3PLR – MILTON PAUL OHWOVORIOLE V. FEDERAL REPUBLIC OF NIGERIA
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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MILTON PAUL OHWOVORIOLE
V.
FEDERAL REPUBLIC OF NIGERIA
COURT OF APPEAL
ABUJA JUDICIAL DIVISION
19TH JUNE, 2001
3PLR/2001/216 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
DAHIRU MUSDAPHER
ALBERT GBADEBO ODUYEMI
ISA ABUBAKAR MANGAJI
BETWEEN
MILTON PAUL OHWOVORIOLE, SAN
AND
- FEDERAL REPUBLIC OF NIGERIA
- MIKA ANACHE
- CHIEF ADEBIYI OLAFISOYE
- ADEYEMI OMOWUNMI
REPRESENTATION
Chief (Dr.) Babashola Rhodes, S.A.N., with I.C. Ubosi, Esq., J. Akanike, Esq., Miss P.B. Akpele, Messrs E. Ohawovoriole and Martins Momodu) for the appellant.
Mrs. C. Onuagu – Assistant Director, Federal Ministry of Justice with Mrs. O.O. Fatunde, Assistant Chief Legal Officer; Mr. Sanusi Kado, Senior Legal Officer and Mr. Bayo Taiwo, Legal Officer – for the 1st respondent.
Ibrahim Idris, Esq., with Mrs. J.E. Obanu and Miss U.A. Okeke – for the 2nd respondents.
Prof. S.A. Adesanya, S.A.N., with Mr. W. Kasali – for the 3rd and 4th respondents.
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE –Criminal Procedure Code – application of same to offences created under the Penal Code – extent of its application to offences created under the Corrupt Practices and Other Related Offences Act 2000.
INTERPRETATION OF STATUTES – Criminal Procedure Code, section 185(b), Corrupt Practices and Other Related Offences Act, 2000 and 1999 Constitution section 36(4) – compatibility of provisions considered.
PRACTICE AND PROCEDURE – STATUTES – Criminal Procedure Code – application of same to offences created under the Penal Code – extent of its application to offences created under the Corrupt Practices and Other Related Offences Act 2000.
ALBERT GBADEBO ODUYEMI, JCA (Delivering the leading judgment)
By an application filed in the registry of the High Court of the Federal Capital Territory Abuja on 22nd May, 2001. The Attorney-General of the Federation on behalf of the 1st respondent applied to the court for consent to prefer a criminal charge against the, 2nd ,3rd and 4th respondents in the appeal. The application was made under section 185(b) of the Criminal Procedure Code. Accompanying the application were the following annexures:-
- A copy of the charge in respect of which leave is sought.
- Names and addresses of witnesses.
- Proof of evidence which shall be relied upon at the trial.
By an order of the court dated 22nd day of May, 2001 the court granted its consent to the 1st respondent to prefer a direct criminal charge jointly and against the applicant, the 2nd, 3rd and 4th respondents in the terms of the copy of the charge annexed to the application for consent – as 4th, 1st, 2nd and 3rd accused persons respectively. The first two counts of the charge related to conspiracy by the 2nd,3rd and 4th accused persons and the giving of gratification of N3.5 million by them to the 1st accused person contrary to the Corrupt Practices and Other Related Offences Act 2000 while counts III and IV respectively charged the 1st accused person being a public officer, with the receipt of the gratification from the 3rd accused person and failure to report the same contrary to the said Act.
On 25th May,2001 the appellant – who was listed as 4th person brought before the court an application that the charge preferred against him be quashed on the grounds that:-
“i. the offences alleged therein are not disclosed by the statements and/or proof of evidence before the court and
- the said charge is an abuse of the process of the honourable court.”
The application was argued. In a considered ruling delivered on 1st June,2001 the court dismissed the application for the charge against the 4th accused person to be quashed and ordered that the charge against the 4th accused person be read and his plea taken. It is against that ruling that the 4th accused person has now appealed to this court. The appellant filed in the lower court a notice of appeal containing four grounds, shorn of their respective particulars, the grounds read:-
“Ground One.
The learned trial Judge erred in law when he failed to apply the principles of law enunciated in Ikomi v. State (1986) 3 NWLR (Pt. 28) page 340 relating to grounds upon which a consent given for the preferment of an information and/or charge may be quashed by the trial Judge and thereby occasioned a miscarriage of justice.
Ground Two
The learned trial Judge erred in law when he held that the prosecution had made out a prima facie case against the 4th accused appellant when all that was contained in the proof of evidence as at 22nd May, 2001 when the court granted consent to prefer charges against the 4th appellant were the statements of the accused persons without the statement of the witnesses for the prosecution as at 22nd May 2001 when he granted his consent to prosecute the 4th accused/appellant contrary to the principles of fair hearing enshrined by section 36 of the Constitution of the Federal Republic of Nigeria 1999 and thereby occasioned a miscarriage of justice.
Ground Three
The learned trial Judge misdirected himself on the facts when he took into consideration documents contained in the counter-affidavit of the prosecution dated the 1st day of June 2001 and the statement of Adeyemi Adefulu which were not available to the trial court on 22/5/2001 when the trial court granted the consent to prefer charges against the 4th accused/appellant contrary to the principles of law established in Egbe v. The State,(1980) 1 NCR (Pt. 341) 344. that upon a motion to quash a consent to prosecute the trial Judge should confine himself to the statements available to him at the time of the consent and not upon the consideration of subsequent statements filed by the prosecution in their counter-affidavit.
Ground Four
The ruling is against the weight of evidence.
More grounds may be filed upon the receipts of records.”
Appellant also seeks as relief:
“Relief sought from the Court of Appeal.
An order setting aside the ruling of the High Court and entering judgment in favour of the appellant for an order quashing the charge filed on 22/5/2001 in respect of the 4th accused/appellant.”
By an application filed in the registry of this court on 5th June,2001, the appellant sought inter alia for:-
- An order to depart from the rules of this honourable to regard the bundle of papers attached and marked as exhibit ‘A’ therein as being sufficient for the purposes of this appeal.
- An order to dispense with the filing of brief of argument by the appellant and the respondents so that the appeal may be argued on the bundle of documents marked as exhibit A before this honourable court in the interest of justice.
- An order to accelerate the hearing of the appeal.
In support of the application, there was attached:
(i) An affidavit of urgency;
(ii) An affidavit in support together with annexures A and B thereto; and
(iii) A verifying affidavit respectively dated and filed 5th June, 2001. There was also filed in this court on 8th June, 2001 a further and better affidavit to which supplementary record to exhibit A being a certified true copy of the ruling of the lower court given on 1st June, 2001 was annexed.
With the consent of parties this court granted the above three prayers when the application came up on 11th June, 2001 and ordered that this appeal be heard out of its turn. Also, with consent of the parties the court heard the appeal on that day. Judgment was then reserved for today. For the appellant, Chief B. Rhodes, SAN formulated the only issue for determination thus:-
“whether the statements of the accused persons attached to the proofs of evidence in the absence of any statement or evidence or documents including police diary from the prospective prosecution witnesses disclosed any offence against the appellant before the consent was granted by the learned trial Judge i.e. whether the learned trial Judge was right not to have quashed the consent on the application of the applicant.”
For the 1st respondent, Mrs Onuogu, learned assistant Director, Federal Ministry of Justice framed the only issue for determination thus:-
“whether the learned trial Judge was right in holding that there was ground for proceeding with the trial of the appellant herein.”
In his argument before this court, Chief Rhodes, SAN submitted thus –
Reading ground 1 of the grounds of appeal at p.80 of the record, he contends that there was no link between the proofs of evidence before the trial Judge and the charge filed as far as the appellant is concerned. That there was no iota of evidence as contained in the documents before the trial Judge when he granted the consent.
That the four statements of the accused persons exhibited in the proof of evidence available before the Judge at the time when he gave consent made no mention of the appellant whatsoever in connection with any crime or offence. That the appellant in his own statement to the police at pp.56-59 stated that he knew chief Adefulu, one of the prosecution witnesses listed in the list of witnesses but denied giving any bribe to Chief Adefulu. That there ought to have been a statement before the learned trial Judge of the lower court whereby chief Adefulu made the allegation linking appellant with the offence charged. That the matters referred to in paragraph 4 of the counter-affidavit sworn to on behalf of the 1st respondent herein which was filed in the lower court on 1st June, 2001 at pages 60 and 61 of the record were not before the learned Judge of the lower court when he granted consent on 22nd May, 2001. That there was no prima facie case to warrnat the consent to prefer a charge against the appellant. That the discretion of the learned trial Judge has not been exercised judicially and judiciously. That it was proper for the appellant to refuse to enter a plea to the charge on account of the challenge which he made against the consent on which the charge was based. That there is no room to assume that the person listed in the proof of evidence would come to give evidence that is not in the proof. That in this case, section 185(b) of the Criminal Procedure Code was the applicable law and as such whatever other law may be applicable there must be prima facie evidence against the appellant before the Judge could properly give consent to the preferment of the charge. He urges the court to quash in its entirety the indictment preferred against the appellant. He relies on:
(i) Enuma v. The State (1997) 1 NWLR (Pt. 479) p. 115 at p. 117;
(ii) Fred Egbe v. The State (1980) 1 NCR p. 341 at p. 344;
(iii) Ikomi v. The State (1986) 3 NWLR (Pt.28) p. 340 at pp. 358, 372-376;
(iv) section 340 of the Criminal Procedure Act Cap. 80 LFN 1990; and
(v) section 185(b) of the Criminal Procedure Code.
For the 1st respondent, Mrs. Onuogu – learned assistant Director in support of the issue for determination as framed by her submits thus –
That the appeal before this court is against the ruling of the lower court given on 1st June, 2001 refusing to quash the charge preferred against the appellant. Pointing out that there is no appeal before this court against the order of the lower court made on 22nd May, 2000 granting consent to prefer the charge against the appellant, learned counsel therefore contends that the grounds of appeal, which as framed, challenge the order granting consent on 22nd May, 2000 are not competent grounds for appealing against the refusal to quash the order granting consent. That in consequence, the grounds of appeal cannot be used for that purpose. That failure to appeal against the order of consent is fatal to appellant’s appeal as the lower court could not set aside its own decision or sit on appeal over its own decision. That the grant of consent by the learned Judge of the lower court is in the exercise of the discretion of the court by virtue of the provisions of s.185(b) of the Criminal Procedure Code. That whether that discretion was exercised rightly or wrongly there has been no appeal on it; and as such the grounds of appeal are incompetent. Learned counsel continues her arguments and submission thus –
That the question that would operate in the mind of this court at this stage of the proceeding is – What is prima facie case? She then answers that at this stage prima facie case is not evidence that would ground a conviction but that on the facts of this case particularly having regard to the statement of the appellant, it is evidence which would make it necessary for the appellant to explain himself during the trial. She therefore submits that the learned trial Judge was right in giving consent for the charge being framed against the appellant. She contends that there is a distinction between the provisions of the Criminal Procedure Code and those of the Criminal Procedure Act. That the cases cited and relied upon by the learned counsel for the appellant are cases to which the provisions of section 340 of the Criminal Procedure Act related and not those, as in this case, to which the Criminal Procedure Code apply.
Learned counsel further submits that there exists a clear relationship between the appellant and Chief Adefulu, one of the witnesses listed as prosecution witnesses. In an apparent reference to paragraph 5 of the counter-affidavit sworn to on behalf of the state filed at pages 60 – 61 in the record of proceedings before the lower court on 1st June, 2001. Counsel submits that by sections 121 and 122(2) of the Criminal Procedure Code the contents of the case diary include the statement of witnesses — which is a marked deviation from the procedure under the Criminal Procedure Act upon which the authority in Ikomi’s case was predicated.
Learned counsel therefore submits that the evidence before the lower court at the time when it granted the consent was sufficient as the witness in question was not a stranger to the appellant. It is her further contention that at this stage of the proceedings prima facie case means that there is need to proceed in spite of the denial of the appellant in his statement, and that the right of appellant is in making a “No case” submission at the close of the prosecution’s case. That demurrer should not be encouraged as it places the court in an invidious situation of making a decision on a matter which is not yet before it.
Counsel urges this court to uphold the decision of the learned Judge of the lower court and dismiss the appeal. Counsel relies on:
(i) Ikomi v. The State (1986) 1 NSCC p. 731 at p. 746;
(ii) Abacha v. The State (2001) 3 NWLR (Pt. 699) p. 35 at p. 38;
(iii) Gafaria Ajidagba & Ors. v. Inspector- General of Police (1958) 3 FSC 5;
(iv) Criminal Procedure Act, S. 340
(v) Criminal Procedure Code, Ss. 121; 122(2) and 185(b).Both Mr. Ibrahim ldris of counsel for 2nd respondent and Professor S. A. Adesanya, S.A. N. for 3rd and 4th respondents associate themselves with the submissions of Chief Rhodes, S.A.N. At this stage the court invited attention of learned counsel for the parties to the provisions of section 64 of the Corrupt Practices and Other Related Offences Act No. 5 of 2000 and sought to know from respective counsel, if the Act of 2000 has not affected the provisions of section 185(b) of the Criminal Procedure Code or of section 340 of the Criminal Procedure Act with regard to the contents of the application for leave or consent of the court – particularly in relation to the proof of evidence. Chief Rhodes S.A.N., submits that whatever the Act may say if it is in conflict with section 36 of the Constitution of the Federal Republic of Nigeria, it would be overridden by the provisions of section 36. Mrs. Onuogu submits that section 64 of Act No. 5 of 2000 is applicable to the contents of the application for consent and does not conflict with the provisions of section 36 of the Constitution.
She therefore contends that in, the light of section 64 of the Act the evidence before the court was sufficient to ground the consent and that the issue of prima facie case would be taken care of when the trial comes before the court. Mr. Ibrahim ldris contends that section 64 of the Act is inconsistent with section 36 of the Constitution and is to the extent of the inconsistency void. That the trial Judge invoked the provisions of section 185(b) of the Criminal Procedure Code in giving consent and not those of section 64 of Act No. 5 of 2000. Professor Adesanya, S.A.N. refers to section 36(4) of the 1999 Constitution which deals with Criminal Proceedings and submits that certain exceptions are given in that sub-section but these exceptions do not include concealment of identity. Accordingly, he contends that section 64 is null and void being not within the exceptions in section 36(4) of the Constitution. It is his further submission that the fair-hearing provisions of the constitution apply to the preferment of a charge. In the considered ruling of the learned Judge of the lower court which is the subject of this appeal he warned himself of the need to take care when reviewing the statements of the respective accused persons to the police so as not to pre-empt the substance of the substantive charge. I must also in this judgment take care not to tread upon the issues for consideration in the event of a future trial of the charges under consideration in this appeal. In the submission of learned counsel for 1st respondent, it is her case that this appeal is against the ruling of the lower court on the application to quash the charge which was delivered by the lower court on 1st June, 2001 when in fact the grounds of appeal focused on attacking the consent to prefer charges given on 22nd May, 2001. She considers that an appeal not having been lodged against the exercise of the discretion of the learned Judge to grant consent, the failure to appeal on the order of consent is fatal to the present appeal.
It has to be pointed out that what in fact the appellant in this court has done by way of the application to the lower court filed in that court on 25th May, 2001 is what in the circumstances of this case is required of the appellant by section 353(2)(a) of the Criminal Procedure Act in the event of proceedings preliminary to trial taken under section 340 of the Act which in some respects have a bearing on similar proceedings under section 185(b) of the Criminal Procedure Code. The Act requires that the objection should be taken before the accused person has made his plea to the information before the court. Otherwise it would be too late. It follows necessarily that if the application to quash the charge is refused by the court as in this case, the only available procedure for the appellant to attack the consent would be by way of an appeal against the ruling which refused to quash the consent. In the event, I overrule the objection by the 1st respondent against the grounds of appeal in this case. I hold that the grounds of appeal as framed are competent. So is the only issue framed by either side to this appeal on the grounds of appeal. The main thrust of the arguments of the appellant is two – pronged viz –
(a) That the four statements of the accused persons in proof of evidence, without more, do not disclose an offence against the appellant, and
(b) That if an offence is disclosed, there is nothing to link the appellant with such offence.
It is agreed by all concerned that the application in this case was made under the provisions of the Criminal Procedure Code operative by virtue of the Criminal Procedure Code Law, Cap. 30 Laws of Northern Nigeria 1963 as applicable in Criminal prosecutions in the Federal Capital Territory, Abuja. It is observed that the application of the 1st respondent who was the complainant in the lower court for the consent of the court which is at page1 of the bundle of documents produced by appellant, (which by consent of parties is by order of this court to be used as the record of proceedings of the lower court in this appeal) shows that the following documents were attached to the application viz –
- A copy of the charge in respect of which leave is sought – pages 3 and 4
- Names and address of witnesses – page 8, and
- (i) proof of evidence which shall be relied upon at the trial in respect of the prosecution witnesses – pages 5, 6 and 7 and
(ii) The statements of the accused persons – pages 9 to 28.
It is contended for the appellant that the averment in paragraph 4 of the counter-affidavit on 1st June, 2001 at page 60 of the bundle of documents – which avers the existence of a certain statement by chief Adefulu one of the prosecution witnesses was not available for the consideration of the learned Judge of the lower court on 22nd May when the court made the order granting consent – reliance being placed on Enuma v. The State (1997) 1 NWLR (Pt. 479) p. 115 at p. 117. For the moment one may ignore the document averred in paragraph 4. But I cannot ignore the averment in paragraph 5 of the same counter – affidavit at p.61 which reads thus:-
“That the statement of Chief Adefulu is contained in the case diary.”
I cannot ignore paragraphs 5 because that paragraph at p.61 of the record forms a 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. Learned counsel for 1st respondent has invited the attention of this court to sections 121 and 122 of the Criminal Procedure Code which I reproduce hereunder-
“121. (1) Every officer in charge of a police station conducting an investigation under section 118, or any police officer deputed by the officer in charge of a police station to conduct such investigation, shall keep a case diary in which he shall set forth in chronological order-
(a) the time when he began his investigation;
(b) any information received by him in connection with the investigation;
(c) the time when such information reached him;
(d) the places visited by him;
(e) any action required to be taken or directions given by a court in the course of the police investigations or the inquiry by the court, and any facts ascertained as a result thereof;
(f) any report made by any police officer acting on his instructions;
(g) the statement of any witness, if reduced to writing;
(h) a statement of the circumstances ascertained through his investigation;
(i) the time when he closed the investigation.
(2) The first information report or a copy thereof shall in all cases be attached to and form part of the case diary.
- (1) Save in so far as expressly permitted in this Criminal Procedure Code a case diary shall not be admissible as evidence against any accused person in any inquiry or trial, but-
(a) a court may if it shall think fit order the production of the case diary for its inspection under the provisions of section 144;
(b) the Attorney-General may at any time order the submission of the case diary to himself;
(c) any relevant part of the case diary may be used by a police officer who made the same to refresh his memory if called as a witness.
(2) Save to the extent to which the case diary is used for the purposes set out in paragraph (c) of subsection (1) the accused or his agent shall not be entitled to call for or inspect such case diary or any part thereof.”
Now, the opening paragraph of the order dated 22nd May 2001 by which the learned Judge of the lower court granted consent reads –
“Upon hearing C.I. Onuogu (Mrs) counsel for the applicant seeking this honourable court for an order for direct criminal charge under section 185(b) of Criminal Procedure Code against the four accused persons. Namely:-
……………………………………………………………………..”
I must now examine the correctness of the submission on behalf of appellant that on the face of the records, the learned Judge of the lower court did not have sufficient materials – and in particular, the evidence of Chief Adefulu, one of the prosecution witnesses when he was considering the application for consent. We have seen in paragraph 5 of the counter-affidavit of 1st respondent that the statement was available in the case diary which the police investigator is required to keep. We have also seen that the court is empowered to order for the production of the case diary for its inspection. It is also seen that the Attorney-General also may at any time order the submission of the case diary to himself. I find two unidentical letters both dated 5th June, 2001 written from the professional chambers of the appellant addressed to the registrar of the lower court at pages 85 and 86 of the record of proceedings. Page85 reads:-
“The Chambers of Milton Paul Ohwovoriole, S.A.N.
Tosil House:
53,Opebi Road,
P.O. Box 7266,
Ikeja, Lagos.
Telephone: 4937134
5th June, 2001.
The Registrar
High Court, 10
Abuja.
Dear Sir,
RE: Charge No. CR/1/2001 Federal Republic of Nigeria via Mika Anache & 3 Ors.
We hereby apply for the certified true copy of the ruling of this honourable court dated 1st of June 2001 refusing the 4th accused person application to quash the charge against the 4th accused person.
We are prepared to pay for same, please.
Thanks,
Yours faithfully,
(SGD)
J. Akanike Esq.”
Page 86 reads:-
“The chambers of Milton Paul Ohwovoriole, S.A.N.
Tosil House:
53,Opebi Road,
P.O. Box 7266,
Ikeja, Lagos.
Telephone: 4937134
The Registrar
High Court, 10
Abuja.
Dear Sir,
RE: Change No. CR/1/2001 Federal Republic of Nigeria v. Mika Anache & 3 Ors.
We hereby apply for the certified true copy of all the record of proceedings of this honourable court in respect of the above suit.
We are prepared to pay for same please.
Thanks,
Yours faithfully,
(SGD)
- Akanike Esq.”
The reply to p. 85 is the subject of exhibit A1 in paragraph 6 of the further and better affidavit in support of the motion on notice for departure from the rules of this court filed on 5th June, 2001. Exhibit A1 itself was filed in this court on 8th June, 2001 along with the further and better affidavit. One would expect that a reply to page 86 of the record would contain a certified true copy of the record of proceedings in the lower court on 22nd May, 2001 upon which the order for consent at p. 2 was drawn. The further and better affidavit filed on 8th June, 2001 in this court does not contain a certified true copy of the record of proceedings in question. No explanation is given in respect of the absence of that record of proceedings in the further and better affidavit in question.
Section 152 of the Criminal Procedure Law provides :-
“152. When a court taking cognizance of an offence is satisfied that there is sufficient ground for proceeding, it shall after causing process to issue for the attendance of the accused person, if he is not already in custody or on bail, proceed either to hold an inquiry into the offence or to try it provided that the court is competent so to do.”
One is bound in the circumstances to ask whether the omission of the record of proceedings of the lower court at its sitting on 22nd May contained any reference to the inspection of the case diary by the Judge of the lower court or some other evidence which, if produced along with the further and better affidavit filed in this court on 8th June, 2001 would be unfavourable to the appellant. See section 149(d) of the Evidence Act, Cap.112 LFN, 1990. I answer the question in the affirmative. In the event, I am satisfied and I hold that:-
The proceedings for consent of the lower court having been held under the provisions of section 185(b) of the Criminal Code, the learned Judge of the lower court was satisfied that there was sufficient ground for proceeding before the court caused process to issue for the attendance of the appellant for the purpose of trying the offences in the charge. I also hold that the learned Judge of the lower court exercised the judicial discretion vested on him judiciously. In the event I answer the only question for determination in this appeal in favour of the 1st respondent. As I indicated earlier, this court suo motu called for addresses from learned counsel for the parties in this appeal as to the question whether in the particular case of a prosecution under the provisions of the Corrupt Practices and Other Related Offences Act, No. 5 of 2000, the procedure under section 185 of the Criminal Procedure Code or that of section 340 of the Criminal Code Act has not been affected by the provisions of the Act of 2000.
Learned counsel for appellant and of 2nd, 3rd and 4th respondents respectively retort that these proceedings to which these appeal relate were under the provisions of section 185 of the Criminal Procedure Code alone but that the provisions of section 64 of the Act are void on the ground of inconsistency with section 36 of the Constitution. The learned senior counsel for 3rd and 4th respondents was specific that the section of the Act contravened section 36(4) of the Constitution which is as applicable to pre-trial proceedings as to trial proceedings. On the other hand, learned counsel for 1st respondent submitted that section 64 of the Act is applicable to the contents of the application for consent to prefer a charge and is not in conflict with the provisions of section 36 of the Constitution. She also contends that in the light of section 64 of the Act, the evidence before the court was sufficient to ground the consent since the issue of prima facie case would be taken care of when the trial of the charge comes up in court. Section 64 of Act No. 5 of 2000 is reproduced below in full –
“64. (1) Subject to subsection (2), where any complaint made by any officer of the Commission states that the complaint is made in consequence of information received by the officer making the complaint, the information referred to in the complaint and the identity of the person from whom information is received shall be secret between the officer who made the complaint and the person who gave the information, and everything contained in such information , identity of the person who gave the information and all other circumstances relating to the information, including the place where it was given, shall not be disclosed or be ordered or required to be disclosed in public but only to the trial Judge and the defence lawyer in attendance in any civil, criminal or other proceedings in any court or tribunal.
(2) If any book, paper or other document, or any visual or sound recording, or other matter or material which is given in evidence or liable to inspection in any civil, criminal or other proceedings in any court, or other authority as are referred to in sub-section (1) contains any entry other matters in which any person who gave the information is named or described or shown, or which might lead to his discovery, the court before which the proceedings are held shall cause all such parts thereof or passages therein to be concealed from view or to be obliterated or otherwise removed so far as is necessary to protect such person from discovery.
(3) Any person who gives the information referred to in subsection (1) knowing the information to be false shall be guilty of an offence and shall on conviction be liable to imprisonment for a term not exceeding ten years, and shall also be liable to a fine not exceeding one hundred thousand naira;
Provided that subsections (1) and (2) shall not reply (sic) to any investigation or prosecution for any offence arising from any breach of the provisions of this subsection.”
It is obvious that the section devises a special procedure to protect the identity of informers and of information from the public but that such identity not withstanding have to be revealed in court to both the trial Judge and the defence lawyer in attendance in any civil, criminal or other proceedings in any court or tribunal. When compared with section 36(4) of the Constitution which is applicable to the trial of an offence I can see little difference in the provisions of both enactments except that section 64 of the Act contains more generous provisions with regard to the admission of members of the public at a court trial than is provided under section 36(4) of the Constitution. Section 36(4) of the Constitution reads –
“(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal;
Provided that
(a) a court or such a tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interest of justice;
(b) if in any proceedings before a court or such a tribunal, a Minister of the Government of the Federation or a Commissioner of the Government of a state satisfies the court or tribunal that it would not be in the public interest for any matter to be publicly disclosed, the court or tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.”
In so far as pre-trial proceedings are concerned, learned counsel for the appellant the 2nd, 3rd and 4th respondents have defended the sanctity of ex-parte pre-trial proceedings in this court on the propriety of not subjecting innocent citizens to the rigours of a criminal trial if from the initial stage it is obvious that not only is the evidence available against the citizen in respect of the offence weak, but that at the end of the day it will not sustain a conviction; thus resulting in abuse of the process of court. Heavy reliance was placed on the Ikomi ‘s case supra (at page 365). It appears to me that they have now shifted ground in their condemnation of section 64 of the Act in the argument that ex-parte pre-trial proceedings are undesirable. Finally, it must be pointed out that the special procedure provided in section 64 of the Act is very well accommodated within the provisions of section 5 of the Criminal Code Law, Cap 30 Laws of Northern Nigeria which reads:-
“5. (1) All offences under the Penal Code shall be investigated, inquired into and otherwise dealt with according to the provisions contained in the Criminal Procedure Code.
(2) All offences against any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any law for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
(3) Notwithstanding the provisions contained in subsections (1) and (2), a native court shall only be bound by the provisions of the Criminal Procedure Code to the extent specified in Chapter XXXIII thereof.”
In the event, I hold also, in respect of the issue raised suo motu in the course of hearing this appeal that the proof of evidence in the case under appeal and the papers relating thereto at pages 3-28 of the record of proceedings before the lower court are in accordance with the provisions of section 185(b) of the Criminal Procedure Code when read along with section 64 of the Corrupt Practices and Other Related Offences Act, No. 5 of 2000.
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.
DAHIRU MUSDAPHER, JCA: On the 22nd day of May, 2001 Mrs. C. Onuogu on behalf of the Attorney-General of the Federation applied for leave to prefer a criminal charge against the appellant and the 2nd, 3rd and 4th respondents herein in the High Court of the Federal Capital Territory, Abuja. Attached to the application were:-
- A copy of the charge sheet in respect of which leave was sought.
- Names and addresses of witnesses.
- Proof of evidence.
The charge sheet contained four counts all contrary to the provisions of the Corrupt Practices and Other Related Offences Act 2000. It should be mentioned that the prosecution of the appellant and the other accused was contemplated under the provisions of the aforesaid Corrupt Practices and Other Related Offences Act 2000 (hereinafter simply referred to as the Act.) In pursuance of the provisions of the Act, section 61(3) thereof, the Chief Judge of the Federal Capital Territory Abuja has designated Hon. Justice M.N. Oniyangi as the Judge to hear and determine offences prosecuted under the Act. The trial Judge aforesaid on the 22nd day of May, 2001 granted the application pursuant to section185(b) of Criminal Procedure Code Law of the Federal Capital Territory. On the 25/5/2001, the appellant filed an application praying for the following:
“An order that the charge preferred against the 4th accused be quashed on the ground that
(1) the offences alleged therein are not disclosed by the statement and/or proof of evidence before the court and
(2) the said charge is an abuse of the process of the honourable court.”
The application was supported with an affidavit and (i) the application to prefer the charge (ii) the order of court granting leave to the applicant prosecutor to prefer the charge (iii) the charge sheet containing four counts (iv) proof of evidence containing the list of witnesses and copied statements of the accused persons. The prosecution filed a counter-affidavit against the application. After the address of counsel, in his ruling delivered on 1/6/2000, Oniyangi J. overruled the application to quash the leave granted and dismissed the application. It is against the ruling refusing to quash the counts against the appellant, the appellant has now appealed to this court. The notice of appeal contains four grounds of appeal which read:-
“1. The learned trial Judge erred in law when he failed to apply the principles of law enunciated in Ikomi v. State (1986) 3 NWLR (Pt. 28) 340 relating to grounds upon which a consent given for the preferment of an information and/or charge may be quashed by the trial Judge and thereby occasioned a miscarriage of Justice.
Particulars of error
- There was no link between the proof of evidence and the charge No. CR/1/2001 as far as the 4th accused/appellant is concerned.
- There was no complaint against the 4th accused/ appellant shown in the proof of evidence attached to the charge.
- The learned trial Judge erred in law when he held that the prosecution had made out a prima facie case against the 4th accused appellant when all that was contained in the proof of evidence as at 22nd May, 2001, when the court granted consent to prefer charges against the 4th appellant were the statements of the accused persons without the statement of witnesses for the prosecution as at 22nd May 2001, when he granted his consent to prosecute the 4th accused/appellant contrary to the principles of fair hearing enshrined by section 36 of the Constitution of the Federal Republic of Nigeria and thereby occasioned a miscarriage of justice.
Particulars of error
- The statements contained in the proof of evidence as at 22/5/2001 were only the statements of the accused persons thereby depriving the court of the opportunity to have a balanced view of the prosecutions case and the defence.
- The inclusion of only the statements of the accused persons puts the burden of proof on the 4th accused/ appellant to establish his innocence against a non existing complaint.
- The learned trial Judge misdirected himself on the facts when he took into consideration documents contained in the counter affidavit of the prosecution dated the 1st day of June 2001 and the statement of Adeyemi Adefolu which were not available to the trial court on 22/5/2001 when the trial court granted consent to prefer charge against the 4th accused/appellant contrary to the principles of the law established in Egbe v. The State, that upon a motion to quash consent to prosecute the trial Judge should confine himself to the statements available to him at the time of the grant of the consent and not upon the consideration of subsequent statements filed by the prosecution in their counter-affidavit.
Particulars of misdirection
- The material facts in the counter-affidavit of the prosecution are facts which were not before the court on 22/5/2001 when the lower court assessed the material facts to enable the court to exercise its jurisdiction to grant the prosecution leave to prefer the said charge of 22/5/2001 against the 4th accused/appellant.
- The ruling is against the weight of evidence.”
By an affidavit of urgency and a motion on notice the appellant applied for departure from the rules of court in relation to the preparation of the records of proceedings, the filing of brief and for accelerated hearing of the appeal. With the consent of all the parties this court invoked its powers under the provisions of order 7 and agreed to hear the appeal on the bundle of documents and without filing of briefs of arguments. At the hearing of the appeal, Chief B. Rhodes SAN identified the following issue slightly amended by me for the determination of the appeal:-
“Whether the statements of the accused persons attached to the application to prefer the charges in the absence of any other statement or evidence or documents including the police case diary disclosed any offence against the appellant to justify the leave given by the trial Judge to prosecute the appellant and whether the learned trial Judge was right in not quashing the charge against the appellant.”
Mrs. Onuagu for the prosecution identified the following issue for the determination of the appeal.
“Whether the learned trial Judge was right in holding that there is a ground for proceeding with the trial of the appellant herein.”
It is submitted by the senior counsel for the appellant, that there was no link whatever between the charge filed and the proofs of evidence supplied in support of the charge sheet with the appellant. There was no iota of evidence whatever against the appellant as contained in the documents before him when the learned trial Judge granted consent to prefer the charge sheet. The four statements made by the four accused persons that were before the trial Judge made no mention of the appellant committing any crime. The appellant himself in his statement denied the allegations made against him by Adefulu. When the learned trial Judge decided to grant the consent, he did not have before him the statement of Adefulu.
Learned counsel referred to Enuma v. The State (1997) 1 NWLR (Pt. 479) 115 at 117; Fred Egbe v. The State (1980) 1 NCR 341 at 344. It is again submitted that there was no prima facie case made out against the appellant on the evidence before the learned trial Judge when he granted his consent to prefer the charge sheet. Learned counsel referred to Ikomi v. The State (1986) 3 NWLR ( Pt . 28) 340. It is again argued, that learned trial judge did not exercise his discretion properly when he decided to grant the consent. The case of Gafaria Ajidagba & 4 Others v. IGP (1958) 3 FSC 15 on which the learned trial Judge relied was not relevant since that case was dealing with the issue of “no case submission”.
Mrs. Onuagu, the learned counsel for the 1st respondent argued that the trial Judge was perfectly in order when he granted his consent that the trial should proceed. It is submitted that there are grounds for the continuation of the criminal proceedings against the appellant. It is further argued that the appeal is against the decision of the learned trial Judge to refuse to quash the charge sheet and not against the order to grant the consent for which there is no appeal. It is submitted the grounds of appeal are merely complaining against the order granting the consent and not against the order refusing to quash it. It is further submitted that the learned trial Judge has the discretion to grant or refuse leave to have the charge preferred against the appellant and in the instant case the learned trial Judge had acted judicially and judiciously in the exercise of that discretion. It is submitted that on a calm view of the statement of the appellant before the trial Judge, the appellant has to explain certain things and that alone is sufficient since a prima case does not include evidence that is sufficient to convict. Learned counsel relied for this proposition on the Ikomi’s case (supra). Learned counsel also referred to section121 and section 122 of the Criminal Procedure Code law and asserts that there was a clear relationship between the appellant and Chief Adefulu. It is again submitted that on the evidence adduced the learned trial Judge was justified in granting his consent vide Abacha v. The State (2001) 3 NWLR (Pt. 699) 35 at 38. It is further argued that the appellant by his statement has made himself liable to make explanation at the trial. The other counsel appearing for the 2nd, 3rd and 4th respondents associated themselves with the arguments of the learned senior counsel for the appellant. In answer to a question raised by the court the learned counsel for the appellant submitted that section 64 of the Act conflicts with section 36 of the Constitution and is therefore null and void since it is in breach of the principle of fair hearing.
Now, an application was made under the provisions of section185(b) of the Criminal Procedure Code law of the former Northern Region of Nigeria applicable to the Federal Capital Territory Abuja for leave to try the appellant and others for offences against the Act aforesaid. Section 185 of the CPC provides:-
“No person shall be tried by High Court unless:-
(a) irrelevant
(b) a charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court; or
(c) not relevant.
Thus under the provisions of the Criminal Procedure Code section 185 thereof, before a criminal indictment can proceed against an accused person, leave of the Judge or court must be obtained before the trial in the matter can proceed. There is no doubt where the section applies the Judge is called upon to make a decision on the materials made available to him whether to grant leave or not. The aforesaid section is similar to section 340 of the Criminal Procedure Act which is applicable to most of the Southern States. In the case of the Queen v. Bello (1963) NRLR 35 page 36 Brett F.J. said:-
“In this case, a preliminary inquiry had ostensibely been held and the Magistrate had purported to commit the appellant for trial to the High Court, but when the case was called for hearing in the High Court Crown counsel submitted that for reasons which are not material the preliminary inquiry was a nullity and should be set aside, he coupled with this submission a verbal application for leave to prefer a charge without a preliminary inquiry. The Judge upheld the submission and set aside the preliminary inquiry. His ruling continues:-
‘I give leave for a charge to be preferred without the holding of a preliminary inquiry. I order that the accused shall be charged with the charge preferred by the prosecution x x x x x x.’
In that case it was held that the prosecution had the power under section185(b) of the Criminal Procedure Code to prefer a charge and the judge had the duty either to grant leave or not. In the case of Ikomi v. The State (supra) at page 356 Nnamani JSC of blessed memory said:-
“It seems to me that the first, and indeed a fundamental principle, is that before granting consent a Judge must be satisfied that the depositions disclose an offence and that the trial will not amount to abuse of process. x x x x x x x x x x This power of court to prevent abuse of process includes the power to safeguard an accused person from oppression and prejudice such as would result if he is sent to trial pursuant to an information not which he is not in any way linked.”
See also Egbe v. The State (1980) 1 NCR 341 at 316, Uthman Mohammed, J.C.A. as he then was said:
“Having considered all these matters it is my view that the offences in the information preferred are not disclosed by the proof of evidence before the trial court. X X X X X I do not think it is relevant as the learned trial Judge did that further evidence and documents might be introduced later x x x where the prosecution has nothing to offer at the time of arraignment in support of the charged, it would amount to an abuse of the process of the court to allow such an indictment to proceed.”
See also Atanda v. A.G. Western Nigeria (1965) NMLR 225.Where it was held that although a Judge has the power under section 340(2) (b) of the Criminal Procedure Act (which is the same as section 185 (b) of the Criminal Procedure Code) the consent to an information being preferred without the holding of a preliminary inquiry, the power should be exercised judicially and judiciously. It was further held that the need for the consent of the Judge is to prevent a vexatious prosecution or one that will serve no useful purpose, it is only when there is a clear case on the proof of evidence that the Judge should give his consent. In other words, there must be prima facie evidence that a crime has been committed and the accused is linked somehow with the commission of the crime. See Sampson Gali v. The State (1974) 5 SC 67. But it has been held. See Queen v. Ogucha (1959) 4 FSC 64, although it dealt with the status of the evidence at the close of the case for the prosecution. I am of the view that as in that case all that is required at the point when a Judge grants consent to prefer a charge is that there be evidence which required some explanation.
In my view, the statement of the appellant that Chief Adefulu “meant to tarnish my character and image because he wants to be a good servant to his master.” “I also did not discuss any issue of N3.5 million with Chief Adefulu. He has his reasons for framing me” clearly link the appellant with the information preferred and there is the need for him to explain at the trial the circumstances of the frame. Even if there is nothing further in the proofs of evidence, the appellant had himself put himself in a situation at this stage, when it is not the evidence of conviction that is required, but some connection with the charge. Under the circumstances of this case having regard to the charge which has revealed an offence against the Act and the fact that the appellant by his statement linked himself with the facts contained in the charge sheet, the decision of the learned trial Judge could pass the required test of being judiciously and judicially made.
There is another angle to this appeal which may be more crucial than what I have discussed above. An examination of the Criminal Procedure Law clearly shows that the law was designed to govern the procedure generally for the prosecution amongst other matters of offences under the Penal Code Law. section 5 of the Criminal Procedure Code provides:-
“5 (1) All offences under the Penal Code shall be investigated, inquired into and otherwise dealt with according to the provisions contained in the Criminal Procedure Code.
(2) All offences against any other law shall be investigated, inquired into tried and otherwise dealt with according to the same provisions, but subject to any law for the time being in force regulating the manner or place of investigating, inquiring into trying, or otherwise dealing with such offences.”
(Italics supplied)
Similarly sections 12(l) and 13(l) of the Criminal Procedure Code provide:-
12 (1) “Subject to other provisions of this Criminal Procedure Code, any offence under the Penal Code may be tried by any court by which such offence is shown in the sixth column of appendix A to be triable or by any other court other than an Area Court with greater powers”.
13 (1) “Any offence under any law other than the Penal Code may be tried by any court given jurisdiction in that behalf in that law or by any court with greater powers.”
The Criminal Procedure Code Law including the provisions of section185 thereof may only apply to any other offences created under a different enactment other than the Penal Code to the extent to which the provision is allowed to apply under the law creating the offence. The Corrupt Practice and Other Related offences 2000 is in my view such other offences creating enactment. It is a special legislation containing special provisions establishing an Independent Corrupt Practices and Other Related Offences Commission vesting it with the responsibility for investigation and prosecution of offences thereof. Section 6 for example gives the commission the general duties to receive and investigate complaint and prosecute offenders. By section 53 the Act created legal presumptions that are not ordinarily available in the offences created by the Penal Code.
Section 61 deals with the prosecution of offences under the Act and 61(3) provides:-
“The Chief Judge of a state or the Federal Capital Territory Abuja shall, by order under his hand, designate a court or Judge or such number of courts or Judges as he shall deem appropriate to hear and determine all cases of bribery, corruption, fraud or other related offences arising under this Act or any other laws prohibiting fraud, bribery or corruption; a court or Judge so designated shall not, while being so designated, hear or determine any other cases provided that all cases of fraud, bribery or corruption pending in any court before coming into effect of this Act shall continue to be heard and determined by that court.”
Under this subsection the restriction placed on a High Court by section 185 of the Criminal Procedure Code to exercise criminal jurisdiction has been omitted. So the question of giving leave or consent by the trial Judge to prefer a charge under the Act is not necessary. Due to the special nature of the enactment, in my view, the provisions of section 185 of Criminal Procedure Code will not apply. Consequently there would be no need to obtain leave to prefer a charge for the offences created by, the Act. I am buttressed in this view by the provisions of section 64 of the said Act which gives protection to witnesses. Section 64(1) provides:-
“64 (1) Subject to subsection (2) where any complaint made by any officer of the commission states that the complaint is made in consequence of information received by the officer making the complaint, the information referred to in the complaint and the identity of the person from whom information is received shall be secret between the officer who made the complaint and the person who gave the information, and everything contained in such information, identify of the person who gave the information and all other circumstances relating to the information, including the place where it was given, shall not be disclosed or be ordered or required to be disclosed in public but only to the trial Judge and the defence lawyer in attendance in any civil, criminal or other proceedings in any court or tribunal.”
The sum total of the above provision is to shield witnesses and the evidences from the public until during the trial proper, therefore the question of filing proof of evidence or obtaining leave is in my view not within the contemplation and/or the intendment of the provisions of the Act. But the fact that the prosecution has done so in the instant case does not in any way occasion any miscarriage of justice. Pro abundate cautel applies.
To sum up, I am satisfied that the learned trial Judge in the instant case has properly exercised his discretion in granting leave to prefer the charge against the appellants under section 185(b) of the Criminal Procedure Code. The statement of the appellant claiming that he was maliciously framed in the commission of the offence charged requires the continuation of the proceedings. I am also of the view that upon the consideration of the various provisions of this special enactment section 185(b) of Criminal Procedure Code does not appear to be applicable to a criminal complaint brought pursuant to the provisions of this Act.
It is for the above and the reasons contained in the leading judgment of my Lord Oduyemi J.C.A. that I too dismiss the appeal. I affirm the decision of the lower court in refusing to quash the indictment.
ISA ABUBAKAR MANGAJI, JCA: I have had the privilege of reading before now the lead Judgment just delivered by my brother A. G. Oduyemi, JCA and I agree with the reasoning and conclusions which I adopt as mine. In the circumstances of this case the procedure stipulated in section 185(b) of the Criminal Procedure Code is satisfied by the proofs of evidence submitted for the consideration of the lower court. This is more so, when one considers the special provisions contained in section 64 of the Corrupt Practices and Other Related Offences Act, No. 5 of 2000. As such I am also of the opinion that the lower court exercised its discretion judiciously and judicially in its decision to grant consent.
For these and the more detailed reasons given in the lead judgment, I too hold that this appeal has no merit and I dismiss it.
Cases cited in the judgment
Abacha v. The State (2001) 3 NWLR (Pt. 699) 35.
Atanda v. A.G. Western Nigeria (1965) NMLR 225.
Ajidagba v. Inspector- General of Police (1958) 3 FSC 5.
Enuma v. The State (1997) 1 NWLR (Pt. 479) 115.
Egbe v. The State (1980) 1 NCR (Pt. 341) 344.
Gali v. The State (1974) 5 SC 67.
Ikomi v. State (1986) 3 NWLR (Pt. 28) 340.
Queen v. Bello (1963) NRLR 35.
Queen v. Ogucha (1959) 4 FSC 64.
Statutes referred to in the judgment
Corrupt Practices and Other Related Offences Act No. 5 of 2000, S. 64.
Constitution of the Federal Republic of Nigeria 1999; section 36.
The Criminal Procedure Code, sections 185(b),121, and 122(1), 144.
The Criminal Procedure Act Cap. 80 LFN 1990, s.353(2), 340.
Criminal Procedure Law; section 152.
Evidence Act, Cap. 112 LFN, 1990, section 149.
