Milton Paul Ohwovoriole San Vs Federal Republic Of Nigeria & Ors (2003)
LAWGLOBAL HUB Lead Judgment Report
A. KALGO, JSC.
The appellant is a Senior Advocate of Nigeria (SAN). He was counsel for the 4th respondent who is an Insurance Broker and Chairman of Fidelity Bond of Nigeria Limited which was appointed a member of a consortium of brokers that handled the Nigeria Airways Insurance Account. The Federal Government set up a Judicial Commission of Inquiry for the investigation of the Management of Nigeria Airways Limited (1983 – 1999), and it was in the course of the investigation that some criminal allegations were made against the appellant.
On the 22nd of May 2001, the Attorney-General of the Federation, for the 1st respondent, applied to the trial court for consent to prefer a charge against the appellant, 2nd, 3rd and 4th respondents under Section 185 (b) of the Criminal Procedure Code of Northern Nigeria. The application was accompanied by a copy of the charge, the names and addresses of witnesses and the proof of evidence which shall be relied upon at the trial. The application which was made ex-parte, was considered and granted by the trial court on the 22nd of May 2001. In the charge, the appellant was jointly charged in counts I and II with the 3rd and 4th respondents for conspiracy, and giving gratification of N3.5million to the 2nd respondent contrary to Section 9 (1) of the Corrupt Practices And Other Related Offences Act 2000.
The appellant was the 4th accused person at the trial court and on the 25th of May 2001, he filed a motion praying the court to quash the charge preferred against him on the grounds that the offence alleged therein is not disclosed by the statements of witnesses or proof of evidence filed in that court and that the charge is an abuse of the process of court. The learned trial judge heard the application and gave a considered ruling.
In his ruling dated 1st June 2001, the learned trial judge said:
“I wish to state here that when under this process of an application to prefer a direct charge in the High Court the issue is not the same as when evidence has been adduced and the court to decide whether there is a prima facie cases (sic). However the prima facie case here is that which the court is only to be satisfied (sic) that some explanation is required from the accused. See the Old case of Queen V. Ojuwa Oguche 4 FSC 64. Ajidagba V. Insp. Gen. of Police (1958) 3 FSC 15. Where it was held that what is meant by prima-facie case, it only means there is ground for proceeding.
In view of the foregoing and having regard to the charge and the written statement of the 4th accused, I have come to the conclusion that there exist that ground to proceed against the 4th accused via a trial”.
The application of the appellant was therefore dismissed. He appealed to the Court of Appeal on 3 grounds.
On the 5th of June 2001, the appellant through his counsel, filed an application in the Court of Appeal praying inter alia, for court orders (i) granting him leave to use a bundle of documents as the record of appeal, (ii) dispensing with the filing of briefs by the parties to the appeal and (iii) for accelerated hearing of the appeal, under the relevant rules of that court. The Court of Appeal granted these prayers accordingly. The appeal was then immediately heard and by a unanimous decision delivered on the 19th of June 2001, the Court of Appeal per Oduyemi JCA (and concurred by Musdapher and Mangaji JJCA) held:-
“Having held earlier in this judgment that the learned trial judge was right in holding that there was ground for proceeding with the trial of the appellant herein, I find no merit in this appeal. I dismiss the appeal”.
The appellant was displeased with this decision and he appealed to this court on eight grounds.
In this court written briefs were filed and exchanged between the appellant and the 1st respondent. The 2nd, 3rd and 4th respondents who appear to be nominal parties to this appeal, did not file any briefs. The appellant also filed and exchanged a reply brief.
It is pertinent to observe that both the appellant and the 1st respondent agreed in their respective briefs that there is only one issue which arises for the determination of this court in this appeal. The issue as formulated by the appellant reads:-
“Whether the Court of Appeal was right in holding that the discretion of the learned trial judge in granting leave to prefer the charge against the appellant was exercised in accordance with law”.
This issue, as can be read from its wording, deals with the way the learned trial judge exercised his discretion in granting leave to the prosecution to prefer the charge against the appellant. In the copy of the charge which was attached to the application to prefer a charge under Section 185 (b) of the Criminal Procedure Code (CPC), the appellant faced two counts which read:-
“That you Mr. Adeyemi Omowunmi, Chief Adebiyi Olafisoye and Mr. Milton Paul Ohwovoriole (SAN), on or about the 16th day of November, 2000, at Abuja in the Abuja Judicial Division, conspired with one another to give as gratification the sum of N3,500,000.00 (three Million, five hundred thousand naira only) to Alhaji Mika Anache a member of the Judicial Commission of Inquiry for the Investigation of the Management of Nigeria Airways Limited and other members of the said Commission in order to induce the members of the Commission to show favour to Chief Adebiyi Olafisoye and his company, Fidelity Bond of Nigeria Limited in the discharge of the official duties of members of the Commission and thereby committed an offence contrary to Section 26 (1) (c) and punishable under Section 9 (1) of the Corrupt Practices and Other Related Offences Act 2000”.
“That you Mr. Adeyemi Omowunmi, Chief Adebiyi Olafisoye and Mr. Milton Paul Ohwovoriole (SAN) on or about the 16th day of November 2000 at Abuja in the Abuja Judicial Division, gave as gratification the sum of N3,500,000.00 (three million, five hundred thousand naira only) to Alhaji Mika Anache a member of the Judical Commission of Inquiry for the Investigation of the Management of Nigeria Airways Limited and other members of the said Commission in order to induce members of the Commission to show favour to Chief Adebiyi Olafisoye and his company, Fidelity Bond of Nigeria Limited in the discharge of the official duties of the members of the Commission and thereby committed an offence contrary to Section 26 (i) (c) and punishable under Section 9 (1) of the Corrupt and Practices and Other Related Offences Act 2000”.
Count I charges the appellant with conspiracy with the 3rd and 4th respondents to give gratification of N3.5 million to the 2nd respondent. Count II charges the appellant with giving gratification of the said amount to the 2nd respondent.
Section 185 (b) of the C. P. C provides that-
“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”.
An application for such leave is made pursuant to the provisions of the Criminal Procedure Code (Application to Prefer a charge in the High Court) Rules 1970. Under the said rules, the application must be accompanied by a copy of the charge sought to be preferred, names of witnesses who shall give evidence at the trial, and proof of evidence (written statements) which shall be relied upon at the trial. The applicant must also inform the court that no application for such leave has been made previously in the case and that no preliminary inquiry is being conducted in the matter by any magistrate court.
By virtue of the said rules, the learned trial judge had the discretion to grant or refuse the application.
In his ruling on the application, the learned trial judge said:-
“I have consider (sic) the application on its merit and I am of the view that it is a proper case in which the court can exercise its discretion in form of the application haven (sic) complied mutatis mutandis with the provisions of Section 185 (b) of the C.P.C.
To that end leave is hereby granted to the applicant to prefer a direct criminal charge against the following in this court:-
Alhaji Mika Anache (M)
Chief Adebiyi Olafisoye (M)
Mr. Adeyemi Omowunmi (M)
Mr. Milton Paul Ohwovoriole (M)”.
In this case, the following documents were filed with the application for leave to prefer the charge:-
(a) a copy of the charge;
(b) list of prosecution witnesses;
(c) proof of evidence (not written statements) of the said witnesses;
(d) written statements, under caution of all the accused persons.
It must also be understood that the provisions of Section 185 (b) of the C.P.C must be read with those contained in the rules governing the application to prefer a charge as in this case, and any application to quash the charge preferred by leave of the High Court, must necessarily involve the consideration of those provisions.
There is no doubt that the learned trial judge has the discretion to grant or refuse leave to prefer the charge but the discretion as usual, must be exercised judicially and judiciously. In that exercise, he must ensure that he has taken into consideration all the materials placed before him including the relevant law applicable thereto. See U.B.A Limited V. Stahlabau GMBH & Co. KG. (1989) 3 NWLR (pt. 110) 374.
In the instant case, the relevant materials placed before the trial judge for the exercise of his discretion are the proofs of evidence and the written caution statements of the accused persons. These are contained in the first volume of the record of appeal from pages 6 – 28. The so called proof of evidence on pages 6 and 7 of the said record contained the names of 6 witnesses and merely stated what each witness was going to testify at the trial. In none of them was it shown that the appellant was involved in conspiring to offer the alleged bribe of N3.5 million or that he actually gave the said amount as bribe to anybody. Also on the caution statements of the accused persons including the appellant on pages 9 – 28, none of the 3 accused persons now respondents 2, 3 and 4, said in his statement that the appellant was involved in any discussion or agreement with him to give the N3.5 million bribe or took part in actual giving of the said bribe, to any person as alleged in the charge. It was true that 3rd respondent stated in his statement that the appellant was their counsel in the matter, and no more. The appellant, in his own statement did not deny that the 3rd respondent was his client in the matter, but he vehemently denied that he discussed the issue of the N3.5 million with any body and his client did not at any time inform him that he gave the said amount to any body in connection with this matter. The appellant also denied discussing the issue of the N3.5 million with one Chief Adefulu whom he said wanted to tarnish his character and image as the reason for framing him in this matter.
In the proof of evidence attached to the application for leave to prefer the charge, Chief Adefulu was witness No.3 and it was indicated that:-
“he will testify as to:-
how he came to know about the gift of N3.5 million naira to members of the Judicial Commission of Inquiry for the Investigation of the Management of Nigeria Airways. He will also testify as to the steps he took”.
That was all what Chief Adefulu was to say at the trial as his own evidence. There is nothing to show that the appellant or any body else was going to be involved in the issue of the gift and no explanation of the steps he took following his knowledge of the matter. This must have kept every body in the dark particularly the trial court which cannot properly presume the involvement of any person in the whole matter. And for the court to properly exercise its discretion in this case, it must be provided with clear information as necessary material to act upon. It cannot be presumed.
Learned Senior Advocate of Nigeria for the appellant submitted that there was no link between the appellant and the crime charged on the materials placed before the learned trial judge on 22nd May 2001 including the caution statement of the appellant himself. He relied on the case of Ikomi V. the State (1986) 3 NWLR (pt.28) 340 at 358 where in a similar situation this court held that
“…an accused person should not be put on his trial if there is no link between him and that offence. If the judge grants consent to prefer an information in the absence of such link such information is bound to be quashed”.
The learned SAN further submitted that the Court of Appeal was wrong to conclude that the statement of the appellant that he was framed in the commission of the offence by Chief Adefulu linked the appellant with the charge preferred for which an explanation is required. Learned counsel submitted that the appellant’s statement was only a statement in exoneration of the allegations made against him in addition to his denial.
For the 1st respondent, Mrs.Onuogu the learned Assistant Director submitted that the statement of the appellant acknowledging that he was framed in the commission of the offence by Chief Adefulu raises the presumption that he (appellant) was linked with the offence and that there was something that requires some explanation from him. This, learned counsel further submitted, will amount to “prima facie case” and gives “ground for proceeding” against the appellant. Learned counsel relied on the cases of Ikomi V. The State (supra) and R. V. Ajidagba (1958) 3 FSC 5.
I have carefully examined the proof of evidence and the statements of the accused persons placed before the trial judge in the application to prefer the charge on the 22nd of May 2001, and find that there is no evidence at all implicating or linking the appellant with the offence charged against him. In his statement, the appellant categorically denied the N3.5 million bribe.
In the application to quash the charge framed against the appellant, one Mr. Onome Obuotor, swore to a counter affidavit on 1/6/2001, in which he stated in paragraph 4 and 5 thus:-
“4. That by virtue of my position I am aware of a statement made by Chief Adefulu one of the prosecution witnesses in which he stated that Mr. Milton Paul Ohwovoriole (SAN) had visited him and informed him that his client Chief Olafisoye had given the sum of N3.5M. (three million five hundred thousand naira) to Mr. Omowunmi to give to Mr. Anache to be shared by members of the Judicial Panel Investigating the Management of Nigeria Airways.
That the statement of Chief Adefulu is contained in the case diary’.
The Court of Appeal relied heavily on these two paragraphs of the counter affidavit particularly paragraph 5 in coming to the conclusion that the appellant was linked with the offence charged. Oduyemi JCA who wrote the leading judgment said:-
“I cannot ignore paragraph 5 because that paragraph at page 61 of the record forms part of the proceedings in the lower court when the application to quash the consent was being considered – the decision on which is now the subject of this appeal”.
With due respect to the learned Justice of the Court of Appeal, the fact that the counter affidavit containing the paragraph 5 forms part of the trial court proceedings on appeal, is not relevant in deciding whether the appellant was linked with the offence or not, because the whole counter-affidavit was filed on the 1/6/2001 whereas the consent or leave of the trial judge to prefer the charge was granted on the 22nd of May 2001. The evidence in paragraph 5 of the counter-affidavit was not available to the learned trial judge on the 22nd of May 2001 when he exercised his discretion to grant leave to prefer the charge.
It is also my respectful view that the Court of Appeal was misled by the interpretation it gave to Section 122 (1) (a) of the C.P.C. That subsection entitles a court to call for a case diary in a case before it and inspect it where it considers necessary. It is not automatic in all cases and it was not shown in this case that the learned trial judge took advantage of the provisions of the subsection. The Court of Appeal, in reaching its decision merely presumed that during the time the trial court was considering the application for leave to prefer the charge, he called for and inspected the case diary and must have been satisfied that the evidence of Chief Adefulu therein linked the appellant with the offence charged. This was not the case here and no evidence to support that. In fact the learned trial judge said in his ruling that he relied on the statement of the appellant in exercising his discretion to grant the application.
Therefore if on the 22nd of May 2001, when the learned trial judge granted leave to prefer the charge against the appellant, the evidence per paragraphs 4 and 5 of the counter-affidavit of Mr. Obuotor was not available or placed before the trial court, what was before him would be insufficient, in my view, to link the appellant with the offence and give ground for proceeding against him. It is not the duty of the Court of Appeal to fish or scuttle around for evidence or to go to the extent of presuming the same when a party fails to produce it.
In the U.B.A V. GMBH case (supra) this court held that the discretion of court is not an indulgence of a judicial whim, but the exercise of judicial judgment based on facts and guidance by law. In the instant case it is clear to me that the learned trial judge considered matters which are not before him at the time of exercising his discretion and he therefore exercised his discretion on wrong principles or considerations. This therefore makes it wrong for the Court of Appeal to uphold the decision of the trial court as it did.
This appeal clearly touched on the exercise of discretion of the trial judge as confirmed by the Court of Appeal. This court as an appeal court would very rarely, if at all, normally interfere with such a decision as the court is not entitled to substitute its own discretion for that of the trial court. See Bank of Baroda V. Mercantile Bank (Nig) Ltd (1987) 3 NWLR (pt.60) 233; Bakare V. A.C.B Ltd (1986) 3 NWLR (pt.26) 47. But where the trial court based its exercise of the discretion on matters extraneous to the issues before him, or failed to take relevant facts into consideration, the exercise of the discretion will not be bona fide and this court will be entitled to interfere.
See Adejumo V. Ayantegbe (1989) 3 NWLR (pt.110) 417 at 445; Jammal Engineenng Co. Limited V. Misr (Nig) Ltd (1972)1 All NLR (pt.1) 322.
I have earlier held in this judgment that I find no evidence linking the appellant with the offence charged against him and therefore no prima facie case has been established justifying the proceeding of the criminal trial against him. In Ikomi V. State (supra) this court clearly said that “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 decision of this court on a similar issue in Abacha V. The State (2002) 7 SCN 4 at page 35; (2002) 11 SCM 1, 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 suspicions 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 printed record will be needed to nail the appellant to his being required to explain. The prosecution must be weary of being accused of persecution rather than prosecution”.
I adopt this statement and the principles involved therein and apply same to this appeal.
On the issue of non-production of the record of the trial court’s proceedings of 22nd May 2001 by the appellant in the Court of Appeal and the application of Section 149 (d) of the Evidence Act against the appellant, I do not think that this would in any way affect the substance of this appeal. In fact the supplementary record was filed in this court on the issue and it confirmed clearly that the learned trial judge made no effort to call for or inspect the case diary on the matter. The appellant was therefore not hiding anything which was not to his advantage for not producing the said record of proceedings.
On the contrary it would be useful to him to produce it. Here again, it is my view, that the Court of Appeal was wrong to presume that the non-production of the record should be reckoned as being unfavourable to the appellant and affecting the merit of his appeal.
The other issue on the application of section 64 of the Corrupt Practice and Other Related Offences Act 2000 which was raised suo motu by the Court of Appeal does not appear to me to be relevant to the determination of this appeal, particularly if one looks at the provisions of Section 5 (2) of the C.P.C and the fact that no rules have yet been made regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with offences under the said Act. In any case, I consider this to be an academic exercise which does not affect the merit of this appeal and which this court does not normally entertain. For this reason I would not say anything about it presently as it is not an issue in this appeal.
In sum, and for all what I have said above, I answer the sole issue in this appeal in the negative. I therefore find that there is merit in this appeal and I allow it I set aside the decision of the Court of Appeal confirming that of the trial court. I accordingly substitute an order quashing counts I and II of the charge in so far as they are preferred against the appellant in this case.