant before it’. It is in respect of appellants subsequent application during trial that this courts decision has some utility. The court at page 75 of the report remarked as follows:
‘learned counsel instanced the failure to serve the appellant with copies of the deposition of the prosecution witnesses since there was no preliminary investigation preceeding his committal for trial at the High Court, We have already dealt with the issue and we are of the view that although it would be far more desirable that judges who exercise the powers of granting leave under the provisions of Section 185 (b) of the Criminal Procedure Code should ask for and insist on seeing the proofs of evidence which it is intended to urge in support of the prosecution, it is not open at that stage to an accused person to be invited into the scene and moreover to be supplied with copies of the statements of potential witnesses.’
The foregoing obiter remarks have since become the principle on the point in this court’s subsequent divisions.
Now, the proofs of evidence, the statements of the accused persons and other relevant exhibits and documents to be tendered by the appellant, all of which are annexed to the application for leave, are at pages 118 – 187 of Vol. 1 of the record of appeal. An examination of these discloses sufficient materials on the basis of which the trial court has exercised its discretion judiciously and judicially.
Learned respondents counsel and indeed the court below appear either not to have understood or are unimpressed by the decisions of this Court in both Gaji V the State (supra) and Milton P. Ohwovoriole V FRN (supra). In the latter case Kalgo, JSC at pages 194 – 195 of the law report restated the decision of this court on the issue at hand as follows :
I have earlier held in this judgement that I find no evidence linking the appellant with the offence charged against him and therefore prima facie case has been established justifying the proceeding of the criminal trial against him. In the Ikomi V. State (supra) this court clearly said “no citizen should be put to the rigours of trial, in a criminal proceeding, unless available evidence points, prima facie, to his complicity in the commission of a crime’. And in the recent recent decision of this court on a similar issue in Abacha V. The State (2002) 7 SCJ 1 at page 35 (2002) 11 NWLR (pt. 779) 437 at 499 this court reiterated this principle and in the leading judgment of Belgore, JSC, in the majority decision of 4 to one held that:
‘The court below as well as the Trial court erred, in finding prima facie case for the appellant to answer. At best, what is in the proofs of evidence amounts to serious suspicion that the appellant knows more than he adverts to. Suspicion however well placed does not amount to prima facie evidence, more facts than are now in the primed record will be needed to nail the appellant to his being required to explain. The prosecution must be wary of being accused of persecution rather than prosecution. ‘
From the foregoing, it is thus not the decision of this Court in the two cases that leave pursuant to an application under and by virtue of Section 185 of the Criminal Procedure Code and Order 3 rules (1) and (2) (a) and (b) of the 1970 rules succeeds only where, in addition to the other requirements, the applicant has annexed to the application the statements of the prosecution witnesses. The court only insists that before the leave is granted, the judge to whom the application is made must ensure that the materials before him justify putting the person in respect of whose prosecution the leave is being sought to trial. In the case at hand, from the proof of evidence and the cautionary statements of the respondents the appellant annexed to its application, it must be re-iterated, the applicant has fulfilled the conditions the law places on it. The judgment of the court below to the contrary is perverse.
It is for these reasons that I resolve the only real core in this appeal in favour of the appellant.
It becomes incumbent at this stage to restate that courts do not waste their precious time in determining academic or hypothetical questions that are either totally unconnected or far removed from the real issues in controversy between the parties. An examination of all the other issues parties here assert are relevant to the determination of the appeal discloses that they are irrelevant, diversionary or at best constitute defences or matters best raised and dealt with at trial. The lot are hereby discountenanced. See Oniah V Onyia (1989) 1 NWLR (part 99) 514 and Adebayo V Babalola (1995) 7NWLR (part 408) 383.
On the whole, I hereby allow the meritorious appeal, set-aside the judgment of the court below, restore the trial court’s decision and the remit the case to that-court for the trial of the respondents to be conducted and concluded expeditiously.