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”.