Temple Nwankwoala V. Federal Republic Of Nigeria (2018)
LAWGLOBAL HUB Lead Judgment Report
OLABODE RHODES-VIVOUR, J.S.C.
This is an appeal from a decision of the Court of Appeal, Benin Division, upholding the conviction of the appellant by a Benin City High Court on three counts under the Corrupt Practices and Other Related Offences Act, 2000.
For clarity, the three counts charge under which the appellant was charged and convicted may be set out as follows:
COUNT 1
CORRUPT DEMAND BY PERSON CONTRARY TO SECTION 10(A)(II) OF THE CORRUPT PRACTICES AND OTHER RELATED OFFENCES ACT 2000.
PARTICULARS OF OFFENCE
That you Temple Nwankwoala (DSP) of the Nigeria Police Force, at Benin City, Edo State on or about 18 of October, 2006, being a Police Officer in charge of the Homicide section attached to the office of the Assistant Inspector General of Police Zone 5, Benin City, did ask or demand for the sum of N1,000,000 (One Million Naira) from Elder Alexander Okiye being a person against whom criminal complaints were made on account of the said criminal complaints being investigated as an inducement to write, secure, procure and confer a favourable report of Elder
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Alexander Okiye in respect of the criminal complaints and thereby committed an offence punishable ”under” Section 10(a)(II) of the ICPC Act 2000.
COUNT 2
CORRUPT RECEIPT BY PERSON CONTRARY TO SECTION 10(A) (II) OF THE CORRUPT PRACTICES AND OTHER RELATED OFFENCES ACT 2000
PARTICULARS OF OFFENCE
That you, Temple Nwankwoala, (DSP) and an officer in charge of the Homicide Section attached to the office of the Assistant Inspector General of Police Zone 5, Benin City Edo State on or about 6th of November, 2006 did received the sum of N500,000 (Five Hundred Thousand Naira) as gratification from Elder Alexander Okiye against whom criminal complaints were made and being investigated in order to write, secure, procure and confer a favourable report in favour of the suspect, Elder Alexander Okiye in respect of the Criminal complaints made against him, and thereby committed an offence punishable under Section 10(a)(II) of the ICPC Act 2000
COUNT 3
FAILURE TO REPORT OFFER OF GRATIFICATION CONTRARY TO SECTION 23(1) OF THE ICPC ACT 2000 PARTICULARS OF OFFENCE
That you, Temple Nwankwoala, (DSP) of the Nigeria Police Force, being the officer in charge of the
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Homicide section in the office of the Assistant Inspector General of Police Zone 5, Benin on or about 26 October 2006 in the course of investigation of complaints of crimes against one Elder Alexander Okiye was offered gratification by the said Elder Alexander Okiye but refused and failed to report the offer of gratification to any officer of the Independent Corrupt Practices – Commission (ICPC) in Benin city or any Police Officer and thereby committed an offence punishable under Section 23 (1) of the ICPC Act 2000.
The appellant pleaded not guilty to the original two counts, subsequently amended by the addition of a third count. Trial eventually got underway.
The prosecution called four witnesses. Fifteen documents were admitted as exhibits A-P.
The appellant testified in his defence and called three witness. In a considered judgment delivered on 25 January, 2012 the learned trial Judge Ikponmwem J found the appellant guilty on counts 1 and 3. The appellant was sentenced to seven years imprisonment with hard labour on count 1 while he was cautioned and discharged on count 3.
Dissatisfied, the appellant filed an appeal. It was heard by the Court of Appeal,Benin Division.
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That Court in a judgment delivered on 23 February, 2015 affirmed the judgment of the trial Court in these words:
“Having therefore determined the two issues canvassed by the appellant against him, the conclusive effect is that this appeal lacks merit and it is hereby dismissed by me. The lucid and sound decision of Justice E.F. Ikponmwen of the Edo State High Court delivered on the 25th of January, 2013 is hereby affirmed. I also affirm the conviction and sentence of the lower Court.”
This appeal is against that judgment. Briefs were filed and exchanged by counsel.
The appellant’s brief was filed on 28th July 2016, while the respondent’s brief was filed on 1st February, 2017 but deemed properly filed and served on 1st November, 2017.
Mr. O. Ovrawah, learned counsel for the appellant formulated two issues for determination. They are:
ISSUE 1
Whether the learned Justices of the Court below were correct when they held that the trial, conviction and sentence of the appellant under the Corrupt Practices and Other Related Offences Act, 2000 was valid whereas the Corrupt Practices and Other Related, Offences Act 2003 had expressly repealed the 2000 Act
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ISSUE 2
Whether the learned Justices of the Court below were right when they held that the respondent had proved the offences with which the appellant was charged
And for the respondent, its learned counsel, Mr. G. Lawal also formulated two issues for determination.
ISSUE 1
Whether the Corrupt Practices and Other Related Offences Act, 2000 under which the appellant was tried and convicted is a valid law.
ISSUE 2
Whether the respondent proved its case against the appellant beyond reasonable doubt.
After examining both sets of issues for determination I am satisfied that they ask the same question. The appellants issue 1 and the respondent’s issue 1 ask whether the Corrupt Practices and Other Related Offences Act, 2000 is a valid law. While the appellant’s issue 2 and the respondent’s issue 2 ask whether the case against the appellant was proved beyond reasonable doubt. Since both sets of issues ask the same question and they address the real grievance of
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the appellant, i shall resolve this appeal on the issues formulated by the respondent. They are straightforward and more direct to the point.
At the hearing of the appeal on 29 November, 2017 learned counsel for the appellant O. Ovrawah Esq., adopted the appellant’s brief filed on 28 July 2016, and urged the Court to allow the appeal, while learned counsel for the respondent, G. Lawal Esq., adopted the respondent’s brief filed on 1st February, 2017 but deemed duly filed on 1st November, 2017. He urged the Court to dismiss the appeal.
The appellant was a Deputy Superintendent of Police, attached to the office of the Assistant Inspector General of Police Zone 5 Benin City, Edo State. On or about 18 October, 2006 the appellant was involved in the investigation of one Elder Alexander Okiye, who had criminal complaints to answer. In order that the investigation turns out to be favourable to Elder Alexander Okiye the appellant demanded for the sum of N1m (One Million Naira) from him. The learned trial judge found that the act of demanding contravened the provisions of Section 10 (a) (ii) of the Corrupt Practices and Other Offences Act 2000. The Court of Appeal
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affirmed the decision of the trial judge.
ISSUE 1
Whether the Corrupt Practices and Other Related Offences Act, 2000 under which the appellant was tried and convicted is a valid law.
Learned counsel for the appellant observed that the appellant was charged, tried and convicted under the Corrupt Practices and Other Related Offences Act, 2000, a repealed statute. Learned counsel for the appellant further observed that when the appellant was arraigned on 24 November 2006, the statute in force was the Corrupt Practices and Other Related Offences Act, 2003, and not the statute of 2000 which had been repealed. Reference was made to Section 3 of the Revised (Laws of the Federation of Nigeria) Act, 2007. He submitted that the appellant can only be charged under an existing statute. Reliance was placed on Osadebay v. A.G. Bendel State (1991) 1 NWLR (Pt.169) p.525.
Concluding, he submitted that the trial, conviction and sentence are unconstitutional, null and void. He urged this Court to resolve this issue in favour of the appellant.
Learned counsel for the respondent observed that in the year 2003 the National Assembly amended the 2000 ICPC Act in violation of a subsisting order of a
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Federal High Court which restrained all parties from taking action on the subject matter of the suit. He further observed that in Hon. Bala Kaoje & 5 Ors v The National Assembly of the Federal Republic of Nigeria & 13 Ors. Suit No.FHC/ABJ/CS/93/2003, Ruling delivered on 21 May 2003, the Federal High Court declared the ICPC Act of 2003 passed by the National Assembly in violation of the subsisting order of Court as null, void and of no effect, contending that the ICPC Act 2000 is in force. He made reference to AG Ondo State v AG Federation & Ors (2002) 9 NWLR (Pt.772) p.222; Egharevba v F.R.N & 3 Ors (2016) 2 SC (Pt.ii) p.166; FRN v Wabara (2013) 5 NWLR (Pt.1347) p.331
He urged this Court to resolve the issue in favour of the respondent by affirming the decisions of the trial Court and the Court of Appeal in that the appellant was charged, tried and convicted under a valid and subsisting law of the National Assembly.
An accused person charged for an offence can only be charged under the law that creates the offence. Such a law must be in force at the time the offence was committed.
There is no provision in our Constitution to charge an
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accused person under a law that was not in existence at the time the conduct complained of manifested, or to create an offence to crirnimalise a conduct after the act.
A trial conducted under a law that has been repealed, no matter how well conducted and decided is a nullity. See Ogbomor v. State (1985) 1 NWLR (Pt.2) p.223.
After the prosecution closed its case, the learned trial judge heard submission from counsel on whether the ICPC Act 2000 had been repealed. In a considered Ruling delivered on 27 January, 2012 the learned trial judge said:
“I am satisfied that the Corrupt Practices and Other Related Offences Act 2000 commenced in June 2000 and the then President of the Federal Republic of Nigeria, Olusegun Obasanjo signed it into law: I am satisfied that a similar Act passed in 2003 was incorporated in the Revised Edition of the Laws of the Federation of Nigeria 2004 but I am not satisfied that the said Corrupt Practices and Other Related Offences Act was signed by the president of the Federal Republic of Nigeria or given assent to by the President of Federal Republic of Nigeria before it was
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compiled in the Revised Edition (Laws of the Federation of Nigeria) Act 2007 to which he gave assent. It is my humble view that each Law must pass through the proper procedure for it to become a law and it does not become a law by compilation. The learned counsel for the accused has not proved that the President assented to the Corrupt Practices and Other Related Offences Act. Even if it is taken that by giving assent to the Revised Edition (Laws of the Federation of Nigeria) Bill, 2007 on 25 May 2007, the Corrupt Practices and Other Related Offences Act 2003 is deemed to have been assented to which is not my position, this law takes effect in my respectful view from 25 May 2007. It therefore means that the accused person in this case whose trial commenced under the 2000 Act cannot thereby be affected by this new Act.
However, I am bound by the decision in Wabara & Ors v Federal Republic of Nigeria cited by Mr. Erewa. I therefore hold that the Act under which this accused person stands trial is not repealed and remains valid.”
What did the Court of Appeal have to say on the above. That Court said:
“…It is not in contention that the
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Corrupt Practices and Other Related Offences Act, 2000 remained valid law unless amended or avoided by a law validly made by the National Assembly. The crucial question therefore is, whether from the provisions of the revised Edition (Laws of the Federation of Nigeria) Act, 2007 it can be read that the 2000 Act was repealed therein, and consequently that the appellant’s trial, was based upon a repealed Law
A dispassionate look at the section above cited show that the Act repealed therein is the Corrupt Practices and Other Related Offences Act 1990. Even were it to be held that the 2007 Act gave life to the 2003 Act, same was assented to on 25 May 2007, months after the commencement of the present case before the trial Court. Furthermore, the 2013 Act having been declared null and void having no effect, and the 2000 Act remaining the extant law, unless amended or avoided by any subsequent valid law, it can safely be assumed that the 2000 Act still remains in force. This is even more so where Section 2 of the 2007 Act is taken into consideration, which reads:
S.2 Any inadvertent omission, alteration of any existing statute shall not affect the
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validity and applicability of the statute.
It is my candid view therefore that the 2000 Act solidly stands, and the appellant was duly and rightly tried under the 2000 Act, which was the law in force.”
I have read both views and relevant legislation on the matter. I am in complete agreement with the reasoning of both Courts. To my mind the issue appears straightforward.
There is in existence the Corrupt Practices and Other Related Offences Act of 2000. In 2003 the National Assembly promulgated the Corrupt Practices and Other Related offences Act of 2003. It has as its commencement date 18 May 2003. In Section 55 supra the Corrupt Practices and Other Related Offences Act, 2000 was repealed. See Laws of the Federation Vol.3 Chapter C31 – 1. Four days after 18 May 2003, that is on 21 May, 2003 a Federal High Court Abuja in Suit No.FHC/ABJ/CS/93/2003. Hon. Bala Kaoje & 5 Ors. v. The National Assembly of the Federal Republic of Nigeria & 13 Ors, declared the ICPC Act of 2003 passed by the National Assembly in violation of a subsisting Court order null, void and of no effect, and revalidated the ICPC Act of 2000.
In the absence of an appeal from the decision of the
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Federal High Court that Ruling remains inviolate until set aside. The law in force is the Corrupt Practices and Other Related Offences Act 2000 and not the Corrupt Practices and Other Related Offences Act 2003. See FRN v. Wabara (2013) 5 NWLR (Pt.1347) p.331; AG Ondo v. AG Federation & 35 Ors (2002) 9 NWLR (Pt.772) p.222; Egharevba v. FRN (2016) 2 SC (Pt.iii) p.166.
I must observe that since 2003, in the compilation of laws of the Federation the Corrupt Practices and Other Offences Act 2003 could be found. See Laws of the Federation, Vol.3 Chapter C 31 -1 (updated to the 31st Day of December, 2010). A law attains legitimacy and is valid only after it passes through the well laid down procedure. When a law is declared null and void by a Court of law, as is the case with the 2003 statute, it remains so in the absence of a contrary declaration from the Court. When legislation that should not be in the statute books finds its way there, it can only mean that those that did the compilation were not aware of the Court order.
The Corrupt Practices and Other Related Offences Act, 2000 was very much in force when the offences for
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which the appellant was charged and arraigned were committed.
We are satisfied that the Order of a Federal High Court in Hon. Bala Kaoje & 5 Ors v. The National Assembly of the Federal Republic of Nigeria & 13 Ors. Suit No.: FHC/ABJ/CS/93/2003 which declared the 2003 statute null and void revalidated the 2000 statute.
Consequently, the Corrupt Practices and Other Related Offences Act 2000 is valid. The appellant was tried and convicted on a valid law.
To succeed under count 1 and 3 the prosecution must prove the following beyond reasonable doubt.
(a) That the accused person is a public officer.
(b) That the accused person received or obtains any property or benefit of any kinds for himself or for any other person for anything already done or omitted to be done or for any favour or disfavor already shown to any person by himself in the discharge of his official duties, or in relation to any matter connected with the functions, affairs or business of a government department or corporate body or other organization or institution in which he is serving as an official.
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(c) That he asked for the benefits in the course of his official duties.
(d) That the accused person failed to report the offer of gratification to any officer of the Independent Corrupt Practices Commission (ICPC).
Lord Denning explained proof beyond reasonable doubt in Miller v Minister of Pensions (1947) 2 ALL ER p.372 and this explanation was adopted by this Court in Lori & Anor v State (1979-1981) 12 NSC p.269 and in innumerable decisions of this Court. His Lordship said:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable the case is proved beyond reasonable doubt but nothing short of that will suffice.”
Learned counsel for the appellant submitted that evidence led by the respondent was riddled with inconsistencies and contradictions enough to raise reasonable doubt in the minds of the Courts below.
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He further submitted that these doubts should have been resolved in the appellants favour. Learned counsel observed that in testimony in Court PW1 said:
“I and the team members sought and got the sum of N500,000 from the operations funds set aside for such operations in the ICPC. As was standard practice, we photocopied the whole N500,000 in N500 notes of ten bundles totaling 1000 pieces. I also recorded the serial numbers of N500,000 in my own handwriting in the exhibit register kept in my custody.
But in his statement he said:
“….On arrival, I took the lawyer before my head of Department – Bar Falade. We deliberated on the petition and Bar Iluobe arranged for the exhibit money. Suffice it to say that while arrangements were being made, the petitioner was asked to reach DSP Temple to accept N500,000 as part payment for the total sum of N1,000,000.”
He observed that the only reasonable interpretation is that the complainant, PW2, lawyer Barrister IIuobe who testified as PW3 had provided the exhibit money, contending that this is contrary to the testimony of PW1. He submitted that PW1 is not a credible witness. Reliance was placed on Nwabueze & Ors v. State (1988) 7 SC (Pt.ii) p.157.
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He further submitted that another piece of inconsistency was in respect of the date on which the demand was made contending that the respondent’s case did not clear the air around the date the demand for the bribe was made and the source of the money. He further submitted that PW1, PW2 and PW3 are tainted witnesses Reliance was placed on Ishola v. State (1978) 9-10 SC p.59.
Finally he submitted that count 3 lacked precision and is ambiguous contending that the conviction of the appellant on it occasioned a grave miscarriage of justice. He urged this Court to set aside the conviction.
Learned counsel for the respondent observed that the three ingredients for counts 1 and 3 to wit:
(a) the offender must be a public officer.
(b) that he asked for benefit of any kind for or for any other person in respect of something to be after words done.
(c) that he asked for the benefit in the course of the discharged of his official duties.
Were each proved beyond reasonable doubt, contending that the evidence of the prosecution witnesses was uncontroverted and not contradicted. Reliance was placed on
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Ajibade v. State (2013) 8NCC p.221.
Concluding he observed that the appellant failed to provide compelling and convincing reason to overturn concurrent findings of the two Courts below.
A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated not when there is just a minor discrepancy between them. Two pieces of evidence contradicts one another when they are themselves inconsistent. A discrepancy may occur when a piece of evidence stops short of, or contains a little more than what the other evidence says or contains some minor difference in details. See Gabriel v State (1989) 5 NWLR (Pt.122) p.460.
If a witness makes a statement before trial which is inconsistent with the evidence he gives in Court and he does not explain the inconsistency to the satisfaction of the Court, the Court should regard his evidence as unreliable. See
Onubogu & Anor v State (1974) (NSCC) p.358.
I must say straightaway that it is only material contradictions that are to be considered. The issue is whether a demand was actually made.
A mix up as to the dates the demand was made in the
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testimony of PW1 and PW2 to my mind is a minor discrepancy. If these discrepancies do not prop up in testimony in Court it may lead to the suspicious that the witnesses were tutored.
I am satisfied that there are no material contradictions in the testimony of the witnesses especially on whether the appellant demanded for N1million from PW2.
I have examined the statement of PW1 and his testimony in Court on the issue of marked money and who provided it. I am satisfied that his testimony in Court did not contradict his statement, rather it contains a little more than what he said in his statement. This is a minor discrepancy and is in no way a material contradiction. I am satisfied that there is no material inconsistency in the testimony of PW1 and his statement.
Whether the prosecution witnesses are tainted witnesses.
A tainted witness is a witness who has some purpose of his own to serve. After examining the testimony of the prosecution witnesses, I am satisfied that they gave evidence on what they saw during the investigation of the case and came to Court to say exactly what
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transpired .It was not shown that by their testimony they had some purpose of their own to serve. They are indeed witnesses of truth and not tainted witnesses.
Whether there was miscarriage of justice.
Miscarriage of justice is a failure of justice. There is a miscarriage of justice where there are grave or serious errors in the proceedings as to make the proceedings fundamentally flawed. It means failure of the Court to do justice. See Enawakponmwhem Aigbobahi & Ors v. Edokpayi Aifuwa & Ors (2006) 6 NWLR (Pt.976) p.270; Amadi v. NNPC (2000) 10 NWLR (Pt.674) p.76;Kalu O. Irolo & Ors v. Ebe E. Uka & Anor (2002) 14 NWLR (Pt.786) p.195. Nnajiofor v. Ukonu (1986) 4 NWLR (Pt.36) p.505.
I fail to see any error in the proceedings which led to the conviction of the appellant by the learned trial judge. I find the handling of the trial by the learned trial judge commendable. That explains why the Court of Appeal had no hesitation affirming the judgment of the trial Court and describing it as a sound decision. I am satisfied that there was no miscarriage of justice.
To find out if this case was proved beyond reasonable it
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is important that the facts of the case are examined to see if there is sufficient evidence in proof of (a) to (d) earlier alluded to in this judgment.
(a) That the accused person is a public Officer.
It is not in doubt that at the time the offence was committed the appellant was a Deputy Superintendent of Police DSP. See page 113 of the Record of Appeal where the appellant said “I am a Police Officer, a Superintendent of Police. At the time I was arrested, I was a Deputy Superintendent of Police. I got my promotion while I was in the cell in Abuja.
A Deputy Superintendent of Police is a public officer. I am satisfied that by the appellant’s own admission he is a public officer. That the appellant is public officer has been proved beyond reasonable doubt.
(b) That the accused person received or obtains any property or benefit of any kind for himself or any other person for anything already done or omitted to be done or for any favour or disfavour already shown to any person by himself in the discharge of his official duties or in relation to any matter connected with the functions, affairs or business of a government department or corporate body or other organization or institution in which he is serving as an
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official.
Evidence led by the prosecution witnesses show that the appellant made a demand from PW2 for N1m. Relevant extracts from the testimony of PW2 highlights this fact. He said:
“The accused told me that I am a Petroleum products diverter, a pipeline vandal and that I owe the petitioner Monday Ebhohimen N2.7million. After about 9 hours I was granted bail. The accused person then called me aside and asked me to see him privately. I had been given a date to report back on 18/10/2006 but he asked me to see him the next day. The following day, I went to the accused who called me aside and said that he would need N1 million from me otherwise the way he would investigate the case would require him arresting my staff, senior NNPC staff and impounding my trucks, tankers and vehicles…That he prefers one giving him N1 million so that he would not destabilize my business and that he would give me a favourable report.”
Under cross-examination PW2 was emphatic when he said:-
. I pleaded with accused that I did not have N1 million he demanded. I could only offer N300,000. He still refused….
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PW3 gave evidence on this issue of the accused person demanding N1m. He said:
PW2 told me that after the general meeting the accused person called him and told him privately that the alternative to paying that N2 million to Monday is that PW2 would pay N1 million for a favourable report to be written by him and that he would write a favourable report stating that the matter is civil and there is no criminality in the case. I asked PW2 if he will allow me to confront the accused with the claim and he agreed…. I told him what PW2 told me and he confirmed it. That he demanded for N1 million to help PW2.”
My lords, I am satisfied on the evidence of the prosecution witnesses, especially PW2 and PW3 which remained unshaken under cross examination that the appellant demanded/requested for gratification of N1 million from PW2. The whole purpose of the demand was for the appellant to write a favourable report for PW2 as regards the case being investigated by him. (b) was proved beyond reasonable doubt.
(c). That he asked for the benefit in the course of his official duties.
The appellant, a senior police officer was detailed to
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investigate criminal allegations against PW2 which arose from a petition forwarded to him by his superiors.
It was in the course of his official duties (i.e. while investigating the contents of the petition against PW2) that he asked for the benefit. (i.e. the sum of N1 million). I am satisfied that he asked for benefit in the course of his official duties.
(d). That the accused person failed to report the offer of gratification.
Under Count 3, failure to report offer of gratification to an officer of the Independent Corrupt Practices Commission (ICPC) offends Section 23 (1) of the ICPC Act 2000.
At no time did the appellant report to any officer of the ICPC or the Police any issue of gratification. Count 3 is thus proved beyond reasonable doubt, since the appellant failed to make a report.
In the end the appeal lacks merit. The judgment of the Court of Appeal is affirmed.
Appeal dismissed.
SC.783/2015