Senator Nicholas Yahaya Ugbane V. Federal Republic Of Nigeria & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A. (Delivered The Leading Judgment)

The Appellant herein was arraigned along with eight other persons before the High Court of the Federal Capital Territory charged with aiding and abetting the Commission of several economic crimes and conspiracy to commit same under the Penal Code, by the Economic and Financial Crimes Commission on the 16th of October, 2009. In all there were a total of 130 counts charge.

During the pendency of the case at the lower court, the Appellant filed an application dated 21st of October, 2009 before that court, wherein he sought for an order quashing the charges against him on the ground that the proofs of evidence and the statements of witnesses do not disclose any prima facie case against him. The Appellant’s application was heard and in a reserved and considered ruling delivered on the 10th day of November 2009, Banjoko J. dismissed same and ordered for accelerated hearing of the criminal case pending before him.

The Appellant is dissatisfied with the ruling of the lower court. Being dissatisfied and aggrieved, the Appellant appealed to this Court. His notice of appeal dated 12th November 2009 and filed on the 13th of November 2009, contains three grounds of appeal. These grounds of appeal without their particulars read as follows:-

1. The learned trial judge erred in law when he said:

“In the light of the above Supreme Court authorities, and the proof of evidence before the Court, I am satisfied that a prima facie case has been established, sufficient for the case to proceed to hearing.”

2. The learned trial judge erred in law when he held thus:

“At this stage of the case, I will resist the temptation to delve into the evidence and analyse same in con of the veracity of the evidence, the proof or otherwise of the various allegations and whether or not the evidence adduced is credible or whether it can sustain a conviction.”

3, The learned trial judge erred when he failed to quash the charge against the Appellant pursuant to Section 3 of the legislative Houses (Power & Privileges) Act, Cap L72, Laws of the Federation of Nigeria.”

The Appellant and the 1st respondent each filed a brief of argument.

The rest did not file any brief. This appeal will therefore be determined on the two briefs of argument only. At page 12 of the Appellants brief of argument dated 28th of December 2009 and filed on the 7th January 2010, Mr. S.I. Ameh, learned senior counsel who settled the Appellant’s brief of argument formulated two issues for the determination of this appeal. The two issues so formulated read as follows:-

I. Whether the trial court was right when it held that there is a prima facie case made out against the Appellant (f Accused person) to warrant putting him on trial of the alleged offence.

ii. Whether the alleged acts of the Appellant (3rd Accused person) which were as stated in the charge done in his capacity as Chairman Senate Committee on Power are privileged and thereby conferring immunity on him from prosecution”

On issue one, learned senior counsel for the Appellant submitted that the proof of evidence which contains the statement of the Appellant and other accused persons, at the lower court, statements of potential witnesses, as well as the documentary evidence related to this case did not link the Appellant with the offences of conspiracy and abetment alleged in the charge filed at the lower court. According to the learned senior counsel, the entire proof of evidence did not disclose a prima facie case against the Appellant that will warrant him being put through a trial. Learned senior counsel urged this Court to invoke its inherent power to quash the charges in order to safeguard the Appellant from being put through an. oppressive and worthless prosecution. In a further argument, learned senior counsel set out the definition of prima facie case as proffered in SHER SINGH VS JITENDDRANTHEN, (citation not given) and quoted with approval in AJIDAGBA VS INSPECTOR GENERAL OF POLICE (1958) 3 FSC 5. In addition learned senior counsel cited the case of ABACHA v. THE STATE (2002) FWLR (PT.118) 224 at 1277 paragraph C-D. Thereafter learned senior counsel submitted that conspiracy as an offence is no where defined in the Penal Code. For this reason, he resorted to common law for guidance as he examined the ingredients of the offences of conspiracy and abetment contrary to Sections 97 and 83 (b) of the Penal Code and conclude that the dereliction of the lower court in not considering the proof of evidence and analysing same, has substantially occasioned miscarriage of justice.

To that extend this Court is urged to set aside the ruling of the lower court and to hold that no prima facie case was established against the Appellant. In aid learned senior counsel cited NWOSU v. THE STATE (2004) 15 NWLR (PT.897) 466, AMACHREE v. NIGERIAN ARMY (2004) 3 NWLR (P7.807) 256 ATUMA v. STATE (2006) 10 NWLR (PT.989) 452, ISHOLA v. THE STATE (1972) 10 SC 63 at 76-77; DOSO AWANZE & 6 ORS v. TIV NATIVE AUTHORITY (1966) NMLR 167 ONWOVORIOLA, SAN v. FRN (2002) FWLR (PT.94) 1 at 27 paragraph B’C and a host of other authorities.

In reply, Chief Godwin O. Obla, learned counsel for the 1st Respondent set out the definition of conspiracy as provided for under Section 96 (1) and (2) of the Penal Code to rebut the claim of the learned senior counsel for the Appellant, that the offence of conspiracy is not defined anywhere in the Penal Code and submitted that prima facie simply means “a ground for proceeding”, and no more. In aid learned Counsel cited MOHAMMED SANI ABACHA v. THE STATE (SUPRA) 2002 11 NWLR (PT.779) 437 at 445-446 UBANATU VS COP (2000) NWLR (PT.643) 115 at 129 paragraphs A-D