Charges

Before Their Lordships

Between

AND

…………………….A…………………….

KUMAI BAYANG AKA’AHS, J.S.C. (Delivering the Leading Judgment): This appeal borders on the propriety of the charge preferred against the accused and the constitutionality of the Kano State Legal Notice No. 10 of 1979 titled “The Criminal Procedure Code (Preferment of Charges in the High Court) Rules 1979 Cap. 30 Laws of Kano State of Nigeria.

Before Their Lordships

Between

AND

I. T. MUHAMMAD, J.S.C: My learned brother, M. D. Muhammad, JSC, had made a copy of the judgment just delivered available to me. I am in agreement with him that the appeal has merit and it should be allowed.
My learned brother has, in his judgment, set out clearly the facts and the issues for determination. I need not repeat same here except to say that the first issue formulated by the learned counsel for the appellant is very apt in treating this appeal. The appeal essentially is on the consent of a trial judge for the prosecution to prefer a charge against an accused person or persons.
Where an offence has been committed or is alleged to have been committed in the Northern states of Nigeria or any part including the Federal Capital Territory, Abuja, the governing law is the Criminal procedure Code (CPC) and not the CPA which is applicable in the other parts of the country. Section 185 (b) of the CPC provides:
“No person shall be tried by the High Court unless –
(b) a charge is preferred against him without the holding of a preliminary inquiry by LEAVE OF A JUDGE of the High Court.” (Emphasis and underlining supplied by me).

Whenever and wherever leave of a Judge is to be sought, it means, in my humble understanding, that the statute has conferred on the judge some discretionary powers. Discretion which can hardly be altered.
Rules for the procedure to obtain leave from a judge of a High Court to prefer a charge (Preliminary Inquiry excluded) against a person suspected to have committed a crime have been provided by the criminal Procedure (Application for leave to prefer a charge in the High Court) Rules, 1970. Sub-rule 3 (3) stipulates as follows:
“(1) Every application, other than application made under rule 2, shall be in writing signed by the applicant or his counsel and,
(a) shall be accompanied by the charge in respect of which leave is sought and, unless the application is made by or on behalf of the Attorney-General, shall also be accompanied by an affidavit by the applicant that the statement contained in the application are, to the best of the deponent’s knowledge, information and belief, true, and
(b) shall state whether or not any application has previously been made under chapter XVII of the Criminal Procedure Code, and the result of any such applications or proceedings.
(2) Where no proceedings have been taken under chapter XVII of the Criminal Procedure Code the application shall state the reason why it is desired to prefer a charge without such proceedings having been taken, and
(a) there shall accompany the application proofs of the evidence of the witness whom it is proposed to call in support of the charge; and
(b) the application shall include a statement that the Evidence shown in the proofs will be evidence which will be available at the trial and that the case disclosed by the proofs, to the best of the knowledge, information and belief of the applicant, a true case.
(3) where proceedings have been taken under chapter XVII of the Criminal Procedure Code and the magistrate has refused to commit the accused for trial, the application shall be accompanied by
(a) a copy of the depositions, and
(b) proofs of any evidence which it is proposed to call in support of the charges so far as that evidence is not contained in the depositions, and the application shall include a statement that the evidence shown by the proofs and the evidence shown by the depositions will be available at the trial and that the case disclosed by the dispositions and proofs, is, to the best of the knowledge, information and belief of the applicant, a true case”.
By way of summary, the applicant for leave to prefer a charge, is mandated by the rules to comply with the rule by supporting his application with the following:
(a) the charge in respect of which leave is sought
(b) affidavit by the applicant (if not an Attorney-General or his representative) that the statements contained in the application are true
(c) a statement on whether or not any application has previously been made under these Rules.
(d) a statement on whether or not any proceedings have been under taken under chapter XVII of the CPC, and
(e) the result of such applications or proceedings, if any.
The learned trial judge made the following findings:
“It is clear for the foregoing appraisal that the provision of Rule 3 (2) (a) of the 1970 Rules were complied with in bringing or preferring the charges against the accused persons/applicants. Failure to state a material ingredient of an offence is certainly fatal to the prosecution but that has to be taken at the trial not at the stage of preferring a charge and it is so held. The same reasoning goes for possibility of duplicity. It is also an issue that could be taken as part of the defence of the accused persons at the trial.”
(Underlining supplied by me to emphasise the points raised therein)
Except where stronger reasons prevail or that the findings of a learned trial judge are found to be perverse, the exercise of his discretion is never brought to question by a higher court.
See:
It is the holding of this court in GAJI V. THE STATE (1975) NNLR 98 at page 112 as reprinted (1975) 5 SC 61 at page 83, inter alia, that:
“Judges who exercise the powers of granting leave under the provisions of section 185 (b) at the Criminal Procedure Code should ask for and insist on seeing the proofs of evidence which it is intended to urge in supplied of the prosecution: it is not open at that stage to an accused person to be invited into the scene and moreover to be supported with copies of the statements of potential witnesses.” (Underlining supplied for emphasis).
This holding by the learned trial judge was done (and rightly too), in consonance with the provision of the Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules, 1970 as set out about. It however, beats my imagination to discover from the Record of Appeal that the court below

found it difficult to agree with the trial courts holding. The court below, held, among other things:
“It is difficult for me to go along with his reasoning’s since the procedures to be followed were by-passed substantially by the prosecution who ought to attach in proofs (sic) of evidence the statements of the witnesses and of the accused and the prosecution failed to do so. Also present were a lot of lapses which can be interpreted to mean that the provisions of the Criminal Procedure (Applications for leave to prefer a charge in the High Court) Rule 1970 had not been complied with and brought into being what the Supreme Court had variously warned against that of pushing the accused into speculating on what he was faced with.
Also cannot be ignored (sic) is the fact that not considering each of the applications even if briefly but separately within the Ruling was akin to denying the each appellant (sic) the right of being heard. That is a situation of a grave nature (sic) that cannot be waved aside (sic). These infractions happening to each of the appellants, each application to have the charge quashed ought to have been favourably considered.”
With due respect to the court below, a court of law only decides on facts and the law presented before it and not on sentiments. The facts and the laws applicable in support of the application were properly placed before the trial court. The learned trial judge exercised his discretion based on his understanding of the facts and the law. It is not for the appeal court to substitute its views for that of the learned trial judge when it comes to exercise of discretion. See: OYEYEMI V. IREWOLE LOCAL GOVERNMENT (1913) 1 MWLR (part 270); SOLANKE V. AJIBOLA (1969) 1 NLR 259; HADMOR PRODUCTIONS LIMITED V. HAMILTON (1983) 1 A.C. 191 at page 220.
I fail to see where the learned trial judge went wrong either on the side of the facts or the law placed before him. His decision, to me is unassailable which, with all due respect, I have no cause to fault or alter. I, accordingly, in line with the well-reasoned judgment of my learned brother, M. D. Muhammad, do hereby allow the appeal by setting aside the judgment of the court below while I restore and affirm the decision of the trial court. I abide by other consequential orders made in the lead judgment.

JOHN AFOLABI FABIYI, J.S.C: I have had a preview of the judgment just delivered by my learned brother – M. D. Muhammad, JSC. I agree with the reasons therein advanced to arrive at the conclusion that the appeal has merit and should be allowed.
I desire to chip in a few words of my own only to depict oneness of purpose and support. The respondents, along with others were arraigned before the trial court for offering and receiving gratification. Thereat, they raised preliminary objection to the charge and their arraignment. The trial court overruled same. They appealed to the Court of Appeal, Abuja Division which found in their favour. The appellant has decided to appeal to this court.
The applicable law in this matter is section 185 (b) of the Criminal Procedure Code (CPC, for short). It provides that:-
“No person shall be tried by the High Court unless;
(b) a charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court.”
Vide Order 3 (2) (a) and (b) of the Criminal procedure (Applications for leave to prefer a charge in the High Court) Rules, 1970, the application must be accompanied by proof of the evidence of the witnesses whom it is proposed to call in support of the charges. As well, the application shall include a statement ‘that evidence shown in the proofs will be evidence which will be available at the trial and that the case disclosed by the proofs is, to the best of the knowledge, information and belief of the applicant, a true case.’

It has been variously held by this court that proof of evidence should only disclose prima facie case which literally means evidence on its face value. See: the cases of Abogede v. The State (1996) 4 SCNJ 223 at 233; Ajidagba V. I.G.P. 3 FSC 5 at page 6. The proof of evidence and the statements of the respondents annexed to the application constitute prima facie case as dictated by the law, read along with the applicable rules stated earlier on in this write up.
The respondents touted the idea of branding a proposed witness as a ‘tainted witness.’ Let me say it in passing that a person cannot be declared as a tainted witness until he has testified and duly cross-examined. In sum, we are not there yet.
For the above reasons and the fuller ones ably set out in the judgment of my learned brother, I, too, feel that the appeal should be allowed. I order accordingly and endorse all the consequential orders contained in the lead judgment.

OLUKAYODE ARIWOOLA, J.S.C: I had the opportunity of reading in draft the lead judgment just delivered by my learned brother, Dattijo Muhammad, JSC. I am in total agreement with the reasoning therein and the conclusion arrived thereat. I also agree that the appeal is meritorious and deserves to succeed and be allowed. It is therefore allowed by me.
I abide by the consequential orders made in the lead judgment.

KUMAI BAYANG AKA’AHS, J.S.C: My learned brother M. D. Muhammad JSC made available to me in draft his judgment. I agree with his treatment of issues arising in this appeal.
The production of witnesses’ statements, if at all necessary, is for the inspection of the trial Judge to assist him in determining whether to grant leave to the prosecution to prefer a charge under section 185 (b) CPC in the High Court without first conducting a preliminary investigation. See Gaji V. State (1975) ANLR 268.
It is not a right that the statements be made available to the accused, failing which the charge or charges which the accused is facing must be quashed. The lower court was wrong in setting aside the ruling by the learned trial Judge on the issue. It is for this reason and the more comprehensive reasons contained in the leading judgment that I too will allow the appeal and remit the case to the trial court for the expeditious hearing of the case.

Appearances

AND

Judgment

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): On 26/3/2012, the respondent sought to arraign the appellant and four others before the High Court of Anambra State, Awka Judicial Division on a two-count charge of conspiracy to commit murder and attempted murder.

Although the charges were read and interpreted to them, they declined to plead thereto on the ground that they had a pending motion challenging the competence of the charge. The motion dated 4/5/2010 was brought pursuant to Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and Sections 212, 240, 241 and 247 of the Criminal Procedure Law (CPL) of Anambra State.

They sought the following reliefs: “An Order: (I) Dismissing or striking out the Proofs of Evidence in this matter as incompetent and an abuse of the Court’s process, (2) Quashing the information as incompetent for failure to contain the proper proofs of evidence as required by Section 211(a) of the Criminal Procedure Law. (3) Dismissing/Striking out the proceedings for violating the applicants’ fundamental right to fair hearing. (4) Quashing the information as the Court lacks jurisdiction to try the offences as they were brought in violation of the applicants’ constitutional right to fair hearing. (5) Quashing the arraignment of the applicants on the information before this Court as the information is incompetent and unsupported by proper proofs of evidence.

And granting such further orders/reliefs as this Honourable Court may deem, just and proper in the circumstances.”

The application was supported by a 22-paragraph affidavit and exhibits attached thereto marked A-F. The applicants filed a written address in support. The respondent filed a counter-affidavit and also filed a written address thereto.

​The applicants were initially arraigned before the Magistrates Court Awka in Suit No. MAW/ 1940/07. Having regard to the nature of the charges, the Court declined jurisdiction and referred the matter to office of the Director of Public Prosecution. The prosecution informed the Court that it intended to call 12 witnesses to testify and supplied their details. The Court therefore made an order binding them over to make themselves available to testify before the High Court wherever they were required to do so.

It was the applicants’ contention at the High Court, that of the 12 witnesses bound over, the prosecution only included five in the proof of evidence filed along with the information. It was contended that the failure to include the names, addresses and statements of the remaining 7 witnesses, whom they considered to be material witnesses rendered the information defective and liable to be quashed. In particular, it was contended that the statement of an independent eye witness, one Alice Nweke, who informed the Police that the applicants were not the perpetrators of the crime, was omitted.

They also contended that exculpatory statements made by some of the witnesses were not included. They argued that by withholding the statements of material witnesses, their right to be given adequate facilities for the preparation of their defence, guaranteed by Section 36(6) (b) of the 1999 Constitution, as amended, had been breached. They also contended that the information deserved to be quashed for being in violation of Sections 212, 240, 241 and 247 of the CPL of Anambra State.

​The prosecution denied withholding any evidence. They averred in their counter-affidavit that the said eye witness, Alice Nweke, could no longer be traced. It was also contended that by their information, they are only required to show that there is a prima facie case made out, requiring some explanation from the accused. They also argued that the application was an abuse of the Court’s process, aimed at delaying the hearing of the case.

In a brief ruling delivered on 10/9/2012, His Lordship J.C Iguh, J. dismissed the application in the following words: “I have carefully considered the application, the affidavit in support, together with the exhibits thereto, arguments of the learned counsel for the applicants, counter-affidavit together with the exhibits thereto and arguments of the learned counsel for the respondent and it seems to me that the applicants have not made a case that would warrant the grant of the application. The application accordingly fails and is hereby dismissed.”

​The applicants were aggrieved by the decision and filed an appeal before the Enugu Division of the Court of Appeal. In a considered judgment delivered on 28th July, 2015, the appeal was dismissed. The ruling of the learned trial Judge was upheld.

The appellants are still dissatisfied and have further appealed to this Court. Their Notice of Appeal filed on 27th August, 2015 contains 6 grounds of appeal.

At the hearing of the appeal on 18/2/21, Dr. E.S.C. Obiorah adopted and relied on the appellant’s brief filed on 10/12/19 and his reply brief filed on 8/3/19 in urging the Court to allow the appeal. P.A. Afuba Esq. adopted and relied on the respondent’s brief filed on 7/4/16 in urging the Court to dismiss the appeal.

Learned counsel for the appellant distilled a single issue for determination thus: Whether the failure of the Proof of Evidence to contain the statutorily mandated facilities, as compelled by Sections 220(f) and 146 of the Administration of Criminal justice Law of Anambra State, 2010, rendered both the Proof of Evidence and the underlying amended Information incompetent and also constitutes a violation of the appellant’s fundamental right? (Grounds 1, 2, 3, 4, and 5).

The respondent formulated two issues, namely: (1) Did the respondent substantially comply with the relevant provisions of the Administration of Criminal Justice Law of Anambra State, 2010, in preparing the proofs of evidence upon which the information filed against the appellant was based? (Grounds 3, 4 and 6). (2) Whether the Court of Appeal was right in sustaining the information filed against the appellant having found that the alleged violation of the appellant’s fundamental right to fair hearing was not made out? (Grounds 1, 2 and 5).

The appellant’s single issue conveniently encompasses the two issues submitted by the respondent. I shall therefore adopt the sole issue for the resolution of the appeal.

Sole Issue Learned counsel for the appellant submitted that the law is trite that failure to comply with the mandatory provisions of a statute in performing a statutory duty or carrying out any public function renders any action taken in violation of that statute incompetent and a nullity. He referred to several authorities, including U.N.T.H.M.B. Nnoli (1994) 8 NWLR (Pt. 363) 376 @ 401-413: N.N.P.C. VS. Tijani (2006) 17 NWLR (Pt. 1007) 29 @ 45: Gov. of Ebonyi State Vs Isuama (2004) NWLR (Pt. 870) 511 @ 533.

He submitted that while Section 220(f) of the ACJL provides that an “information shall contain Proofs of Evidence” Section 146 sets out what the proofs shall consist of. The Section provides: “146.

The proofs of evidence shall consist of – (a) Statement of the charge against the defendant, (b) The name, address, statement of any material witness whom the prosecution intends to call; (c) the names, address and statement of any material witness whom the prosecution does not intend to call; provided that the submission of such names shall not prevent the prosecution from calling any such witness at the trial if the prosecution later so desires; (d) the copy of any report, if available, made by a doctor about the state of mind of a defendant in custody; (e) record of conviction, if any, affecting the credibility of any witnesses for the prosecutor; (f) statements of the defendant; (g) an inventory of all exhibits to be produced to the Court at the trial; and (h) any other statement or document which the prosecution may consider relevant to the case.” (Underlining mine)

​Learned counsel submitted that there is a world of difference between the liberty of the prosecution to call any witness it desires and the duty to disclose the name, address and statement of any material witness whom the prosecution does not intend to call, the statement of the defendant and all the exhibits to be produced to the Court at the trial. He argued that the first scenario is discretionary and has no relevance to the present case, while the second scenario is mandatory and constitutes a condition precedent for the existence of a valid proof of evidence.

He submitted that the use of the word “shall” in Section 146 of the ACJL connotes mandatoriness. He referred to Gov. of Ebonyi State Vs Isuama (Supra). He submitted that the Court has a duty to stop any prosecution that violates the law or which, on the facts, creates abuse or injustice. See: Ezeze Vs. The State (2004) 14 NWLR (Pt. 894) 491 @ 504-506.

He submitted that in the instant case, the information and proof of evidence which omitted the statements of 7 material witnesses, the complaint against the appellant to the police, photographs of the incident and inventory of exhibits are incompetent ab initio and should be quashed.

​On who is a material witness, he submitted that a material witness is a witness whose evidence might influence the decision of the Court on an issue in the prosecution of the case. He referred to the definition provided in Black’s Law Dictionary, 8th Edition, 2004 and the case of Ikemson vs. The State (1989) NWLR (Pt. 110) 455 @ 474. He submitted that the test for determining the materiality of a witness is objective, not subjective. He submitted that the yardstick is the opinion of a reasonable man.

He submitted that the lower Court erred in holding that it is the prosecution that can determine whether a witness is material or not for the purposes of the contents of the proof of evidence. He argued that if this were the correct position, there would not have been any need for the enactment of Section 146(b) and (c) of the ACJL. He submitted that, in any event, the prosecutor had shown that 12 witnesses were material when he applied for them to be bound over during the remand proceedings at the Magistrates Court.

​He submitted that the only reason for the omission of 7 of the witnesses previously bound over is to prejudice the appellant and to deprive him of their statements, which would have facilitated his defence. Apart from listing the names of the witnesses and the statements allegedly withheld, he submitted that the prosecution also failed to list the exhibits to be relied upon including photographs taken at the scene. He submitted that the Court has a duty to prevent an abuse of its process by striking out the defective proof of evidence.

He referred to Abacha Vs The State (2002) 11 NWLR (Pt. 779) 437 a 485.

Relying on a recent decision of this Court in Okoye vs C.O.P. (2015) 17 NWLR (Pt. 1488) 276 @ 314 F-H, he submitted that the refusal of the respondent to avail the appellant with the necessary materials to facilitate his preparation for his defence, constitutes a violation of his fundamental right to fair hearing as enshrined in Section 36(6)(b) of the 1999 Constitution, as amended. He also referred to: Kenon Vs Tekam (2001) 14 NWLR (Pt. 732) 12 @ 41: Kalu vs F.R.N. (2014) 1 NWLR (Pt. 1389) 479: Ogboh vs F.R.N. (2002) 10 NWLR (Pt. 774) 21.

He submitted that the respondent’s refusal to accede to the appellant’s request, despite repeated demands. He referred to Udo vs The State (1988) 1 NSCC (Pt. 19) 1163 @ 1172 for the contention that Section 36(6)(d) of the 1979 Constitution (which is in pari material with Section 36(6) of the 1999 Constitution) is a provision of “equal opportunities for both the prosecution and the defence” and therefore the prosecution will not be allowed to have sole access to evidence. He referred to: Orisakwe Vs Governor of Imo state (1982) 3 NCLR 743 @ 758.

Learned counsel submitted that the prosecution should not be allowed to benefit from its illegality. He referred to: Odedo Vs INEC (2008) 17 NWLR (Pt. 1117) 554 @ 623; Teriba vs Adeyemo (2010) 13 NWLR (Pt. 1211) 242: Lafia Local Govt. Vs Gov. of Nassarawa State (2012) 17 NWLR (Pt. 1328) 94.

In response, learned counsel for the respondent submitted that there was substantial compliance with the provisions of the ACJL. He referred to Sub-paragraphs (b) and (c) of Section 146 of the law and the proofs of evidence at pages 115-138 of the record, which contains the names, addresses and statements of 5 witnesses. He submitted that what the law requires is the names, addresses and statements of material witnesses.

He placed emphasis on “material.” He argued that it is not the requirement of the law that the name, address and statement of every person who made a statement to the police must be included but only that of a material witness. He urged the Court to give effect to the word “material” as used in Sub-sections (b) and (c) in its plain and ordinary meaning. He referred to: Okotie-Eboh Vs Manager & Ors. (2004) LPELR-2502 (SC); (2004) 18 NWLR (Pt. 905) 242.

He submitted that where the words of a Statute are clear and unambiguous, the duty of the Court is to apply them in their simple and ordinary meaning. He referred to: Fawehinmi Vs I.G.P. (2000) 7 NWLR (Pt. 481) 503: Awolowo vs Shagari (1979) 6-9 SC 73; (1979) ALL NLR 120: Agwuna vs A.G. Federation (1995) LPELR-258 (SC): (1995) 5 NWLR (Pt. 396) 418.

On who is a material witness, learned counsel referred to: Akpan vs The state (1991) NWLR (Pt. 182) 646, where it was held that a witness is material where he can help resolve the facts in dispute between the contending parties. He referred to Section 147 of the ACJL and submitted that at the stage of preparation of the proof of evidence, there must be a determination as to which witness statements are material and which are not.

He referred to: Uket vs F.R.N: (2007) LPELR – (CA), where His Lordship, Rhodes-Vivour, JCA (as he then was) held that the purpose of proof of evidence is to give the accused person an opportunity of knowing what the prosecution witnesses were coming to Court to say against him. See also: Abacha vs The State (2002) 11 NWLR (Pt. 779) 437.

He submitted further, that by Section 145 of the ACJL, it is the statutory duty of the Attorney-General and the law officers in the Public Prosecutions Department of the Ministry of Justice to prepare proofs of evidence in criminal trials. He submitted that it is these officers who can determine which witness statements are material and those that are not. He argued that it is not the province of the appellant or his counsel to appropriate to themselves the said statutory function.

He referred to the Police Investigation Report at pages 126-127 of the record, where it was stated that all efforts to reach and obtain a statement from the alleged good Samaritan who allegedly broke the news of the incident in the village, proved unsuccessful. He submitted, as regards to the binding-over order made by the learned Magistrate, that the exercise of the Attorney-General’s statutory powers cannot be fettered or circumscribed by the action of the police prosecutor in the Magistrate’s Court.

He submitted that any act by the Police prosecutor is subject to the overriding decision of the Attorney-General. He referred to Section 165 of the ACJL.

Learned counsel submitted that the powers of the Attorney General in respect of criminal prosecution are traceable to Section 211 of the 1999 Constitution, as amended. He referred to: Ezomo Vs A.G. Bendel State (1986) NWLR (Pt. 36) 448 and submitted that he is not subject to any control. He submitted further that copies of the statements could still be availed the appellant upon the proper application to the Court.

​He submitted that the appellant has not alleged that the proofs of evidence, as they stand, do not disclose a prima facie case against him. He submitted that non-disclosure of a prima facie case is a major ground for quashing an information. He contended that the non-inclusion of statements of some persons made to the police in the course of investigation cannot be a basis for the quashing, of an information. He relied on the persuasive authority of Wabara & Ors. vs FRN (2010) LPELR-4940 (CA) per Mary Peter-Odili, JCA (as he then was).

As regards the contention that the appellant’s fundamental right to fair hearing was breached, learned counsel set out the prayers sought in the applicants’ motion seeking to quash the information (reproduced earlier in this judgment). He observed that there was no prayer seeking to compel the prosecution to provide the facilities they required for their defence. He argued that in the absence of a prayer to that effect being refused, the appellant could not contend that his right to fair hearing was breached. He referred to: Inakoju Vs Adeleke (2007) 4 NWIZR (Pt. 1025) 423 @ 475.

Learned counsel noted that the applicants had issued a notice to produce the omitted statements, exhibited to their application as Exhibit F. He submitted that the essence of a notice to produce is to enable the party applying to tender secondary evidence of the relevant documents. He referred to: Buhari Vs Obasanjo (2005) 13 NWLR (Pt. 941) 1. He also referred to the counter-affidavit wherein it was averred that the basis for the demand for some of the documents is non-existent.

He submitted that the duty to ensure compliance with Section 36(6) of the 1999 Constitution, as amended, is on the Court and not the prosecution. On what amounts to fair hearing and the duty of the Court in respect thereof, he referred to: A.G. Benue State vs Umar (2008) 1 NWLR (Pt. 1068) 311 @ 351 (CA).

Learned counsel submitted that the issue of lack of fair hearing can only be used to nullify a decision at the conclusion of trial and should not be used as a ploy to truncate the proceedings in limine. He submitted that the issue was raised prematurely in the circumstances of this case. In support of his argument that a trial must have taken place before the issue of lack of fair hearing could be raised, he referred to: Okafor Vs A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659; Pam & Anor. vs Mohammed & Anor. (2008) LPELR-2895 (SC).

He distinguished the facts of Okoye Vs C.O.P. (Supra), relied upon by the appellants, from the facts of this case. He submitted that in Okoye’s case, there was an application before the Court for the prosecution to make the statements of some witnesses available which was granted at the Magistrate’s Court and affirmed on appeal to High Court. He noted that it was on further appeal to the Court of Appeal that the order granted was set aside. It was however restored by this Court. He submitted that Okoye’s case cannot therefore be an authority in the instant appeal.

In reply on points of law, learned counsel submitted that it is not correct, as contended by the respondent, that by Section 146(c) of the ACJL, the Attorney General has the sole discretion as to who is a material witness. He submitted that the essence of the provision is to actualize and fulfill the mandate of Section 36(6) (b) of the 1999 Constitution, as amended.

He referred to Okoye Vs C.O.P. (Supra) and submitted that the requirement is to prevent the mischief of a prosecutor attempting to conceal facts and misleading the Court to an erroneous decision and to give both sides an even playing field. He submitted that a party who suppresses evidence cannot be allowed to benefit from his own wrong. He referred to: Odedo Vs INEC (2008) 17 NWLR (Pt. 1117) 554 @ 623; Teriba VS Adeyemo (2010) 13 NWLR (Pt. 1211) 242: Adedeji vs Obajimi (2018) 16 NWLR (Pt. 1644) 146.

He submitted further that the duty imposed on the Attorney General as prosecutor by Section 146(c) of the ACJL has a corresponding correlation to the right vested in the appellant, as an accused person, entitling him to the full complement of the proofs of evidence, which must contain the particulars of witnesses and their statements, whether the prosecution intends to call such witnesses or not.

Learned counsel submitted that there is no statutory or adjectival law that permits the Attorney General to misuse his powers. Relying on Abacha vs The State (2002) 11 NWLR (Pt. 779) 437 @ 485 and Edet vs The State (2008) 14 NWLR (Pt. 1106) 52, he submitted that the Courts have inherent powers to prevent abuse of power and abuse of judicial process in order to safeguard the accused from oppression.

With regard to the Notice to produce, he submitted that what the applicants requested was beyond a mere notice to produce as provided for in Section 91 of the Evidence Act.

He submitted that the applicants gave notice to the respondent to produce the required statements for inspection, photographing, copying or testing in fulfilment of the provisions of Section 146(c) of the ACJL. ​He contended that a notice to produce under Section 146 (c) is constitutional and unlike the notice under the Evidence Act, it is not presupposed that the applicants have secondary evidence of the required information in their possession. He submitted that the authority of Nweke Vs The State (2017) 15 NWLR (Pt. 1567) 120, is inapplicable in the present circumstances.

He argued that there is no basis for the contention that an application must have been made to the Court before the applicants could insist on their rights. He asserted that any violation of Section 146(c) of the ACJL renders all actions, including the filing of the information in charge No. A/57C/2008 and the proceedings therein a nullity.

A good place to commence the resolution of this issue is to consider the provisions of Section 36 (6) (b) of the 1999 Constitution, as amended and Section 146 (c) of the ACJL of Anambra State. Section 36 (6)(b) of the Constitution provides: 36(6) Every person charged with a criminal offence shall be entitled to - (b) to be given adequate time and facilities for the preparation of his defence.

​Section 146 of the ACJL has been reproduced earlier in this judgment. For emphasis, Sub-section (c) provides that the proof of evidence shall consist of, inter alia: (c) the names, address and statement of any material witness whom the prosecution does not intend to call; provided that the submission of such names shall not prevent the prosecution from calling any such witness at the trial if the prosecution later so desires.” (Underlining mine).

The bone of contention in this appeal is the meaning of the underlined phrase above in the context of Section 36 (6) (b) of the 1999 Constitution, as amended, and who determines who a material witness is. In Newswatch Communications Ltd. vs Atta (2006) 12 NWLR (Pt. 993) 144 @ 170-171 H-A and at 181-182 H-A, this Court held: per Niki Tobi, JSC: “The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties.

In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a dual carriage-way in the context of both the plaintiff and the defendant or both the appellant and the respondent. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. That will be injustice.” Per Mahmud Mohammed, JSC: “There is no doubt at all that the principle of fair hearing is fundamental to all Courts’ procedure and proceedings.

Like jurisdiction, the absence of it vitiates proceedings, however well conducted… Fair hearing according to the law envisages that both parties to a case be given opportunity of presenting their respective cases without let or hindrance from the beginning to the end… Fair hearing in accordance with the law also envisages that the Court or Tribunal hearing the parties’ case should be fair and impartial without showing any degree of bias against any of the parties.”

​As noted above, Section 146 of the ACJL requires the prosecution to include in the proofs of evidence, not only the particulars of material witnesses, which it intends to call, but also the particulars of material witnesses it does not intend to call.

I agree with learned counsel for the appellant that the requirements are to give effect to Section 36(6)(b) of the 1999 Constitution, as amended. ​In the case of Okoye vs C.O.P. (2015) 17 NWLR (Pt. 1488) 276, heavily relied upon by learned counsel for the appellant, the facts were as follows: At the arraignment of the appellant and others before the Magistrate Court in Awka, counsel representing the accused persons moved an application for an order of Court directing the prosecution to furnish the accused persons with all documents (including statements of witnesses and police investigation reports relating to the case) whether they intended to tender them at the trial or not.

In response, the prosecution contended that such procedure was not applicable to a summary trial but only to a trial on information. The trial Magistrate ruled that the defence should be availed with copies of all the statements of the witnesses examined by the police in the course of its investigation. The prosecution was dissatisfied with the ruling and filed an appeal to the High Court.

The appeal was dismissed and the ruling of the trial Magistrate was affirmed. ​On further appeal to the Court of Appeal, the Court agreed with the prosecution’s contention that it was necessary for the accused persons to first make their election whether to be tried summarily or on information and that it was only where they elected to be tried on information that they would be entitled to be furnished with all the witness statements, police investigation reports, and so on. The accused persons all filed individual appeals against the judgment of the lower Court.

In a unanimous decision by a full panel of this Court, the appeal was allowed. It was held inter alia at pages 300-301 F-C: “The moment an accused person is facing a charge, his personal liberty is at stake and before that liberty is taken away, he must be afforded every opportunity to defend himself. It is immaterial whether he elects to be tried summarily or on information.

Once he becomes aware that he has a charge hanging over his neck for an infraction of the law and makes a request either orally or in writing, for any facilities to prepare for his defence, the Court must accede to his request and the prosecution has to comply… when a person is accused of an offence and requests for facilities to enable him prepare his defence, and the facilities in question are statements of witnesses, it will suffice if the prosecution makes available, photocopies of the statements.

The Court below was clearly in error when it made the election of the appellant to be tried on information as a condition precedent to exercising his right to request for facilities to prepare for his defence.” In my contribution at page 322 D-F of the report, I stated thus: “There is nothing in Section 36 (6) (b) of the Constitution that restrict its application to either a summary trial or a trial on information or provides for a condition precedent to its application.

With the greatest respect to the learned Justices of the Court below, having held that the evidence against the appellant, including the statements of witnesses to the Police were part of the facilities that would aid him in the preparation of his defence, ought to have stopped there and dismissed the appeal. The literal interpretation of Section 36(6) (b) does not admit of the meaning ascribed to it by the lower Court.”

​The law is quite well settled that a decision is only an authority for what it actually decided. It must be considered and utilized in light of its own peculiar facts and circumstances. See: Western Steel Works Ltd. Anor. Vs Iron Steel Workers Union of Nig. & Anor. (1987) 2 SCNJ 1: Ugwuanyi VS NICON Insurance Plc (2013) 11 NWLR (Pt. 1366) 546; Okafor vs Nnaife (1987) 4 NWLR (Pt. 64) 129; Skye Bank & Anor. vs Akinpelu (2010) 9 NWLR (Pt. 119B) 179.

In Okoye’s case (supra), the issue was whether there was any condition precedent to the entitlement of an accused person to be availed of adequate facilities for his defence. This Court answered emphatically in the negative. The Court also interpreted the word “facilities” as contained in Section 36 (6) (b) of the Constitution, as follows (at page 296 E-F): “The facilities that must be afforded the accused person are the “resources” or “anything which would aid” the accused person in preparing his defence to the crimes for which he is charged.

These, no doubt, include the statement of witnesses interviewed by the Police in the course of their investigation which might have absolved the accused of any blame or which may assist the accused to subpoena such favourable witnesses that the prosecuting counsel may not want to put forward to testify.” ​Thus, while Okoye’s case is an authority for what constitutes “facilities” within the context of Section 36(6) (b) of the Constitution, as amended and the fact that an accused person has an unfettered constitutional right to request such facilities whether he is tried summarily or on information, it is not an authority for the proposition that the failure of the prosecution to accede to the request will result in the information being quashed.

The essence or purpose of serving proofs of evidence upon an accused person is to afford him the opportunity of knowing what the prosecution witnesses intend to say against him in Court. It contains statements or abridged statements made extra-judicially to the Police or the investigator by the complainant, witnesses and/or the accused person, which would prima facie sustain the charge or the allegation against the accused person.

See: Abacha vs The State (2002) 11 NWLR (Pt. 779) 437: (2002) LPELR-15 (SC) @ 59 B-C: David Amadi vs A.G Imo State (2017) NWLR (Pt. 1575) 92: (2017) LPELR-42013 (SC) @ 18 C-E.

In the Indian case of Sher Shinsh Vs Jittendranathsen (1931) 1 LR 59 case 275, referred to and relied upon by this Court in: Ajidagba I.G.P. (1958) SC NLR 60 @ 62 D–E, it was held thus: “What is meant by prima facie case? It only means that there is ground for proceeding… But prima facie is not the same as proof, which comes later when the Court has to find whether the accused is guilty or not guilty (Per I.

Grosse, J) and the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused.” In Kalu VS F.R.N (2016) 9 NWLR (Pt. 1516) 1 @ 26 B, it was held per Ngwuta, JSC (of blessed memory): “The term prima facie case answers the questions on the face of the proofs of evidence: is there a ground for proceeding?

Does the proof of evidence disclose an offence or offences and if so, is the accused linked with the offence as to require him to explain his involvement therein?” See: Ikomi vs The State (1986) 3 NWLR (Pt. 28) 340.

An information is liable to be quashed where the charge is defective or where it fails to disclose a prima facie case against the accused person. See: Abacha v. The State (supra): Okoro vs The State (1988) 5 NWLR (Pt. 94) 255.

In the instant case, the appellant has not alleged that the proofs of evidence filed do not disclose a prima facie case against him. His complaint is that there are other exculpatory statements made to the police by material witnesses, which he requires to enable him properly prepare for his defence, that have been deliberately omitted despite repeated demands. By Section 146 (c) of the ACJL, the prosecution shall include the names, addresses and statements of any material witnesses even though it does intend to call them.

A material witness is one whose evidence is significant, credible and may aid in the determination of the case one way or another. See:Hassan Vs The State (2016) 12 SC (Pt. IV) 41; Ochiba vs The State (2011) 17 NWLR (Pt. 1277) 663 @ 696 A-B. The use of the word “material” in the Sub-section suggests that there is an element of discretion involved. In other words, the provision does not require that the details of every person who made statements to the Police in the course of their investigation must be included in the proof of evidence.

The initial determination of who is a material witness must be that of the prosecution. After all, there is a burden on it which does not shift, to prove the guilt of the accused beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011. In the instant case, while it is correct that the prosecutor at the Magistrates Court applied for an order binding over 12 witnesses to be available to testify in subsequent proceedings, I agree with learned counsel for the respondent that in filing the charge at the High Court, the Hon.

Attorney General is not bound by the steps taken by the prosecutor at the Magistrates Court. See Section 211 (1) (a) and (3) of the 1999 Constitution. The case file was forwarded to the office of the Director of Public Prosecutions to take the necessary steps towards the arraignment of the accused person before a Court of competent jurisdiction.

That exercise necessitates a consideration of the entire contents of the case file and a determination as to which witnesses are material to enable the prosecution prove its case beyond reasonable doubt. ​The list of witnesses that eventually forms part of the proofs of evidence is a list of the witnesses considered material by the prosecution. Not all of those listed may eventually testify. As such, it is a list of material witnesses that the prosecution may or may not intend to call at the trial.

Having made that determination and compiled proofs of evidence, duly served on the appellant, he had the right to request to be availed with additional facilities to enable him adequately prepare his defence where he is of the view that certain material evidence has not been included in or has been deliberately omitted from the proof of evidence. Section 146 (c) of the ACJL entitles him to apply to the Court to compel the prosecution to make them available to him. He cannot complain of lack of fair hearing when the hearing is yet to commence.

It is the Court that has the duty to ensure that the constitutional right to fair hearing is not violated. It has a duty to hold an even scale between the parties to ensure that both sides are afforded an equal opportunity to present their case. ​When interpreting statutory provisions, it is correct, as submitted by learned counsel for the appellant, that the words used must be given their natural and ordinary meaning except where, to do so would lead to absurdity.

See: Dickson vs Sylva & Ors. (2016) 7 SC (Pt.VI) 165; Ibrahim VS Barde (1996) 9 NWLR (Pt. 474) 513; Ojokolobo vs Alamu (1987) 3 NWLR (Pt.61) 377: Nonye Vs Anyichie (2005) SCN 306 @ 316. It was held in Saraki vs F.R.N. (2016) 3 NWLR (Pt. 1500) 531, that the main object of statutory interpretation is to discover the intention of the law maker, which is to be deduced from the language used. Furthermore, the provisions must be considered as a whole and not in isolation.

See:Obi vs INEC (2007) 11 NWLR (Pt. 1046) 560 @ 664 B-D; N.U.R.T.W & Anor vs R.T.E.A.N. & Ors. (2012) LPELR-7840 (SC) @ 28-29 F-A. ​An interpretation of Section 146 (c) of the ACJL, which renders an information null and void because the accused contends that in his opinion, the statement of material witness were omitted or deliberately withheld by the prosecution, would lead to absurdity.

It would lead to the opening of the floodgates for any person accused of committing an offence to truncate, in limine, the hearing of any charge against him on the ground that the statements of material witnesses were not included in the information. The test of materiality then becomes subjective and not objective. As observed earlier, it is the Court, upon an application to it by the defence, that can determine the reasonableness of the request.

I agree with the respondent that at this stage, the appellant is not in a position to contend that his right to fair hearing has been breached, as he is yet to take his plea.

Trial in a criminal case is said to commence with the arraignment of the accused, which consists of the reading of the charge to him and the taking of his plea thereon. See: Lufadeju vs Johnson (2007) 8 NWLR (Pt.1037) 535; (2007) LPELR-1795 (SC) @ 43 E-F: Asakitikpi VS The State (1993) 5 NWLR (Pt. 296) 641 @ 652.

In the case of Isiyaku Mohammed Vs Kano State Native Authority (1968) 1 ALL NLR 424 @ 426, it was held, per Ademola, CJN: “We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. The true test of a fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case. We feel obliged to agree with this.” ​In conclusion, I am not persuaded to interfere with the concurrent findings of the two lower Courts.

I am not satisfied that there are grounds to nullify the information where the charge has not been shown to be defective and it is not alleged that the proof of evidence as it stands, does not disclose a prima facie case warranting some explanation from the appellant. I am of the view that an application to the Court for an order directing the prosecution to make the requested materials available would have met the justice of this case. I am equally not satisfied that the appellant’s right to fair hearing has been breached.

The appeal therefore fails and is hereby dismissed. The judgment of the lower Court delivered on 28th July, 2015 is affirmed. Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: My learned brother, Kudirat M. O. Kekere-Ekun, JSC, afforded me the opportunity of reading before now, a draft of his lead judgment just delivered. I completely agree with the reasoning, conclusion and order made therein. I adopt them, with respect as mine. I shall only add a few comments of my own in appreciation of the judgment.

​In the main, the Appellant’s grievance in this appeal is with the supposed breach of his fundamental right to fair hearing as enshrined in Section 36 (6) (b) of the 1999 Constitution (as amended) viz-a-viz Section 146 of the Administration of Criminal Justice Law of Anambra State. It is for that supposed breach of his right to fair hearing that he declined to plead to the charges citing a pending motion challenging the competence of the charge.

My Lords, it is a settled position of the law that criminal trial commences upon the arraignment of the accused person, when he pleads to the charges preferred against him either “guilty”‘ or “not guilty” as the case may be. It is at this point that issues are joined in a criminal trial. Until pleading is taken, the accused person(s) is technically outside the jurisdiction of the Court.

See Alkali Imam v Federal Republic of Nigeria (2019) 8 NWLR (pt. 1674) 197, Federal Republic of Nigeria v Mohammed Abubakar (2019) 7 NWLR (pt. 1670) 113, Lufadeju v Johnson (2007) 8 NWLR (pt. 1037) 535 at 562. ​It follows therefore that an accused person can only successfully make a case against the breach of his right to fair hearing after he has submitted himself to the jurisdiction of the Court by taking his plea and not before pleading to the charge.

In the case of Ganiyu v State (2013) 10 NWLR (pt. 1361) 29, this Court, per Onnoghen, JSC (as he then was) referring to Edibo v The State (2007) 13 NWLR (pt. 1051) 306 at 326 stated as follows:- “The arraignment and taking the plea of an accused person is the very commencement of a criminal trial. It is the stage when the accused person appears at the Court; the charge explained to his understanding and pleads thereto in person and not even through his counsel.

It is a very fundamental aspect of any criminal proceedings and that underscores the need for the strict and mandatory compliance in matters relating thereto. Thus any criminal trial, no matter how well conducted, without the plea of the accused person first and properly taken is a nullity.” His Lordship went on to state that:- “It must be pointed out that the taking of the plea of an accused person upon arraignment is a matter of procedural law, not substantive law, the defect on which renders the proceedings a nullity.

Such defect is regarded as a fundamental defect which goes to the jurisdiction of the Court.” From the foregoing, the starting point in a criminal trial is the arraignment of an accused person which becomes valid upon the plea of the accused. I agree that an allegation against a breach of right to fair hearing cannot be successfully raised in limine but at the close of trial when evidence must have been taken.

In the instant case, the Appellant has not complained that the proof of evidence sought to be quashed is defective. His only complaint is that exculpatory statements made by some witnesses are not included in the proof of evidence. He has failed to show how a valid proof of evidence which has sufficiently disclosed a prima facie case against him has occasioned a breach of his right to fair hearing.

All I have endeavoured to say above is that this appeal is bereft of merit and deserves to be dismissed. I also dismiss it. I abide by the orders rendered in the lead judgment. Appeal Dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: My learned brother, the Hon. Justice K.M.O. Kekere-Ekun, JSC has ordered me the privilege of a preview of the judgment just delivered. I entirely concur with the reasoning reached therein, to the conclusive effect that the present appeal is devoid of merits.

Hence, having adopted the said reasoning and conclusion as mine, I too unhesitatingly hereby dismiss the appeal for lacking in merit.

ADAMU JAURO, J.S.C.: I had the privilege of reading before now, the lead judgment just delivered by my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC. I agree with the reasoning contained therein and the conclusion arrived at.

It is not in doubt that Section 36 (6) of the 1999 Constitution (as amended) and Section 146 of the Administration of Criminal Justice Law of Anambra State seek to protect the right of an accused person to a fair trial. However, those provisions cannot be invoked or applied arbitrarily. They can and should only be invoked in appropriate instances. I am of the firm view that the facts of this case do not support the invocation of the aforesaid provisions. The case of OKOYE & ORS v.

C.O.P & ORS (2015) LPELR-24675 (SC) heavily relied on by the Appellant has different facts and circumstances and is distinguishable from the instant appeal. The reliefs sought by the Appellants in that case did not include the quashing of the information. The Appellants only sought to have the relevant materials that would assist them in preparing their defence made available to them. The issue of quashing of the information or doing so on the basis of a purportedly incomplete proof of evidence was therefore not considered by this Court in that case.

Rather than seek an order of the trial Court to compel the Respondent to avail him of the necessary facilities to enable him prepare his defence as the Appellants did in Okoye’s case (supra), the Appellant herein ill-advisedly approached the trial Court to quash the information preferred against him. The Appellant has not demonstrated that the information preferred against him is defective, neither has he shown that same does not disclose a prima facie case against him. Consequently, he has no basis to seek that the information be quashed. See IBRAHIM v.

STATE (2017) LPELR-42261 (SC); OHWOVORIOLE V. FRN & ORS (2003) LPELR-2364 (SC); IKOMI & ORS v. STATE (1986) LPELR-1482 (SC).

​In conclusion, the Appellant has failed to show that the concurrent decisions of the two lower Courts are perverse. Hence, this Court cannot interfere with same. I therefore join my learned brother in dismissing the appeal as same is totally devoid of merit. The judgment of the lower Court delivered on 28th July, 2015 is hereby affirmed.

EJEMBI EKO, J.S.C.(DISSENTING): I read in draft, the judgment just delivered in this appeal by my learned brother, K. M. O. Kekere-Ekun, JSC.

I do not agree with the conclusion therein; particularly on the point (in agreement with the Respondent) that it was too early or premature for the accused person, the Appellant, to ask the trial High Court that the disputed proof of evidence prepared and filed, and duly served on the Appellant, be quashed in limine; the same being illegal and a clearly manipulated in disobedience of the mandatory provisions of Section 146(c) of the Administration of Criminal Justice Law of Anambra State, read together with Section 36(6)(b) of the Constitution. ​The office of the Attorney-General, as empowered by Section 211 of the 1999 Constitution, is not constituted to do mischief nor to flout the laws of Anambra State and any provision of the Constitution of the Federal Republic of Nigeria.

Let’s together read Section 146(c) of the Administration of Criminal Justice Law (ACJL) of Anambra State. It provides - 146. – The proof of evidence shall consist of- (a) (b) (c) the names, address and the statement of any material witness whom the prosecution does not intend to call; provided that the submission of such names shall not prevent the prosecution from calling any such witness at the trial if the prosecution later so desires.

This mandatory provision is designed to complement the mandatory provision of Section 36(6)(b) of the Constitution, to wit - 36.(6) Every person who is charged with a criminal offence shall be entitled to - (a) (b) to be given adequate time and facilities for the preparation of his defence ​In my firm view the “adequate - facilities for the preparation of his defence” include the proofs of evidence compiled in accordance with the mandatory provision of Section 146 of the ACJL; which does not give the prosecutor or the office of the Attorney-General the discretion to exclude any exculpatory statements of material witnesses interviewed by the investigators.

Section 146 of ACJL in actuality takes away from the prosecutor the discretion to exclude from the proofs of evidence such exculpatory statements of material witnesses that are beneficial to the accused person. The import of Section 146 ACJL is that the proofs of evidence is only valid if it consists of “the names, address and statement of any material witness whom the prosecution does not intend to call”.

Therefore, reading this provision viz-a-viz Section 36(6)(b) of the Constitution the legislative intent is that there must be transparency and accountability in the administration of criminal justice in Anambra State. The provision imposes on the prosecutor, a duty to be transparent in the compilation of proof of evidence from the crime investigation records; hence, the further duty that both inculpatory and exculpatory statements of material witnesses interviewed must be included in the proofs of evidence.

A collateral right thus enures to the benefit of the accused person that he must be given such adequate facilities in the proofs of evidence for the preparation of his defence. That is my understanding what this Court, per Niki Tobi and Mahmud Mohammed, JJSC, stated in NEWSWATCH COMMUNICATIONS LTD v. ATTA (2006) NWLR (pt. 993) 144 at 170-171 and 181-182, respectively, that fair hearing is a two-way traffic. It imposes on the prosecution the duty to compile and serve on the defence, a proof of evidence compiled in accordance with Section 146 ACJL.

That duty is co-terminus with the right of the defence to be served the proofs of evidence compiled in terms of the mandatory provision of Section 146 ACJL. It is clear from OKOYE v. C.O.P (2015) 17 NWLR (pt. 1488) 276 that the moment a person faces criminal charge, his personal liberty is at stake. The moment he is arrested for a criminal offence, Section 35(3) of the Constitution makes it mandatory that he “shall be informed in writing - of the facts and grounds for his arrest and detention”.

It is further recognition of his right to personal liberty and the right against the prosecutor’s ambush that the Full Court in OKOYE v. C.O.P (supra) stated that Section 36(6)(b) of the Constitution makes it a sine qua non that a person imminently facing trial for a criminal offence must be given adequate facilities for the preparation of his defence. It is, therefore, not a privilege but a legal or statutory right that this Appellant herein must, consistent with Section 36(6)(b) of the Constitution, be given the proofs of evidence compiled in full compliance with Section 146 ACJL.

It must include both inculpatory and exculpatory statements of material witnesses. On what facts does the High Court determine that a prima facie case has been made out for the trial of the defendant to proceed; If not the full complement of the proofs of evidence compiled in accordance with Section 146 ACJL? Prima facie means there is ground for proceeding: KALU v. FRN (2016) 9 NWLR (pt. 1516) 1 at 26; following IKOMI v. THE STATE (1986) 3 NWLR (pt. 28) 340; OKORO v. THE STATE (1988) 5 NWLR (pt. 94) 255; ABACHA v. THE STATE (2002) 11 NWLR (pt. 779) 437.

Conversely, as Hubbard J, put it in R. v. COKER & ORS 20 NLR 62 at 63 there is no prima facie case when, there is no evidence on which the Court could convict. The latter cases following this dictum include IBEZIAKO v. C.O.P. (1963) NNLR 88; C.O.P. v. EBIKAKE (1966) NNLR 132. ​Putting it the other way: there is a prima facie case when the facts are such that if uncontradicted and believed it will be sufficient to establish the guilt of the accused person: POLICE v. AJIDAGBA 3 FSC 5.

It is now trite that when the prosecution presents to the Court two versions of the same incident; one inculpatory, the other exculpatory, there would no proof beyond reasonable doubt: PAUL AMEH v. THE STATE (1978) 6-7 SC 27: BOY MUKA v. THE STATE (1976) LPELR -1924 (SC). Consistent with the dicta of this Court in ONUBOGU v.

THE STATE (1976) 2 SC 79 at 83-84 and others, I should think that the High Court, in determining from the proofs of evidence whether a prima facie has been disclosed, must consider the totality of the facts, including the inculpatory and exculpatory statements of material witnesses, disclosed in the proofs of evidence. Here, in my humble view, lies the mischief of the prosecution, the Respondent, in this case in their strident drive and desire to ensure that the Court did not see the exculpatory statements of material witnesses.

The gimmick is both illegal (by dint of Section 146 (c) of the ACJL read together with Section 36 (6) (b) of the Constitution), ​as well as unprofessional and unethical (by dint of Rule 32(2) (j) & (k) of the Rules of Professional Conduct for Legal Practitioners 2007 - enjoining a lawyer not to promote, in abuse of Court process, a case which to his knowledge is false) the purport of Section 146 ACJL is that the Prosecution, mandatorily shall put all cards on the table and present to the Court both inculpatory and inculpatory statements of material witnesses in order to enable the judicious and judicial determination of the question: whether the totality of facts disclose a prima facie case against the accused person.

When the prosecution deliberatingly, albeit illegally, weeds out exculpatory statements of material witnesses contrary to Section 146 ACJL; he does so mischievously to force the Court into a one-way traffic lane. The intent is obvious - not only to deny fair hearing to the defendant but also to attain inglorious travesty of justice. The effect of non-compliance with mandatory provisions of a statute is two fold: the act is firstly a nullity: SANMABO v. THE STATE (1967) NMLR 314 at 317; SAKA v. THE STATE (1981) 11-12 SC 65;  GWONTO v. THE STATE (1982) NCLR 312.

Secondly, it occasions a miscarriage of justice: HARUNAMI & ANOR v. BORNU N. A (1967) NNLR 19; SAKA v. THE STATE (supra). The grouse of the Respondent is that it is too early or premature for the defendant, the Appellant, to ask that the offensive proofs of evidence compiled and filed to support the information against him be quashed in limine. The contention is one track minded.

The Appellant complaints that the proofs of evidence compiled in defiance or disobedience of the mandatory provision of Section 146(c) of the ACJL read together with Section 36 (6) (b) of the Constitution is illegal, ultra vires and a nullity; and that it adversely affects his right to fair hearing, guaranteed by Section 36(6)(b) of the Constitution.

I do not think the Respondent is right in his contention. ​Section 46(1) of the Constitution allows any person who alleges that any of the provisions of Chapter 4 of the Constitution, including Section 36 (6)(b) thereof, has been, is being or is likely to be contravened to apply to a High Court for redress.

In my judgment, from the facts and circumstances of this case, the Appellant acted timeously, as he did in the application, to quash the information supported by the illegal proofs of evidence designed to deny him his right to fair hearing, guaranteed by Section 36(6)(b) of the Constitution, read together with the mandatory provision of Section 146(c) ACJL. We, as Court of justice, should not sacrifice substantial justice for procedure, albeit sheer technicality.

Section 146 ACJL should be given a purposeful construction, rather than a restrictive interpretation that will deny the Appellant the right conferred on him thereby: NAFIU RABIU v. THE STATE (1980) 8-11 SC 130; ONYEMA v. OPUTA (1987) 6 SC 362.

The promotion of justice and transparency in the manner the office of the Attorney - General, pursuant to Section 211 and 36(6)(b) of the Constitution read together with Section 146 ACJL, discharges its prosecutorial functions, accountability and transparency are what the provisions demand on and obligate the prosecutorial authorities to attain. ​I will consequently allow the appeal in its entirety. Appeal allowed. The information supported by the illegal proofs of evidence shall be, and are hereby struck out. Appeal allowed.

Judgment

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Abuja Division; Coram, Abubakar Datti Yahaya, Regina Obiageli Nwodo and Tinuade Akomolafe-Wilson JJCA, delivered on the 7th day of June, 2013. In its judgment the Court below set aside the conviction and sentence of the appellant by the Federal High Court, Abuja for the offences of conspiracy defrauding of the nominal complainant (Ambassador Edem) and concealment of the sums of money allegedly defrauded.

The appellant (respondent at the lower Court) aggrieved by the decision of the Court below, filed a notice of appeal on 3rd day of July, 2013.

FACTS BRIEFLY STATED The accused person now respondent with another said to be at large were charged to the Federal High Court, Abuja in Charge No. FHC/ABJ/CR/161/2008 on a fifteen (15) Count charge of conspiracy, which is Count 1, defrauding of the nominal complainant (Ambassador Sam Edem) of various sums of money at different dates under Counts 2-14 and concealment of the sums of money allegedly defrauded of the nominal complainant which is Count 15.

​The respondent and

1

one other person who is now at large was arraigned before the Federal High Court, Abuja on a fifteen (15) count charge contained in charge sheet dated and filed on 19/9/2008 for the offences mentioned in the charge.

At the trial, with 12 witnesses testifying for the prosecution and tendering 45 Exhibits, a no case submission was made on behalf of the 1st accused now respondent.

That Trial Court in a considered Ruling delivered on 23rd day of April, 2010 discharged the 1st Accused who is the Accused/Respondent herein on count 1, the count of conspiracy to defraud as well as counts 2-14 which alleged that the 1st Accused/Respondent herein defrauded the nominal complainant of about N800 million.

However, the Trial Court ordered that the 1st Accused/Respondent herein enter a defence on Count 15 relating to concealment of the money allegedly defrauded of the nominal Complainant as charged in counts 2-14.

In his defence, the 1st Accused/Respondent herein called one Eka Uluoma as DW1 and was duly cross-examined by the prosecution. The 1st Accused/Respondent also testified as DW2 and closed his case on conclusion of his cross-examination by

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the prosecution on the 10th November, 2010.

The crux of the 1st Accused/Respondent’s defence at the trial Court was that as far as the 15th Count was concerned, it is Ancillary or consequent upon the success of Counts 2-14 of the charge. At the end of the case of the defence, written addresses were submitted and adopted on the 23rd of March, 2012. (See page 500-501 of the Record of Appeal)

In its judgment, the trial Court found the 1st Accused/Respondent guilty of Count 15 of the Charge on concealment of what 1st Accused allegedly defrauded the nominal complainant even though the same Judge in a no case submission held that the Prosecution could not prove Counts 1-14 relating to the issue of defrauding the nominal complainant. The trial Court convicted the 1st Accused/Respondent for concealing sums of money part of the money referred to in counts 1-14.

​After convicting the 1st Accused/Respondent, the trial Court went further to sentence him to seven years imprisonment with hard labour. The Trial Court left the issue of forfeiture of the vehicle tendered as Exhibits as well as the money in the frozen account all belonging to the 1st Accused

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to abide by the decision of the Court of Appeal. (See page 736-737 of the record of appeal Volume 1)

AT THE COURT OF APPEAL Aggrieved with the decision of the Trial Court, the 1st Accused/Appellant therein appealed to the Court of Appeal vide a Notice of Appeal filed on the 14th day of May, 2012. The Notice of Appeal contained twelve (12) Grounds of Appeal filed on the 14th day of May, 2012.

The Prosecution/Respondent therein equally dissatisfied with the judgment of the trial Court on the issue of forfeiture, confiscation and restitution, cross appealed to the Court of Appeal vide a notice of cross appeal filed on the 31st July, 2012, on two grounds of appeal. (See Pages 928-932 of the record of appeal volume 2). The Justices of the lower Court formulated one issue for determination: “Whether Count 15 is dependent on Counts 2-14. In other words, whether the major ingredients of the offence to be proved in counts 15 are essentially the elements to be proved in counts 1-14.”

The Court below set aside the judgment of the trial Court and discharged and acquitted the appellant now respondent of count 15 upon which the trial Court had convicted

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him. The lower Court also dismissed the cross appeal of the respondent now appellant.

Dissatisfied by the Court of Appeal’s decision the appellant(respondent at the lower Court) has come before the Apex Court to ventilate his grievances on seven grounds of appeal.

On the 5/11/2020 date of hearing, learned counsel for the appellant, Simon Lough (ACP) adopted the brief of argument filed on the 7/3/2019 and deemed filed on 14/3/2019. In it were raised six issues for determination, viz:- (a) Whether the learned justices of the lower Court were right when they held that two elements of offence in count 15, that is fraud and concealment must be proved and count 15 is dependent on the success of counts 2-14.

Ground one and four. (b) Whether the learned justices of the lower Court properly evaluated the totality of the evidence adduced at the trial Court before coming to the conclusion that the judgment of the trial Court was a reversal of his former ruling. Ground two (c) Whether the learned justices of the lower Court denied the Appellant the right to fair hearing when they raised an issue suo motu and resolved same without inviting parties

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to address them on the said issue. Ground three (d) Whether the learned justice of the lower Court were right when, they held that if an accused person has been discharged of the principal offence he cannot be found guilty of conspiracy because the ancillary offence cannot proceed without the substantive offence.

Ground five. (e) Whether the learned justices of the lower Court were right when they held that from the provisions of Advance Fee Fraud Act 2006, count 15 was definitely a consequential charge dependent on the success of Counts 1-14 which the trial Court discharged the respondent upon the no case submission. Ground six. (f) Whether the learned justices of the lower Court denied the appellant fair hearing when they held that it amounted to a waste of time to consider the issues in the cross-appeal of the appellant before dismissing same. Ground seven.

Learned Counsel for the respondent, Agada Elechi, Esq adopted the brief of argument filed on 8/3/2013 and deemed filed on 14/3/2019. He adopted the issue formulated by the appellant and formulated two issues for determination thus- 1. Whether the lower Court was right in holding

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that count 15 of the Charge is ancillary and/or consequential upon the success of Counts 2-14 of the charge. 2. Whether the Court of Appeal was right in holding that the claim of the respondent/cross appellant goes to no issue since the substantial offence has not been established.

I shall make use of Issue (b) of the appellant as a sole issue since it meets with all the questions raised in this appeal.

SOLE ISSUE Whether the learned justices of the lower Court properly evaluated the totality of the evidence adduced at the trial Court before coming to the conclusion that the judgment of the trial Court was a reversal of his former ruling.

​Learned counsel for the appellant submitted that the Court below was in great error when they held that the two elements of the offence in Count 15, that is fraud and concealment must be proved and count 15 is dependent on the success of counts 2-14 of the charge. That the Court was also wrong when they held that a discharge of the principal offence means the accused person cannot be guilty of conspiracy because an ancillary offence cannot proceed without the substantive offence.

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For the appellant, it was further contended that count 15 of the charge on which the respondent was convicted is distinct and can be proved on its own without necessarily tying it to any other count in the charge sheet. He cited Section 7 of the Advance Fee Fraud and other Related Offences Act, 2006 in which Count 15 was charged.

That from the evidence of PW1-PW3 and exhibits 1-45 and the evidence of DW1-DW2, there was no doubt that it was established beyond reasonable doubt that the respondent conducted a financial transaction which involved the proceeds of an unlawful activity and the transaction was designed in whole to conceal the nature. That the trial Court found Count 15 of conspiracy as independent of Counts 2 – 14 of the charge and so could stand on its own. He relied on Shurumo v State (2010) 16 NWLR (pt. 1218) 65.

For the appellant, it was submitted that the judgment of the trial Court was based on a total evaluation of the evidence adduced at the trial and not a reversal of the ruling of the trial Court wherein he discharged the respondent. That the ingredients of the offence in count 15 of the charge upon which the respondent was convicted are

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distinct from the ingredients of the offences in count 1-14 of the charge.

Learned counsel for the appellant stated that the prosecution proved the offence in count 15 beyond reasonable doubt.

Mr. Lough for the appellant submitted that by Section 7(6) (d) of the Advance Fee Fraud Act, the form of the unlawful activity need not necessarily be specified as what is pertinent is that the accused knows or ought to know that the property involved in the financial transaction represents the proceeds of some form of unlawful activity and that was evident in the case at hand.

Learned Counsel for the appellant contended further that where a Court suo motu raises an issue it must give counsel opportunity to address on the matter before the verdict but in this case, counsel was not given that opportunity. He cited Ojo Osagie v Sunday Adonri(1994) 6 NWLR (pt. 349) 131 at 142.

That the right to fair hearing of the appellant was compromised when counsel did not address Court before verdict when the Court below raised the issue concerning the framing of the charge suo motu. He relied on Achuzia v Ogbomah (2016) 11 NWLR (pt. 1522) 59 at 81 etc.

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Learned Counsel for the respondent contended that the ruling of the trial Court stating as reason for convicting the accused/respondent of the offence of concealment is because the complainant/appellant proved her case beyond reasonable doubt on the strength of evidence led is perverse and contrary to reason. That count 15 cannot stand alone as the accused/respondent was exculpated of all fraudulent offences contained in Counts 2-14.

For the respondent, it was submitted that the learned trial judge indirectly amended the charge without calling upon the accused/respondent to plead to the amended charge. He cited Yusuf v State (2011) 18 NWLR (pt. 1279) 853.

That the effect of a defective charge is that the accused can be discharged on such a defective charge as a charge is to be clear and devoid of any form of ambiguity. He relied on Ojo v FRN (2008) 11 NWLR (pt. 1099) 467 at 513-514.

On the issue of the cross-appeal, the learned counsel for the respondent submitted that the Court of Appeal was right in holding that since the appeal against the conviction based on count 15 succeeded at the Court below and the respondent (appellant herein) was discharged

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and acquitted of same, there was no leg on which the cross appeal can rest.

I shall reproduce count 15 upon which the respondent was convicted. It reads as follows:- “That you Matthew Sonoma (alias Dr. Perebakwe Ogah) ‘m’ 34 years native Doctor of Bomadi Delta State on or about the 10/7/2008 with intent to conceal the money, you fraudulently collected from Ambassador Sam Edem (former chairman of NDDC) executed a transfer letter of the sun of One Hundred and Fifty-Two Million Naria (N152m) to be paid into your Oceanic bank Account number, 007170120031 and the said money was transferred into the said account.

You thereby committed an offence contrary to Section 7(2) (b) of the Advance Fee Fraud and Other Related Offences Act 2006.”

… 7(1) A person who conducts or attempts to conduct a financial transaction which in fact involved the proceeds of a specified unlawful activity- (a) With the intent to promote the carrying out of a specific unlawful activity; or (b) Where the transaction is designed in whole or in part – i. To conceal or disguise the nature, the location, the source, the ownership or control of the proceeds of a specified

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unlawful activity; or ii.

To avoid a lawful transaction under Nigerian law, is guilty of an offence wider this Act if he knows or ought to know, having regard to the circumstances of the case, that the transaction represents the proceeds of some form of unlawful activity. 7(2) A person who commits an offence under Subsection (1) of this Section is liable on conviction – (a) In the case of a financial institution or corporate body, to fine of N1 million and where the financial institution or corporate body is unable to pay the fine, it assets to the value of the fine shall be confiscated and forfeited to the Federal Government; or (b) In the case of a director, secretary or other officer of the financial institution or corporate body or any other person, to imprisonment for a term not more than 10 years and not less than five years.

​At page 54 of the Record, it is seen what the learned trial judge stated in respect of his Ruling on the no case submission, thus:- “It is not a ruling by which I made any finding that the 1st accused did not take or collect money from Ambassador Sam Edem, it was the purpose and method by which the said

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monies were collected that I was unable to reconcile with the allegation of threat and inducement when PW8 as the nominal complainant told the Court, contrary to the statement he made with the Police and amongst other things that the various sums of money which was paid to the 1st accused person were either loans or a friendly gifts and those which were loans the 1st accused person had promised to payback.”

The Court of appeal in its review of what the trial Court did, held as follows:- “When an accused person has been discharged at that stage of stolen goods for example, the accused charged for receiving the same goods cannot be found guilty of receiving the same goods upon which the accused person has been discharged, thus after a discharge on counts 1- 14 which required the proof of fraud as in count 15, there is no extant offence for the defence to answer”.

The question arising with respect to count 15 of the charge as to whether it is ancillary and/or consequential upon the success of counts 1-14.

It has to be noted that counts 2-14 related to the alleged fraud committed by the appellant when he, by inducement and threat, collected

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various sums of money from PW8 amounting to about N800 million. There is no gainsaying that to succeed in counts 2-14, the prosecution must prove fraud beyond reasonable doubt. Count 15 on its part has two essential ingredients of the offence which are- 1. There must be proof that the respondent fraudulently collected money from Ambassador Sam Edem (PW8). 2. After obtaining the money fraudulently in order to conceal the fraudulent acts, the respondent decided to transfer N152 million of part of the money so fraudulently collected into another bank.

It follows from the elements consisting count 15 that the money fraudulently collected has to be proved before the issue of concealment of the money comes into play. It then becomes difficult not to see the dependence of count 15 on Counts 2-14.

​The follow up question that arises is, if a person can be said to have fraudulently concealed sums of money he never stole and the persuasion is to answer in the negative in view of the ruling of the trial Court on the no case submission when he discharged the respondent on count 1, the charge of conspiracy to depend as well as counts 2-14 which alleged

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that the respondent defrauded the nominal complainant of about N800 million. The learned trial judge had held in the no case submission ruling that the prosecution failed to prove the alleged offences in count 1 – 14 beyond reasonable doubt, hence the discharge on those counts in effect taking along the evidence led could not prove the offence of count 15.

It needs be reiterated that in a criminal matter, a successful submission of no case to answer means no prima facie case has been made out against an accused person because the Prosecution has failed to prove the essential ingredients of the offence charged against the accused person. In other words, there is no admissible evidence linking the accused person in anyway with the commission of the offence with which he had been charged with. Section 286 Criminal Procedure Act Cap.

C41 Laws of the Federation 2004 states as follows: “If at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence the Court shall, as to that particular charge, discharge him. Such a discharge is tantamount to an

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acquittal for which a plea of autrefois Prosecution”. Also, in the case of SUNDAY CHIJIOKE AGBO & ORS. V. THE STATE (2010) LPELR-4989 (CA) the Court of Appeal held thus: “The meaning of a no case submission is that there is no case for an accused person to answer as there is no evidence on which even if the Court believes it, it could convict. The question whether the Court does believe the evidence does not arise nor the credibility of the witness becomes an issue at this stage.” See also: Tongo v C.O.P (2007) 12 NWLR (pt. 1049) 525, STATE V ASUNMO & ORS (2017) LPELR-42606 (CA).”

Having exculpated the Accused/Respondent of all fraudulent offences as contained in Counts 2-14, it evidently means that Count 15 will fail too, as the basic ingredient of Count 15 is fraud. Thus, it is not severable from counts 2 – 14. In this, I agree with learned counsel for the respondent. Since the Prosecution/Appellant failed to prove the major ingredient of the offence in count 15 and since count 15 is predicated on the element of fraud, upon which the other ingredients of concealment revolve, if fraud fails then count 15 cannot stand. It automatically

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crumbles like a pack of cards, as it has no legs upon which to stand. It is the Appellant’s contention in this appeal, that Section 7 of the Advance Fee Fraud and Other Related Offences Act 2006 under which the respondent was charged in count 15 of the charge did not mention the word “fraudulently”, but rather the words “unlawful activity”. Those words “unlawful activity” are merely semantics as they amount to fraud or such like description. It did not give count 15 the independence or distinct status of a lone ranger in the event that the other counts 1-14 failed.

The Court of Appeal was of the view that where an accused person has been discharged pursuant to a successful ruling on a no case submission of the substantive or main offence, the Court cannot proceed to convict on the ancillary offence. This is because the ancillary offence must necessarily be tied to the principal offence for it to stand as they share common ingredients of the offence charged. I cannot but agree more with those views expressed by the Court below. See Ikem v State (1985) 1 NWLR (pt.2) 378 at 388.

It must be brought to the fore that the learned trial judge by

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bringing in the words “unlawful activity” as what should be in count 15 as against the word “fraudulently” instead drafted by the prosecution in the charge. The learned trial judge indirectly amended the charge without calling upon the accused/respondent to plead to the amended charge and the plea not taken upon this surreptitious amendment to the charge has run foul of the law and our criminal jurisprudence. The fall out is that the whole trial was rendered a nullity. I rely on Yusuf v State (2011) 18 NWLR (pt. 1279) 853; Olabode v State (2007) All FWLR (pt. 389) 1301 at 1323.

​I have to state that an accused person can only be charged with the offence known to law and so when the prosecution used the word, “fraudulently” in the charge when Section 7(2)(b) (i) of the Advance Fee Fraud Act 2006 under which count 15 was brought had not used the word, while the learned trial judge had proffered his drafting skill when he said the words, “unlawful activity” ought to have been used by the prosecution in framing the count 15. What have been shown up is that the charge was defective and the appellant on that account should have been discharged. Courts are

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enjoined to ensure that a charge is clear and void of any form of ambiguities. See Ojo v FRN (2008) 11 NWLR (pt. 1099) 467 at 513-514.

Again to be noted is that Section 7(2)(b) of the Advance Fee Fraud and other Related Offences Act, 2006 quoted in count 15 of the charge is actually the punishment section as the section for the offence is Section 7(1) (b) (i) of the Act. A careful look at the words of the enactment – Section 7 (1) (b) (i) depicts that the phrase “unlawful activity” must be specified which means that the financial transaction which involves an unlawful activity to be identified, it must be named in the charge for the understanding of the accused person.

The activity must be tied to the unlawful transaction for it to be an offence, as the phrase “unlawful” in itself is vague. I hereby quote Section 7 (1) (b) (i) below: 7(1) “A person who conducts or attempts to conduct a financial transaction which in fact involved the proceeds of a SPECIFIED unlawful activity. b. Where the transaction is designed in whole or in part. c. To conceal or disguise the nature, the location, the source, the ownership or the control of the proceed

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of a SPECIFIED unlawful activity…” “ADVANCE FEE FRAUD AND OTHER RELATED OFFENCES ACT” Directly underneath this title is the interpretation or explanatory note and it states: “An Act to Prohibit and punish certain offences pertaining to Advance Fee Fraud and other fraud related offences and to repeal other Acts related there with”. Thus, count 15 which derives its validity from the above section, cannot see the light of day since fraud with which the Act is established for has been held not to have been proven. Thus, count 15 cannot stand on it’s own, it collapses with the others.

It can be seen that the Court of Appeal was right in its judgment on the fact that “unlawful activity” cannot be distanced from fraud.

On the matter of the cross-appeal, the appellant contends that it was denied fair hearing when the Court below held, it was a waste of time to go into the issue raised in the cross-appeal and went on to dismiss the cross-appeal. This position taken by the appellant is clearly misguided and without basis. The reason is because the cross-appeal is not against the discharge of the appellant on counts 1-14 but of the

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refusal of the trial Court to order confiscation, forfeiture and restitution after it had found the appellant (now respondent) guilty of the offence in count 15.

I do not hesitate in stating without hesitation that the Court of Appeal was right in throwing out the cross appeal without considering the issues raised therein as there was no foundation on which the cross appeal lay with counts 2-14 on which it earlier rested no longer in existence, therefore a void remained hence the Court below was left with the only option which is to discountenance the cross-appeal as there was nothing on which it was hinged. Something cannot be placed on nothing since it cannot stand. See UAC v Mcfoy (1961) 3 All ER 1169.

It is clear that this appeal from the foregoing lacks merit and I dismiss it. I affirm the judgment of the Court of Appeal which set aside the decision, conviction and sentence of respondent. I reaffirm the acquittal and discharge of the respondent. Appeal dismissed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead judgment of my learned brother, Peter-Odili, JSC just delivered. I am in agreement with the reasoning

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therein and conclusion arrived thereat, that there is no merit in the appeal and it should be dismissed. I too will dismiss it. Appeal dismissed.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgment, which my bother, Mary Ukaego Peter-Odili, JSC delivered now. I agree with His Lordship that there is no merit in this appeal. It therefore, deserves to be dismissed.

As noted in the leading judgement, the learned trial Judge, indirectly, amended the Charge. The accused person (respondent herein) was not called upon to plead to the amended Charge. As such, his plea was not taken.

Now, “the prisoner at the Bar [that is, the accused person]” per Idigbe JSC in Nwafor Okegbu v State (1979) LPELR-SC.9/1977, upon being arraigned before the Court, has two options. In the first place, he may confess to the charge by a plea of “guilty”. In such a situation, the issue joined between him and the prosecution is a confession. Where there is that kind of admission of guilt, it would be non sequitur to talk of the legal burden of proof. This is so for no burden of proof rests on the prosecution, it having been

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discharged by the admission of the accused person, Dongtoe v CSC, Plateau and Ors [2001] FWLR (pt 50) 1671; Adeniji v The State [2001] 13 NWLR (pt 730) 375; Akibu Hassan v State [2001] 7 NSCQR 107; Gozie v State [2003] NSCQR 754; Nwachukwu v State [2002] 11 NSCQR 613. On the other hand, he may deny the charge by pleading (by word of mouth -ore tenus) “not guilty.” Where he takes this option, the issue joined is a wager of the prosecution to prove.

In other words, “he is deemed to have put himself upon his country for trial and wagers the prosecution to the proof of every fact and circumstance constituting the offence or offences in the charge or information,” per Aniagolu JSC (of the Blessed Memory) in Nwafor Okegbu v State (supra).

As shown above, the bone of contention here is that, after the surreptitious amendment, the trial Court proceeded with the trial without taking a fresh plea from the accused person/respondent.

​Now, what crystallizes from the majority of the decisions is that, where in the course of trial, a charge or information is amended, a fresh plea must be taken. Failure to obtain a new plea would render the trial null and

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void, Eronini v The Queen (1953) 14 WACA 366, 369; R v Fox (1947) 12 WACA 215; R v Ogunremi (1961) ANLR 467; A. G. Western Region v Raimi Adisa (1966) NMLR 144, 146; Joseph Okosun v State [1979] 3-4 SC 36, 52; Okwechime v Police (1956) 1 FSC 73; Jones v Police (1960) 5 FSC 38, approvingly, cited per Irikife JSC (as he then was) in Nwafor Okegbu v State (supra); Kajubo v The State [1988] 11 NSCC 475.

In this connection, it may be noted that “there can be [no] further quibble about the meaning of the words ‘alteration’ and ‘amendment.’ Indeed, there is no “doubt that an ‘amended’ charge has thereby, been ‘altered,'” per Jibowu Ag. FCJ in Okwechime v Police (supra), endorsed per Aniagolu JSC inNwafor Okegbu v State (supra). It is immaterial that the alteration in the charge is of a minor and trivial nature, Youngman v. Commissioner of Police (1959) 4 FSC 283, 284-285; Jones v Police (1960) 5 FSC 38; Joseph Okosun v State (supra); Eronini v Queen (supra); O.

Doherty, Criminal Procedure in Nigeria: Law and Practice (London: Blackstone Press Ltd. 1990; 1999) 234; see, however, O. A. Onadeko, The Criminal Trial Procedure (Lagos: Lannon Nigeria Ltd. 1998) 235.

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It is for these, and the more detailed reasons in the leading judgment that I too, shall enter an order dismissing this appeal. I abide by the consequential orders in the leading judgement. Appeal dismissed.

EJEMBI EKO, J.S.C.: I agree, as Lady MARY UKAEGO PETER-ODILI, JSC has just held in the judgment just delivered in this appeal, that this appeal lacks merits.

The sum of N152,000,000.00; the subject of count 15 at the trial Court, formed part of the sum of N800,000,000.00 the respondent had allegedly defrauded the complainant of. This larger sum of N800M formed the substance of counts 2 – 14. At the close of the prosecution (the appellant’s) case at the trial Court and upon a “no case” submission, the trial Court upheld the no-case submission and absolved the respondent of any criminal liability in respect of counts 1 – 14.

The respondent was however ordered to defend himself on count 15 that suggested inter alia that the respondent – “With intent to conceal the money fraudulently collected (the sum the subject of counts 2 – 14) executed a transfer letter of (N152M) to be paid into (the respondent’s) Oceanic Bank Plc

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account and the said sum was transferred into the said account” – contrary to Section 7(2)(b) of the Advance Fee Fraud and other Related offences Act. At the expense of repetition, the sum of money the subject of Counts 2 – 14 is N800M.

Count 15 specifically alleged that the respondent, with intent to conceal the fraud the subject of counts 2 – 14 – the N800M fraudulently collected from the complainant, executed a transfer letter (of instruction) that the sum of N152M (out of the N800M) be paid into his personal account domiciled with the Oceanic Bank Plc and the said N152M was accordingly transferred. ​The trial Court; notwithstanding that it had dismissed counts 1-14 against the respondent – finding not proved the allegations that the respondent herein fraudulently received or collected the total sum of N800M from the complainant, had nonetheless ordered the respondent to enter upon his defence on count 15, which he did, and eventually convicted him of criminally transferring N152M (out of the same N800M) with intent to conceal the fraud involving the said N800M.

It sounds rather illogical. The lower Court, on the appeal of the respondent; had

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set aside the warped reasoning of the trial Court; hence this further appeal by the prosecution. Curiously; the appellant; as the prosecutor, did not appeal the finding that the facts constituting the bases for counts 1 – 14 were not proved against the respondent. A specific finding of fact, adverse to party, not appealed by such party is taken as conclusive and acceptable to such a party. This is both trite and common sense.

The law on autrefois acquit, as codified in Section 36(9) of the 1999 Constitution, as amended, is that No person who shows that he has been tried by any Court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court.

In other words, the statutory defence in Section 36(9) of the Constitution operates as ”estoppel per judicatam” – estopping the appellant, as the prosecutor, from further asserting that the respondent fraudulently collected or obtained the sum of N800M from the complainant: part of which sum is the amount of N152M the respondent

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allegedly caused to be transferred to his Oceanic Bank Plc account, the subject of Count 15. On this note, I agree with Dr. Agada Elachi, of counsel to the respondent, that the holding of the trial Court, upon a no case submission, that the respondent did not defraud the complainant of N800M is conclusive that the said sum was obtained or collected from the said complainant by the respondent criminally. Apropos, count 15 cannot stand independent of counts 2 -14.

At pages 725 – 726 of the Records – the trial Court, in order to avoid the consequence of its adverse finding that counts 2-14 were not proved, attempted a disingenuous, albeit unethical, amendment of count 15 suo motu by formally removing therefrom the word “fraudulently” and substituting therefor the words: “unlawful activity”. This, the trial Court did unilaterally without due concurrence of the prosecution or the defence.

The reason for this quixotic justice is that in the wording of the relevant statutory provision; the word fraudulently was not there, rather it was the word: “unlawful activity”. The prosecutor, not the impartial Court, framed the charge(s). He it is, who should

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also apply to amend his charge. The trial Court, lacking the power to suo motu amend the charge(s), had thus descended into the arena and violated the respondent’s right to fair hearing guaranteed by Sections 17(2)(e) and 36 of the Constitution sustaining the principles of natural justice requiring its impartiality, neutrality and never to be a judge in his own cause (nemo judex in causa sua). In any case, the raison d’etre of the trial Court for its act of desecration of the hallowed principle of natural justice or fair hearing was hollow. It lacked substance.

Unlawful activity, I dare say, includes fraud, fraudulent activity or illegality. The trial Court’s unilateral amendment, done suo motu, is a clear evidence of the trial Judge’s vested interest that the respondent must be convicted at all costs. The unethical amendment was a clear evidence that the charge in count 15 was fundamentally defective, entitling the respondent (the accused person) to the benefit of doubt.

​This should have conveniently ended the matter. I will however comment briefly on the appellant’s suggestion that the complainant was entitled to be restituted. He would only have been

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entitled to be restituted if the prosecution had proved successfully and satisfactorily and beyond reasonable doubt that the respondent had defrauded him (the complainant) through some unlawful activity. The trial Court’s finding, dismissing counts 2 – 14 in favour of the respondent, completely forecloses and estops the prosecution from insisting on any restitution order. Appeal dismissed.

UWANI MUSA ABBA AJI, J.S.C.: The Respondent with another now at large was charged to the Federal High Court, Abuja, on a 15 count charge of conspiracy, defrauding and concealment of money. 12 witnesses testified for the prosecution with 45 Exhibits tendered. A no case submission was made on behalf of the Respondent and in its ruling; the Respondent was discharged on the count of conspiracy and counts 2 to 14 by the trial Court. He was ordered to enter his defence on count 15, being concealment of the money.

He was however found guilty on count 15, convicted and sentenced to 7 years imprisonment with hard labour, while the issue of forfeiture of the vehicle tendered as exhibit and money in the frozen account belonging to the Respondent was unattended to by the trial

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Court. The decision of the trial Court generated both an appeal by the Respondent and a cross appeal by the Appellant to the lower Court. In its considered judgment, the lower Court discharged the Respondent on count 15 and dismissed the cross appeal of the Appellant. Dissatisfied, the Appellant has now appealed to this Honourable Court, seeking for determination of 6 prolific issues while the Respondent distilled 2 issues for determination of this appeal.

I adopt the issue couched by my learned brother, Odili, JSC, thus: Whether the learned justices of the lower Court properly evaluated the totality of the evidence adduced at the trial Court before coming to the conclusion that the judgment of the trial Court was a reversal of his former ruling.

By the ruling on the no case submission made by the trial Court, the Respondent was discharged of Counts 2-14 of the charge but subsequently convicted and sentenced on count 15. ​It must be understood that the 15 count charges against the Respondent were intricately interwoven and bound round one another. To exculpate him from counts 2- 14 means that count 15 has also lost its grip on him since they are all

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connected and allied offences that have same string binding them together. Besides, where a no case submission is upheld, it means that no prima facie case has been made against the accused person. A no case to answer can properly be made and upheld: (a) when there has been no evidence in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Tribunal could safety convict on it. See IBEZIAKO V. COMMISSIONER OF POLICE (1963) 1 ALL N.L.R. 61, ATANO V.

ATTORNEY-GENERAL, BENDEL STATE (1988) 2 NWLR (PT. 75) 201. It is well settled that after a successful submission of no case to answer has been made, an accused is no longer to be regarded as charged with that offence of which he was charged and must be discharged on the merits. See Per UMARU ATU KALGO, JSC in FIDELIS UBANATU V. COMMISSIONER OF POLICE (2000) LPELR-3280(SC) (P. 28, PARAS. D-E). Per ADOLPHUS GODWIN KARIBI-WHYTE, JSC in ADEBAYO ADEYEMI v. THE STATE (1991) LPELR-172(SC) (P. 58, paras. B-E), explained the situation clearer thus: Under our Constitution, there is no onus

32

on an accused person to establish his innocence. Hence, where at the close of the case of prosecution, no case has been made out against the accused, asking him to answer any charge connected with the offence with which he has been discharged is a reversal of the constitutional presumption of innocence by asking him to establish his innocence. No Court has such a jurisdiction… Consequently; every proceeding subsequent to the violation of the provisions of Section 36(5) of the Constitution is void having been conducted without competence.

​I therefore stand with the decision of my learned brother, Mary Peter Odili, JSC, that this appeal lacks merit. I hereby dismiss same.

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Judgment

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This is an appeal challenging the decision of the High Court of the Federal Capital Territory, Abuja, delivered on the 22nd of June, 2021 Coram A. O.

Otaluka (J.), wherein the trial Court found the Accused Person now Appellant guilty and convicted him on three Count Charge for the offence of corruptly asking for, agreeing to accept and accepting gratification contrary to the provisions of Sections 8(1)(a) and 17(1)(a) of the Corrupt Practices and other Related Offences Act, 2000 and punishable under the same Sections of the said Act.

I find the brief facts presented by the Respondent apt and I hereby reproduce same anon: That; “The Appellant was a member of the House of Representatives (7th National Assembly) and Chairman of the House of Representatives Ad-hoc Committee on monitoring of fuel subsidy regime, which was set up in 2012. ​That sometime in April, 2012 or thereabout, the Appellant while acting in his official capacity as a member of the House of Representatives Ad-hoc Committee on Monitoring of Fuel Subsidy Regime, corruptly asked for the sum of $3,000,000.00 (Three Million Dollars) for himself from one Mr.

Femi Otedola, Chairman, Zenon Petroleum and Gas Ltd, on account of intention of showing favour to Mr. Femi Otedola by removing the name of Zenon Petroleum and Gas Ltd. From the Report of the House of Representatives Ad-hoc Committee on Monitoring of Fuel Subsidy Regime. That the Appellant, while acting in the course of his official duty and capacity, corruptly obtained the sum $500,000.00 (Five Hundred Thousand Dollars) for himself from Mr.

Femi Otedola Chairman Zenon Petroleum and Gas Ltd as an inducement to remove name of Zenon Petroleum and Gas Ltd from the report of the committee on monitoring and fuel subsidy regime. That the Appellant pleaded not guilty to the charge and trial commenced. That in proof of its case, the Respondent called five (5) witnesses and tendered the following exhibits: I. Subpoena duces tecum served on PW1. II. Document titled ‘Order paper for the Special Session Sitting of the House of Representatives on Sunday, 8th January 2012. III.

First votes and proceedings of the Special Session Sitting of the House of Representatives on Sunday, 8th January, 2012. IV. Order paper of House of Representatives Sitting on Wednesday, 18th April, 2012. V. Votes and proceedings of House of Representatives Sitting on Tuesday, 8th April, 2012. VI. Order paper of House of Representatives Sitting of Tuesday, 24th April, 2012. VII. Votes and proceedings of House of Representatives Sitting on Tuesday, 24th April, 2012. VII.

Report of the Ad-hoc Committee to verify and determine the Actual Subsidy Requirements and monitor the implementation of Subsidy Regime in Nigeria, Resolution No: HR.1/2012 IX. Memo for forwarding $100,000.00 to the Defendant. X. CTC of Leadership Newspaper of 28th April, 2012. XI. Search warrant issued for search of house of Hon. Adams Jagaba. XII. Undertaking given by the Defendant dated 16th, June 2012 to refund the money $600,000.00. XIII. Diplomatic passport of the Defendant. XIV. Search Warrant issued for search of Defendant’s house. XV.

Document by the Defendant alleging handing over of the sum of $600,000.00 to Hon. Jagaba (PW4). XVI. PW2G -63: The Statements of the Defendant dated 14/6/2012. XVII. The statement of the Defendant dated 15/6/2012. XVIII. The statement of the Defendant dated 20/6/2021. XIX. The statement of the Defendant dated 11/7/2012. XX. The statement of the Defendant dated 16/7/2012. XXI. The statement of the Defendant dated 19/7/2012. XXII. The statement of the Defendant dated 25/7/2012. XXIII. Letter dated 19/4/12 referred to in exhibit PW2L. XXIV. Letter dated 23/4/12 written by Mr. Otedola to DG SSS.

XXV. The DVD. XXVI. The Certificate of compliance.” (See pages 5-7 of the Respondent’s Brief of Argument). At the close of the Respondent’s case, the Appellant made a No Case Submission which was overruled by the trial Court. The Appellant opened his defence, he testified for himself and 3 other witnesses. At the end of the trial, the Appellant was found guilty, convicted and was sentenced to 7 years each on Counts 1 and 2 and 5 years imprisonment on Count 3.

The sentences are to run concurrently. ​The parties in this appeal shall simply be referred to as Appellant and Respondent. ​Dissatisfied with the decision of trial Court, the Appellant filed a Notice of Appeal of twelve (12) Grounds on 28/07/2021. The Notice of Appeal is undated. Its Amended Notice of Appeal of fourteen (14) Grounds dated 20/10/2021 was filed on 21/10/2021 and was deemed filed on 10/11/2021.

The Appellant’s Brief of Argument dated 12/11/2021 was filed on 12/11/2021 while the Respondent’s Brief of Argument dated 21/12/2021 was filed on 21/12/2021 and was deemed filed on 12/01/2022. The Appellant filed its Reply Brief dated 10/01/2022 on 10/01/2022 and consequentially deemed filed on 12/01/2022. J. B. Daudu, SAN, of learned senior Counsel to the Appellant distilled six (6) issues for determination to wit; 1. Whether the High Court of the Federal Capital Territory Abuja, Per Hon.

Otaluka J, was not in grave error when it convicted the Appellant in one breath in count 1 for ‘corruptly asking for the sum of $3 Million from PW5 (Otedola)’ and in another breath convicting him of ‘corruptly agreeing to accept the sum of $3 Million from PW5 (Otedola)’ for identical purpose, when the 2 counts were not only duplicitous but are mutually exclusive, incongruous, embarrassing and prejudicial to the fair trial of the Defendant? (Ground 1, Amended Notice of Appeal). 2.

Whether the 3-count charge upon which the Appellant was purportedly tried, convicted and sentenced by the High Court of the Federal Capital Territory Abuja not incurably defective as the entire trial and the resultant conviction was based on a repealed or non-existent legislation i.e., the Corrupt Practices and other Related Offences Act 2000, which was repealed by the 2003 version? (Ground 2, Amended Notice of Appeal). 3.

Whether the trial High Court of the FCT Abuja was not in grave error when it held in relation to a critical ingredient common to the 3-count charge in this trial that the Appellant, a legislator in the House of Representatives of the National Assembly of Nigeria was ‘a public officer’ within the contemplation of the Corrupt Practices and other Related Offences Act 2000?

Or put in another way, whether a legislator in the National Assembly of Nigeria is for the purpose of the legislation referred to above also known as the ICPC ACT a ‘Public Officer’? (Grounds 3 and 4, Amended Notice of Appeal). 4. Whether the proceedings, trial and conviction of the Appellant under the Corrupt Practices and other Related Offences Act, 2000, was not a nullity, thereby ousting the jurisdiction of the trial High Court of the FCT Abuja, in view of the non-advertence by the learned trial Judge, the Hon.

Otaluka, J to the provisions of the Legislative Houses (Powers and Privileges) Act? (Grounds 5 and 6, Amended Notice of Appeal). 5. Whether the Prosecution proved any or all the ingredients of the 3-count charge for which the Appellant stood trial before the High Court of the FCT Abuja beyond reasonable doubt or even at all? In other words, whether the conviction of the Appellant in the circumstances described above is sustainable? (Grounds 7, 8, 9 and 10, Amended Notice of Appeal). 6.

Whether the contradictions, inconsistencies and inadequacies that plagued the evidence of the Prosecution witnesses were of such grave nature as to render the Appellant’s conviction on the 3-count charge unreasonable and unsustainable having occasioned a miscarriage of justice? (Grounds 11, 12 13 and 14 Amended Notice of Appeal). ​A.K.

Alilu, Esq., Assistant Director, Department of Public Prosecutions of the Federation, of learned Counsel to the Respondent distilled six (6) issues for determination to wit; (a) Whether the charge against the Appellant was bad for duplicity. (b) Whether the Appellant was convicted of crimes in a repealed or non-existent legislation. (c) Whether the Appellant, a legislator is a public officer within the ambit of the ICPC Act 2000. (d)The non-advertence by the learned trial Judge, Hon.

Otaluka J. to the provisions of the Legislative Houses (Powers and Privileges) Act- (e) Whether the prosecution proved any or all the ingredients constituting the offences in the 3-count charge against the Appellant. (f) The issue of contradictions and irreconcilables in the prosecution’s case. Both the Appellant and the Respondent have raised very similar issues for determination, this appeal shall be determined based on the six (6) issues raised by the Appellant.

A reflective consideration of all the issues nominated by both sides shows that the issues can be determined together in two groups: Issues 1, 2 and 4 and Issues 3, 5 and 6. ISSUES 1, 2 AND 4 The learned Silk to the Appellant submits that the trial Court was wrong to have convicted the Appellant on a fundamentally defective Charge which is bad for duplicity or ambiguity or misjoinder.

That counts one and two are duplicitous, mutually exclusive, contradictory and humanly impossible because it alleges in one breath that the Appellant ‘corruptly demanded’ the sum of $3,000,000.00 from PW5, Femi Otedola and in another breath alleges that he ‘corruptly agreed to accept’ the same amount from the same PW5. Further submits that the Respondent was unsure or indecisive as to which offence to charge the Appellant with and the Appellant suffered embarrassment, prejudice, deceit and miscarriage of justice as a result, which is inherent and embedded in the Charge Sheet. Cites TAFIDA V.

FRN (2014) 5 NWLR (PT. 1399) 129, OKEKE V. THE STATE (1948) 12 WACA 363, GEORGE V. FRN (2014) 5 NWLR (PT. 1399) 1, UKET V. FRN (2008) ALL FWLR (PT. 411) 923, ONAKOYA V. FRN (2002) 11 (PT. 779) 595 and MUSTAPHA V. FRN (2017) LPELR – 43131 (CA). ​The learned Silk further submits that the trial Court acted in excess of or without jurisdiction because the Appellant was tried and convicted on the repealed and non-existent legislation of the Corrupt Practices and other Related Offences Act, 2000, which had been legislatively supplanted by the Corrupt Practices and other Related Offences Act, 2003.

That a trial conducted without jurisdiction, no matter how conducted is a nullity. Relies on the decisions in Suit No FHC/ABJ/CS/225/2003 between THE AGF V. THE SENATE OF THE FEDERAL REPUBLIC OF NIGERIA, RT. HON. ANYIM PIUS ANYIM PRESIDENT OF THE SENATE, THE HOUSE OF REPRESENTATIVES, ALHAJI UMAR GHALI NA’ ABBA, EYOROKOROMO V. THE STATE (1979) 6/9 SC 3, ADEOYE V. THE STATE (1999) 6 NWLR (PT. 605) 74, FRN V. IFEGWU (2003) 15 NWLR (PT. 842) 113. The learned Silk distinguished the decision of the Apex Court in NWANKWOALA V.

FRN (2018) LPELR-43891 (SC) and the instant appeal in urging the Court to set aside the conviction arising from the Charge. It is the submission of the learned senior Counsel to the Appellant that the instant Charge is a flagrant violation of Sections 20 and 32 of the Legislative Houses (Powers and Privileges) Act respectively because the Appellant who is a Legislator ought to be charged for agreeing to accept or accepting bribe under Section 20 of the said Act and not under the ICPC Act.

Further submits that the Charge was not filed by the Attorney General of the Federation with the specific authorization of the President of the Senate or the Speaker of the House of Representatives as required by Section 32 of the said Act. Relies on MATARI V. DANGALADIMA (1993) 3 NWLR PT. 281 (266), CAC V. GOV. COUNCIL, ITF (2015) 1 NWLR (PT. 1439) 114 and ATTORNEY-GENERAL OF KADUNA STATE V. HASSAN (1985) 2 NWLR (PT. 8) 483 in urging the Court to declare the entire trial a nullity.

Responding, learned Counsel to the Respondent submits that the Charge is not bad for duplicity because each count does not contain more than one offence. That assuming without conceding that the Charge is bad for duplicity, the Appellant has failed to show how he was misled or suffered any miscarriage of justice which is the only ground his conviction can be set aside. Cites FRN V. MUSTAPHA (2017) LPELR, UBOGU V. STATE (2018) LPELR-46392 (CA), OKEKE V. COMMISSIONER OF POLICE (1948) 12 WACA 363 and YAHAYA V.

STATE (2014) LPELR-24083 (CA). ​Further contends that contrary to the submission of the Appellant, ICPC Act, 2000 is still fully in force and was not invalidated by the subsequent ICPC Act, 2003. That assuming without conceding the Appellant is right, the conviction of the Appellant will not be set aside where it is an offence known to law and where there is an existing law under which the Appellant should have been tried unless it is shown that the Appellant suffered a miscarriage of justice as a result. Relies on TEMPLE NWANKWOALA V. FRN (2018) LPELR-43891 (SC), IORHEM V.

STATE (2017) LPELR-43631 (CA) and OKOH V. STATE (2013) LPELR-21009 (CA) in urging the Court to discountenance the issues raised by the Appellant. The learned Counsel to the Respondent maintains that the trial Court is not bound by the Legislative Houses (Powers and Privileges) Act because it was enacted to guide the practice and procedure of the National Assembly and not to be applied by a Court of competent jurisdiction.

That the Appellant cannot be tried under the said Act because it relates to Legislative actions committed within the House and the immunity provided by the said Act is for words spoken or acts done in the Legislative House not a shield for criminal acts committed against the law of the Federal Republic of Nigeria. Cites A.G OGUN STATE V. A.G FEDERATION (1982) LPELR-11 (SC) and LAWAN V. ZENON PETROLEUM & GAS LTD & ORS. (2014) LPELR-23206 (CA) and urges the Court to dismiss the contention of the Appellant.

In its Reply Brief, the Appellant submits that the miscarriage of justice is apparent being multiple punishment for a single course of criminal conduct and the cases cited by the Respondent are distinguishable from the instant case. The Appellant urges the Court to reject the interpretation by the Respondent that Section 20 of the Legislatives Houses (Powers and Privileges) Act, 2004 relates to only words explicitly spoken or done in the legislative house and not a criminal act as same is not rooted in law. That the finding of the Court in LAWAN V.

ZENON PETROLEUM & GAS LTD & ORS. (2014) LPELR-23206 (CA) is not applicable in the instant case. Black’s Law Dictionary, 9th edition defines duplicity thus; “1. Deceitfulness, double-dealing. 2. The charging of the same offence in more than one count of an indictment. 3. The pleading of two or more distinct grounds of complaint or defence for the same issue. In criminal procedure, this takes the form of joining two or more offences in the same count of an indictment. Also termed double pleading.

Alternative pleading under Pleading, (2) double plea under plea (3) Cases: Federal Civil Procedure, Indictment and Information, pleading”. (See page 578). Simply put, duplicity is the joining of two or more distinct offences in the same count of a Charge.

This is in tandem with Section 156 of the Criminal Procedure Act, 1945 which provides thus; “For every distinct offence with which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in Sections 157 to 161 of this Act.” A charge is said to be bad for duplicity where two or more offence are concentrated or included in a Count making it unfair to the trial and defence of an Accused or Defendant in a criminal trial.

However it must be shown that such duplicity is material and has misled the Defendant or that it has led to failure of justice. See OKEKE V. POLICE 12 WACA P. 363 and ONAKOYA V. FRN (2002) LPELR-2670 (SC). There are certain exceptions to the general role against duplicity stated in Section 156 (Supra), they are contained in Sections 157 and 158 of the same Criminal Procedure Act as follows; “157(1).

When a person is accused of more offences than one committed within the period of twelve months from the first to the last of such offences, whether in respect of the same person or thing or not, he may be charged with and tried at one trial for any number of them not exceeding three. 158.

If in one series of acts or omissions so connected together as to form the same transaction or which form or are part of a series of offences of the same or a similar character, more offences than one are committed by the same person, charges for such offences, whether felonies, misdemeanors or simple offences, may be joined and the person accused tried therefor at one trial.” The Charge against the Appellant as contained in pages 1315-1317 of the Records is as follows; “COUNT ONE: That you Hon.

Farouk Lawan (M) while being a member of the House of Representatives and chairman of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime sometimes in April, 2012 or thereabout at Abuja within the Federal Capital Territory under the jurisdiction of this Honourable Court, did, while acting in the course of your official duty corruptly asked for the sum of $3,000,000 (Three Million US Dollars) for yourself from Mr. Femi Otedola. Chairman Zenon Petroleum and Gas Ltd on account of intention to afterwards show favour to the said Mr.

Femi Otedola by removing the name of Zenon Petroleum and Gas Ltd from the Report of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime and you thereby committed an offence contrary to Section 8(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 8(1) of the same Act. COUNT TWO: That you Hon.

Farouk Lawan (M) while being a member of the House of Representatives and chairman of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime sometimes in April, 2012 or thereabout at Abuja within the Federal Capital Territory under the jurisdiction of this Honourable Court; did, while acting in the course of your official duty corruptly agreed to accept the sum of $3,000,000 (Three Million US Dollars) for yourself from Mr.

Femi Otedola, Chairman Zenon Petroleum and Gas Ltd as an inducement to remove the name of Zenon Petroleum and Gas Ltd from the Report of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime and you thereby committed an offence contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act 2000 and punishable under Section 17(1) of the same Act ​COUNT THREE: That you Hon.

Farouk Lawan (M) while being a member of the House of Representatives and chairman of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime sometimes in April, 2012 or thereabout at Abuja within the Federal Capital Territory under the jurisdiction of this Honourable Court, did, while acting in the course of your official duty corruptly obtained the sum of $500,000 (Five Hundred Thousand US Dollars) for yourself from Mr.

Femi Otedola, Chairman Zenon Petroleum and Gas Ltd as an inducement to remove the name of Zenon Petroleum and Gas Ltd from the Report of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime and you thereby committed an offence contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 17(1) of the same Act.” (Emphasis Supplied).

On the face of the Charge Sheet, count one is for the offence of corruptly asking for the sum of $3,000,000, count two is for the offence of corruptly agreeing to accept the sum of $3,000,000 and count three is for corruptly obtaining the sum of $500,000. These are three separate offences provided for in Sections 8(1)(a) and 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000. These offences were brought under three different Counts of the Charge and none of them is a repetition of the other.

For a Charge to be bad for duplicity, it must contain more than one offence in the same Count or a repetition of an offence already stated in another Count. Upon a cursory look at the Charge which has been reproduced above, can it be rightly said that the Charge is bad for duplicity? The response is in the negative and this is because it is abundantly clear that each of the three separate offences are contained in three separate counts. Documents and Statutes that are clear and unambiguous must be given their literal meaning.

Furthermore, in addition, the Appellant must show how the duplicity of the Charge misled him or caused him to suffer a miscarriage of Justice. The Courts have since moved away from the era of technical justice to an era of substantive justice. Reason being that the Court recognizes that we are human and therefore fallible and susceptible to slips and minor errors.

Where such errors do not in any way infringe on the fundamental rights of the Accused Person as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), this Court will not interfere with the decision of the trial Court. I find the dictum of His Lordship, KALGO, J.S.C. in the case of ONAKOYA V. FRN (2002) LPELR-2670 (SC) very instructive on this issue. The appeal was against the decision of the Court of Appeal, Lagos Division which upheld the decision of the Failed Banks Tribunal, Lagos Zone V.

The Accused at the Failed Banks Tribunal, Lagos Zone V, pleaded not guilty to charge of committing a felony by approving and granting credit facility of 14m to one Alhaji Ibrahim, a customer of the Maiduguri Branch of the Savannah Bank of Nigeria PLC without lawful authority and in violation of the lending rules and regulations in force at the time in Savannah Bank particularly Memorandum 119. The Conduct is also an Offence contrary to Section 19(1)(a) (b) & (c) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No.18 of 1994 as amended.

In dismissing the appeal, the Apex Court while affirming the decision of this Court acknowledged that there was procedural irregularity but it did not lead to miscarriage of justice. The Apex Court held thus; “Duplicity is a matter of procedure or form and not evidence. See R. v. Greenfield (1973.) 57 Cr. App, R. 849. It is covered by Section 156 of the Criminal Procedure Act which provides in part: “For every distinct offence with which any person is accused there shall be a separate charge …” It is therefore a matter of procedure and not law. This Court in the case of Nwosu v.

Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 at 717 had this to say:- “As we have stated several times, the days when parties pick their way in this Court through naked technical rules of procedure, the breach of which does not occasion a miscarriage of justice are fast sinking into the limbo of forgotten things. The Court now takes the view that not every slip is fatal to the cause of justice. Judges are not omniscient robots, which never deviate from a programmed course. They sometimes slip.

But only those slips that have been shown to have affected the decision appealed against will amount to a substantial misdirection which will result in the appeal being allowed. See on this Onajobi v. Olanipekun (1985) 11 SC (Pt. 11) 156 at 163; also Jude Ezeoke & Ors. v. Moses Nwagbo & Anor (1988) 1 NWLR (Pt.72) 616 at 626. “ Also, in the case of Obakpolor v.

State (1991) 1 NWLR (Pt.165) 113 in an appeal against the conviction for murder, this Court dealt with the question of the failure of the magistrate who conducted the preliminary inquiry in the case and committed the appellant for trial to comply with Section 314(1) of the C.P.A., and held that even though there was procedural irregularity in not complying with the said Section, there was no miscarriage of justice and the appeal was dismissed. On page 129 of the report, Akpata, J.S.C who wrote the leading judgment said:- “That there was procedural irregularity is not in doubt.

It is however an irregularity which has not led to a miscarriage of justice… it is the paramount duty of Courts to do justice and not cling to technicalities arising from statutory provisions or technicalities inherent in rules of Court.

So long as the law or rule has been substantially complied with and the object of the provisions of the statute or rule is not defeated and failure to comply fully has not occasioned a miscarriage of justice; the proceedings will not be nullified.” (Emphasis Supplied). ​In an attempt to showcase the miscarriage of justice suffered by the Appellant as a result of the defective Charge, the learned senior Counsel to the Appellant submits that the Appellant is being punished repeatedly for the same offence.

This argument is not tenable in the instant appeal where the sentence of the Appellant is to run concurrently. The Appellant must satisfactorily establish that he was misled, embarrassed or prejudiced for the law against duplicity to avail him. A plethora of authorities abound to the effect that the question of duplicity is clearly an error in the process of the case. Such an error is immaterial, unless the accused has been in fact misled by such error or omission and occasioning a miscarriage of justice. See MOHAMMADU V. COP (1969) LPELR-25419 (SC), STATE V.

GWONTO (1983) LPELR-3220 (SC), TAFIDA V. FRN (2013) LPELR-21859 (SC), JIBRIN V. STATE (2021) LPELR-56233 (SC). JOHN V. STATE (2019) LPELR-46936 (SC), OGBOMOR V. STATE (1985) LPELR-2286 (SC), IBRAHIM V. STATE (2017) LPELR-42261(SC) and MAKANJUOLA V.

STATE (2021) LPELR-54998 (SC). ​On the issue of the Appellant being charged and convicted under a repealed or non-existent Legislation, the law is unequivocal that no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission. See Section 166, Criminal Procedure Act. What is most important is whether the Accused Person is charged with an offence known to law.

The law does not allow the Courts to render as incompetent a process filed in due process of law, simply because the wrong law is cited.

Section 36 of the Constitution requires an accused to be charged with an offence known to law. The Apex Court has given a judicial flesh to this provision in the case of TIMOTHY v. FRN (2013) 4 NWLR (Pt. 1344) 213. See also AKALA V. FRN (2014) LPELR-22930 (CA), EGUNJOBI V. FRN (2012) LPELR-15537 (SC), SELE V. STATE (1993) LPELR-3030 (SC) and YABUGBE V. C.O.P (1992) LPELR-3505 (SC). The Appellant sought to distinguish between the decision in NWANKWOALA V.

FRN (2018) LPELR-43891 (SC) where the Apex Court declared the Corrupt Practices and Other Related Offences Act, 2000 as the extant law and Suit No. FHC/ABJ/CS/225/2003 between AGF V. ALH. UMAR GHALI NA’ABBA where the Apex Court ordered a retrial of the suit challenging the Constitutionality of the Corrupt Practices and Other Offences Act, 2003. It is noteworthy that the Appellant has acknowledged that since the Order for retrial by the Apex Court, the suit has not been re-heard or retried. I therefore agree with the Respondent that the Pronouncement of the Apex Court in NWANKWOALA V.

FRN (SUPRA) is the binding law on which of the Corrupt Practices and Other Offences Act is valid and subsisting.

The Apex Court in NWANKWOALA V. FRN (SUPRA) declared and I crave indulgence to quote extensively thus; “…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 18th 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 18th May 2003, that is on 21st 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 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 C31 -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 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.” Per RHODES-VIVOUR, J.S.C. (Emphasis supplied). The above decision of the Apex Court laid to rest any lingering doubt about the status of Corrupt Practices and Other Related Offences Act of 2003. It is not the relevant law. The 2003 ICPC Act had been declared null and void. The publication of an Act in the Statute Book does not confer legitimacy on the Act especially when there is a judicial pronouncement annulling such Legislation. ​The Appellant has been charged under the extant and applicable law for the offences for which he was charged.

The offences alleged against the Appellant were committed in 2012 and he was charged under an existing law prescribing punishment for the offences charged that is Corrupt Practices and Other Related Offences Act, 2000. The argument of learned Senior Counsel trying to sway this Court from the settled position of the Apex Court in the land is hereby rejected in its entirety. This Court is bound by this decision, the Corrupt Practices and Other Related Offences Act, 2000 is valid and subsisting. I shall not further belabor the matter.

The learned Senior Counsel to the Appellant has argued that the Appellant being a Legislator should have been charged under Section 20 of the Legislative Houses (Powers and Privileges) Act. I have gone through the length and breadth of the said Act and I must state categorically that I did not see or come across any rule in the Act that precludes Legislators from being tried under any other law, no rule provides that Legislators must be tried under the Legislative Houses (Powers and Privileges) Act.

Section 3 of the Legislative Houses (Powers and Privileges) Act, 2004 provides that; “No civil or criminal proceedings may be instituted against members of the Legislative House (a) In respect of words spoken before that House or a committee thereof; or (b) In respect of words written in a report to that House or to any committee thereof or in any petition, bill, motion or questions brought or introduced by him therein”. (Emphasis Supplied). Where the language of a statute is clear and explicit, the Court is to give effect to it.

It is clear and explicit from the above provision that immunity only attaches to a member of a Legislative House in respect of words spoken before the House or a committee thereof or in respect to the House or committee thereof or in any petition, bill, resolution, motion or question brought or introduced by him in the House or its committee. See LAWAN V. ZENON PETROLEUM & GAS LTD & ORS. (2014) LPELR-23206 (CA). The Charge against the Appellant cannot be categorized under Section 3 of the Legislative Houses (Powers and Privileges) Act not even by a far and long stretch.

The Appellant has placed reliance on Section 32 of the Legislative Houses (Powers and Privileges) Act, which provides that; “No prosecution shall be instituted for an offence under this Act except by the Attorney-General of the Federation upon information given to him in writing by the President of the Senate or Speaker of the House of Representatives, or by the Attorney-General of a State upon information given to such officer by the Speaker of the Legislative House of a State.” (Emphasis Supplied).

Again, where the language of a statute is clear and explicit, the Court is to give effect to it. It is clear and explicit that the above cited Section 32 relates to where a Legislator is charged for an offence under the Legislative Houses (Powers and Privileges) Act. If it was the intention of the Act to preclude Legislators from being tried under other Laws, the Act would have expressly stated so. On the whole, I find that the Charge against the Appellant is not bad for duplicity and the Appellant was charged under the extant and correct law.

However, assuming these findings are wrong, the Charge against the Appellant cannot be set aside because the Appellant has failed to show this Court how he was misled, embarrassed or prejudiced in the trial due to the alleged defective Charge. I resolve Issues 1, 2 and 4 in favour of the Respondent.

ISSUES 3, 5 AND 6 It is the submission of the Appellant’s learned Senior Counsel that the Appellant is not and cannot be classified as a ‘Public Officer’ and the trial Court failed to take into cognizance jurisprudence from Nigerian superior appellate Courts to the effect that a Legislator in either the Senate, House or Representatives or a State House of Assembly is not a ‘Public Officer.’ That the cases relied upon by the trial Court in concluding that the Appellant is a ‘Public Officer’ are decisions of this Court which dealt with the meaning of ‘Public Officer’ squarely and exclusively within the ambit of the Public Officers Protection Act and not relevant to the conclusion reached by the trial Court.

Further submits that one of the key ingredients common to each of the 3-counts Charge upon which the Appellant stood trial for is that the Appellant must be shown to be a ‘Public Officer’ within the context of Section 2 of the ICPC Act, 2000 and Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), failure of which renders the trial a nullity. That the Appellant can be treated as a Public Officer solely by the Code of Conduct Tribunal by virtue of the Code of Conduct.

Cites Paragraph 19, Parts 1 and 2, 5th Schedule of the 1999 Constitution (as amended), THE GOVERNOR OF PLATEAU STATE & ORS. V. HON. HITLER DADI & ORS (SUPRA), NOLAN V. FRN (2020) LPELR-51424 (CA), COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS & ANOR. V. ONAKADE (2016) LPELR-41133 (CA), SARAKI V. FRN (2016) LPELR-40013 (SC) and AHMED V. AHMED (2013) LPELR-21143 (SC) in urging the Court to quash the decision of the trial Court and hold that Section 2 of the ICPC Act does not apply to the Appellant.

Submits that the Respondent failed woefully to prove any of the ingredients of the 3-count Charge brought against the Appellant and the trial Court was by extension in grave error when the Court held that he was guilty as charged.

That there is no evidence that the Appellant was ever the Chairman of the said Committee, it is common knowledge that the Appellant is not empowered to carry out penal sanctions against PW5 and his company and that the Appellant being a Lawmaker is entitled to lobbying and being lobbied to influence legislative matters, hence the money given to the Appellant cannot be said to be “corruptly received.” Cites GEORGE V. FRN (2014) 5 NWLR (PT. 1399) 1 and RASAKI V. STATE (2011) 16 NWLR (PT. 1273) 251.

That Respondent failed to produce the records of the conversations between the Appellant and PW5 to prove their allegations and that the entire case of the Respondent is riddled with contradictions, inconsistencies and inadequacies especially regarding the sum received that the only logical and legal conclusion that the trial Court could do was make an order discharging and acquitting the Appellant. Cites IJEOMA V. STATE (1990) 6 NWLR (PT. 158) 567, ONUCHUKWU V. THE STATE (1998) 4 SC 49 and SHOLA V.

THE STATE (2020) 8 NWLR (PT. 1727) 530. ​Responding, the learned Counsel to the Respondent states that the Appellant who was elected to represent the Bagwai/Shanono Federal Constituency of Kano State in the House of Representatives engaged in public service and is a Public Officer as categorized under Section 2 of the Corrupt Practices Act. That the Appellant ticked off all the characteristics of being a public officer which are; i. The Appellant holds a public position. ii. The Appellant’s remuneration are from public revenues and the national treasury pool. iii.

The Appellant has a fixed term of office and it has some continuity; standard 4 years and renewable for another 4 years. Relies on Section 18 (1) of Interpretation Act, Section 3, Part 1 of the 5th Schedule of the 1999 Constitution (as amended), Section 318 (1) of the 1999 Constitution (as amended) and ABDULRAUF ABDULKADIR MODIBBO V. MUSTAPHA USMAN & 2 ORS. (2020) 3 NWLR (PT. 1712) 470.

On the issue of establishing the ingredients of the offence, the learned Counsel to the Respondent responds that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt and the Respondent by overwhelming circumstantial evidence has discharged the burden of proving the case beyond reasonable doubt. Cites ANI VS. THE STATE (2009) 6 NWLR (PT. 1168) 443, BILLE V. STATE (2016) LPELR-40832 (SC), EMEKA VS. THE STATE (2001) 14 NWLR (PT. 736) 666 and IGBIKIS V. STATE (2017) LPELR-41667 (SC).

Further responds that the law is settled that where there are mere discrepancies in the narration of events by the Prosecution witnesses as in the instant case, an acquittal will not avail the Accused Person because these mere discrepancies are expected as being natural. Cites OTTI V. THE STATE (1991) 8 NWLR (PT. 207) 103, THEOPHILUS V. STATE (1996) 1 NWLR (PT. 423) 139, AKPA V. STATE (2007) 2 NWLR (PT. 1019) 500 and ADONIKE V. STATE (SC.168/2013) (2015) NGSC 2. The learned Counsel urges the Court to affirm the judgment of the trial Court and dismiss the appeal for lacking in merit.

In its Reply Brief, the learned Senior Counsel to the Appellant states that the decision in ABDULRAUF ABDULKADIR MODIBBO V. MUSTAPHA USMAN & 2 ORS. (SUPRA) being a civil case is not applicable in this case and it was decided without any reference to the ICPC Act in which the Appellant was charged. In its Amended Notice of Appeal, Grounds 3 and 4, the Appellant challenged the specific finding of the trial Court that the Appellant is a Public Officer and therefrom formulated this issue three for determination.

On the question of whether or not the Appellant is a Public Officer, the finding of the trial Court is reproduced anon; “Placing reliance on the above authorities, I therefore discountenance the argument of the learned Senior Advocate for the defence that the Defendant was a mere political office holder. I agree completely with the prosecution that the Defendant was a public officer as contemplated by Section 2 of the ICPC Act and was carrying out his statutory duties as a public officer. I have evaluated the evidence of the contending parties and the submission of the legal luminaries.

Placing reliance on the case of Engr. GFC Ezeani V. Nigeria Railway Corporation (Supra), I hold that the Defendant was a public officer within the definition of the law.” (Emphasis Supplied. See pages 1372 – 1373 of the Records). It is expedient to reproduce and analyze the laws and authorities relied upon by the Parties and the trial Court in the determination of this issue.

Section 318 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) stipulates thus; “Public service of the Federation” means the service of the Federation in any capacity in respect of the Government of the Federation and includes service as: (a) Clerk or other staff of the National Assembly or of each House of the National Assembly;

(b) member of staff of the Supreme Court, the Court of Appeal, the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Customary Court of Appeal of the Federal Capital Territory, Abuja or other Courts established for the Federation by this Constitution and by an Act of National Assembly; (c) member or staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly; (d) staff of any area council;

(e) staff of any statutory corporation established by an Act of the National Assembly; (f) staff of any educational institution established or financed principally by a Government of the Federation; (g) staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interest; and (h) members or officers of the armed forces of the Federation or the Nigeria Police Force or other government security agencies established by law.

“(Emphasis supplied). ​From the foregoing, it is true that Section 318 (1) of the 1999 Constitution (as amended) does not define the term “Public Officer” but defined the term public service. Nonetheless, recourse can be made to other parts of the Constitution, other Statutes and case law where the definition of the “Public Officer” was provided.

The Interpretation Act Cap 149 LFN, 1990 defines a Public Officer thus: “A Public Office holder is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public.” (Emphasis Supplied).

Section 2 of the Corrupt Practices and Other Related Offences Act, 2000 defines Public Officer thus; “Public Officer means person employed or engaged in any capacity in the public service of the Federation, State or Local Government, Public Corporations or Private Company wholly or jointly floated by any government or its agency, including the subsidiary of any such company whether located within or outside Nigeria, and includes judicial officers serving in Magistrates, Area or Customary Courts or Tribunals. “(Emphasis Supplied).

In the interpretation or construction of the provisions of the Constitution or a Statute, the Court or Tribunal must adhere to an interpretation that will bring out plainly the real intention of the framers of the Constitution or the law maker in order to meet the obvious end of the Constitution or the law the Court is called upon to interpret. Also, the Court must desist from construing the relevant provisions of the Constitution or the law in a manner that will do violence to the ultimate design or purpose of the law or the Constitution.

The provisions of the Constitution and a Statute must be considered and construed as a whole. See OCHOLI ENOJO JAMES, SAN V. INEC & ORS. (2015) 12 NWLR (PT. 1474) 538. PRINCE MUSAFAU OMOWALE ADEMOLA KASSIM V. PRINCE ADEBOLA ADESEMOWO & ORS. (2021) 18 NWLR (PT. 1807) 67 and MR SIMACH COLLIN V. DHL INTERNATIONAL NIGERIA LTD. (2022) 2 NWLR (PT. 1813) 87.

The trial Court in finding that the Appellant is a Public Officer relied on the above cited laws and the decision of this Court in the case of EZEANI V. NRC (2013) LPELR – 22065 (CA) anon; “The Public Officers (Protection) Act is definitely in this case because the Employees of the Nigerian Railway Corporation are “public Officers”. It is true that the term has not been defined under the Public Officers’ Protection Act. But Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 defines “Public Service of the Federation ” and “Public Service of the State”.

By virtue of Part 1 of the Fifth Schedule – Paragraph 19 of the Constitution of the Federal Republic of Nigeria 1999, a Public Officer is defined as a person holding any office as specified in Part II of that Schedule. It refers to “other persons in the public service. “Per PEMU, JCA. Similarly, the trial Court relied on this Court’s decision in NAHUCHE V. NAHUCHE & ANOR (2016) LPELR-41809(CA) thus; “In the case of CHIEF JOHN EZE v. DR. COSMAS I.

OKECHUKWU (1998) (Pt. 548) 43 AT 73 the Court was of the view that a “Public Officer” is a holder of a public office in the public sector of the economy as distinct and separate from the private sector that he is entitled to some remuneration from the public revenue or treasury.

In addition that he has some authority conferred on him by law, with a fixed tenure of office that must have some permanency or continuity; above all else that a public officer has the power to exercise some amount of sovereign authority or function of government.” (Emphasis Supplied) Per OHO, JCA. ​The Appellant in this appeal relied on the decisions of this Court in the case of COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS & ANOR VS. ONAKADE (2016) LPELR 41133 (CA) and NOLAN V. FRN (2020) LPELR-51424 (CA) amongst others in submitting that the Appellant is not a Public Officer.

The Respondent cited the decision of the Apex Court in the case of MODIBBO V. USMAN (2020) 3 NWLR (PT. 1712) 470 in submitting to the contrary that the Appellant is a Public Officer. The relevant portion of the decision goes thus; “…It is without dispute that the appellant has been a beneficiary of the Federal Government NYSC Allowance or salary as at the time he contested.

Partisan political involvement and participation even to the level of occupying a political seat is forbidden and prohibited by the law because every political position is a position of utmost trust and confidence and the sole business and allegiance of a politician is to the people who voted him into power and whom he represents and that does not admit of jack of all trades but master of none. The politician is expected to concentrate fully in his political activities and functions and in this case, a very crucial function of law making.

It is in this contemplation that many other services to the Federal Government do not admit or allow participation into politics or other engagements during the pendency of that service. To be a Corps member and a law maker at the same time cannot be allowed.

Thus, the Constitution came to give a guideline as follows in Section 66 (1) (f) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended): “No person shall be qualified for election to the Senate or the House of Representatives if he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment thirty days before the date of election.” …In Chief John Eze v. Dr. Cosmos I. Okechukwu (1998) 5 NWLR (Pt. 548) 43 at 73, the Court opined that, “A public officer, in my view is a holder of a public office.

He is in the public sector of the economy as distinct and separate from the private sector. He is entitled to some renumeration from the public revenue or treasury. He has some authority conferred on him by law. He also has permanency or continuity. Above all, a public officer has the power to exercise some amount of sovereign authority or function of government. The sovereign authority may be great or enormous. It may be little or small. There should be that element of sovereign authority. So too the exercise of government function in lieu of sovereign authority.

There should be that element of government function. All the above characteristics must be present to vest in a person the status of a Public Officer.” (Emphasis Supplied) Per ABBA AJI, J.S.C. By virtue of the doctrine of stare decisis and judicial precedent, this Court is bound by the decision of the Apex Court Supra. Legislative Office Holders fit in the characteristics of a Public Officer listed above.

Furthermore, by virtue of Section 66 (1) (f) of the 1999 Constitution, any person that intends to run for a seat in the Senate or the House of Representatives must first resign, withdraw or retire from public service because it is considered as receiving double salary from the Public Treasury. In the case of OBA J. A. AWOLOLA VS THE GOVERNOR OF EKITI STATE & ORS (2019) 6 NWLR (PART 1668) 247, the Apex Court held thus; “The appellant has failed to appeal against that portion of that judgment. The law is settled that a finding of a Court against which there is no appeal is treated as admitted.

See Odedo v. INEC (2008) 17 NWLR (Pt. 1117) 554 at B-C; Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53 at 83 paras. E-F; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt 110) 417; Okuoja v. Ishola (1982) 7 SC 314; Awote v. Owodunni (No. 1) (1986) 5 NWLR (Pt. 46) 941; Atoyebi v. Gov., Oyo State (1994) 5 NWLR (Pt. 344) 290. Even if there is an appeal against the decision that the respondents are public officers, there would have been no merit in such appeal.

The Black’s Law Dictionary, 9th Edition at page 1351 defines public office as a position whose occupant has legal authority to exercise a government sovereign power for a fixed period. An officer is defined by the same dictionary 38 at page 1193 as follows:- “A person who holds an office of trust, authority or command. In public affairs, the term refers especially to a person holding public office under a national, state, or local government and authorized by that government to exercise some specific function.” Per GALUMJE, J.S.C. (Emphasis supplied).

There is no doubt that the National Assembly of Nigeria which consists of the Senate and House of Representatives is an arm of Government of the Federation and all members of the National Assembly like the Executive and the Judicial Arm of Government are all engaged in the public service of the Federation. The institution to which the Appellant was engaged as a Legislator is the National Assembly an Arm of the Government of Nigeria. He is therefore a Public Officer notwithstanding that he is Legislator.

It cannot be the intention of the lawmaker to exclude Legislators from the ambit of ICPC Act as they too are involved in governance as Members of the National Assembly whose duty is to make laws and perform oversight functions over Government Affairs and Department pursuant to Sections 4, 88 and 89 of the 1999 Constitution (as amended). ​Now that all the issues on technicalities in this appeal have been determined, it is time to deal with the germane issue in this appeal which is whether the Respondent proved its case against the Appellant beyond reasonable doubt.

For the Prosecution to succeed in its case and to ground a conviction against an Accused Person, it must prove its case beyond reasonable doubt. See Section 135 of the Evidence Act, 2011, OGUNDIYAN V. THE STATE (1991) LPELR-2333 (SC). NKWUDA EDAMINE V. THE STATE (1996) LPELR-1002 (SC), MORUFU BOLANLE V. THE STATE (2009) LPELR-788 (SC) and THE STATE V. FEMI OLADOTUN (2011) LPELR-3226 (SC). With the standard of proof pegged beyond reasonable doubt, where any doubt exists it must be resolved in favour of the Accused Person.

This is because it is not required of the Accused Person to prove his innocence but it is required of the Prosecution to prove the guilt of the Accused Person in order to secure a conviction. This is in consonance with the provision of Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) where the Accused Person is considered innocent until proven guilty. Where there is any doubt at all, this doubt must be resolved in favour of the Accused Person. This is the decision of the Apex Court in a plethora of cases. See AFOLALU V.

THE STATE (2010) 16 NWLR (Pt. 1220) 584, OKPUTUOBIODE & ORS. V. THE STATE (1970) LPELR-2524 (SC), JOHN OKONJI V. THE STATE (1987) LPELR-2479 (SC), THE STATE V. IDAPU EMINE & ORS. (1992) LPELR-3218 (SC). To prove the Charge against a Defendant, the Prosecution can rely on any or all of the following methods viz:- (a) Evidence of eye witness or witnesses; or (b) Confessional statement of the accused/Defendant; or (c) Through circumstantial evidence. See SHUAIBU ABDU V. THE STATE (2017) 7 NWLR (PT. 1564) 171. AKEEM AFOLABI V. THE STATE (2022) 2 NWLR (PT. 1814) 201, UDO V.

STATE (2016) LPELR-40721 (SC), (2016) 12 NWLR (PT. 1525) 1. ABOKOKUYANRO V. STATE (2016) LPELR–40107(SC), (2016) 9 NWLR (PT. 1518) 520, DANBABA V. STATE (2018) LPELR-43841 (SC), (2018) 11 NWLR (PT. 1631) 426 and ABDU V. STATE (2016) LPELR-41461 (SC), (2017) 7 NWLR (PT. 1564) 171. It is pertinent to state the ingredients of the offence of corruptly asking for, agreeing to accept and accepting gratification which the Prosecution is expected to prove beyond reasonable doubt against the Appellant as Accused Person at the trial. In the case of TEMPLE NWANKWOALA V.

FRN (SUPRA), the Apex Court enumerated the ingredients for the offence under Sections 8(1)(a), 17(1) and 17(1)(a) of the Corrupt Practices and Other Related Offences Act, thus;

“…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. (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).” Per RHODES-VIVOUR, J.S.C. (Emphasis Supplied). ​By the amended charge contained on page 382 of the records, the Appellant was charged in Count 1 for corruptly asking for the sum of $3,000,000 for himself from Mr.

Femi Otedola on account of intention to afterwards show favour to the said Mr. Femi Otedola by removing the name of Zenon Petroleum and Gas Ltd from the Report of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime in the course of his official duty as the Chairman of the House of Representatives Ad-Hoc Committee on the Monitoring Committee on Fuel Subsidy sometimes in April 2012.

Also, the charge against the Appellant is that while acting in the course of his official duty, did corruptly agree to accept the sum of $3,000,000 (Three Million US Dollars) an inducement to remove Mr. Femi Otedola’s company from the list of companies indicted by the Committee charged by the Appellant in respect of fuel subsidy regime. The persons that gave evidence in respect of the said dollars are PW2 and PW5 (the nominal complainant). PW2 as at the time he testified was a Commissioner of Police and the Investigation Police Officer in the case against the Appellant.

He testified that PW5 had informed him that the Appellant on or about 19th May, 2012 called him (PW5) on phone that his two companies Zenon Oil and A. P. Petroleum have been indicted by the Appellant’s Committee and that the Appellant demanded the sum of $3,000,000 from Mr. Femi Otedola to enable him remove the name of Zenon Oil and A.P Petroleum from the list of indicted companies. That PW5 also wrote to DSS Director and PW5 was asked to play along with the Appellant.

See pages 975-992 of the Records. ​Under cross-examination, PW2 remained evasive throughout pertaining to the issue of telephone allegedly made by the Appellant to Mr. Femi Otedola demanding $3,000,000. The call logs of the said telephone numbers of and the conversation between the Appellant were not produced.

PW2 and his team did not also find it necessary to ask for the telephone of PW5 (nominal complainant) and his call logs from the service provider to establish that the Appellant actually called the PW5 demanding for the sum of $3,000,000 to enable him remove the names of PW5’s Companies from the list of companies indicted in respect of House of Representatives probe concerning fuel subsidy regime. The Prosecution’s energy and investigation as could be seen in the evidence of PW2 were concentrated on the receipt of $500,000.

PW2 categorically stated on, in answer to whether the case against the Appellant was properly investigated thus; “This matter as it relates to demanding and receiving the sum of $500,000 Dollars to the best of my knowledge was properly investigated and was caught on video.” (See page 1015 of the Records) There is no scintilla of evidence from the only Investigating Police (PW2) called by the Respondent establishing or proving that the Appellant in the course of his official duty corruptly asked for the sum of $3,000,000 from PW5.

There is also no evidence from any of the five witnesses called by the Respondent establishing beyond doubt that the Appellant ‘corruptly agreed to accept the sum of $3,000,000 from Mr. Femi Otedola (PW5).

Even though the PW2 earlier testified that the alleged $3,000,000 was to remove two companies namely Zenon Oil and A.P Petroleum, PW2 admitted that he was aware AP Petroleum was not cleared by the House of Representatives (See page 1054 of the Records). ​Now, coming to the evidence of PW5 with respect to the alleged demand by Appellant for the sum of $3,000,000 for which the Appellant was charged in Counts 1 and 2, PW5 said he had known the Appellant for six years and as the Chairman of Committee of House of Representatives in Investigation on the then fuel subsidy scam.

He stated that A.P Petroleum Plc and Zenon Petroleum are his companies. (See page 1159 of the Records). PW5 further stated that Appellant called him after their report has been laid before the House of Representatives that PW5 should make available the $3,000,000. That PW5 later on 24/4/2012, handed over the sum of $500,000 given to him by DSS to the Appellant between 12 midnight and 1 am.

PW5 said that after his company’s name was removed from list of indicted companies, the Defendant called him demanding for the balance of $2.500,000 and that he told him the balance was being arranged and would be brought to Abuja. (See page 1159-1167 of the Records). There is no convincing evidence to establish Count 1 of the Charge from the witnesses called by the Respondent.

The import of Count 2 is that the Appellant was offered $3,000,000 and he corruptly agreed to accept same. ​The evidence of PW5 to the effect that he did not offer $3,000,000 to the Appellant on its own clearly disproves the allegation contained in Count 2 of the Charge. Specifically under Examination-in-Chief, PW5 stated; “Prosecution: He said that you were the one who offered to pay $3 million so that your company’s name will be removed from the indicted list.

PW5: I did not offer him $3 million for the fact that I was one of the biggest players in the business and reported the matter when I discovered the scam and he did mention to me that several companies that got involved with the scam got paying. I reported to DSS.” ​The evidence of PW5 is that while he was in London, the Appellant called him demanding for $3,000,000. The Appellant gave to the Investigating Police Officer, PW2 all the telephone numbers by which PW5 and he were allegedly calling each other.

The numbers are even contained in the statement of the Appellant tendered by PW2, yet the Respondent did not find it necessary to investigate the phone call to confirm the authenticity of PW5’s allegation that Appellant sought for $3,000,000 on phone calls he made to him while in London and while in Lagos. There is a big lacuna in the Respondent’s case in respect of all the allegations contained in Counts 1 and 2 of Charge which ought to be resolved in favour of the Appellant.

I agree with the learned Senior Counsel to the Appellant that Counts 1 and 2 of the Charge against the Appellant were not proved beyond reasonable doubt because the ingredients of the offence and the particulars were neither proved nor established. There is no compelling evidence against the Appellant in respect of the allegations contained in Counts 1 and 2 of the Charge to warrant his conviction and sentence. Now coming to Count 3 of the Charge which accused the Appellant of corruptly obtaining $500,000 (Five Hundred Thousand US Dollars) from Mr.

Femi Otedola, Chairman Zenon Petroleum and Gas Ltd as an inducement to remove the name of the said company from list of indicted companies on oil subsidy scam in the course of Appellant’s official duty’, the Respondent called PW1, PW2, PW3, PW4 and PW5. PW1 gave evidence of how PW5 gave him $100,000 dollars which he handed over to the Appellant. PW5 also gave evidence of how he gave $250,000 to the Appellant on two occasions for the corrupt venture.

The evidence of PW2 established that the Appellant collected the said $500,000 and the Appellant in furtherance of the inducement ensured that the name of Zenon Petroleum and Gas Ltd was removed from the Report of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime.

The Respondent actually proved the offence for which the Appellant was charged in Count 3 of the Charge beyond reasonable doubt, thereby shifting evidential onus on the Appellant to prove reasonable doubt in accordance with Section 135(3) of the Evidence Act which provides thus: “135(3) If the prosecution proves the commission of a crime beyond reasonable doubt the burden of proving reasonable doubt is shifted on to the defendant.” ​The Appellant rather than give evidence exculpating himself from the shackles of Count 3 of the Charge against him, admitted in writing that he did not report any attempt to bribe him or his Committee to the Police or any of the Security Agencies.

By Exhibit PW1C, he gave undertaking to refund the sum of $600,000 dollars received from PW5. He made a statement against PW4 to the effect that he gave the money to PW4, JAGABA ADAMS JAGABA to keep so that he could later collect same and make a formal report to Security Agents. PW4 made a statement completely denying what the Appellant said. PW4 stated he was not a Member of Appellant’s Committee and he did not receive nor collect any money from the Appellant. The PW2 found out that Appellant lied when he said he gave the money ($500,000) to PW4 with a memo.

There was no such memo and no money was given to PW4. The Appellant did not refund the money according to the unchallenged evidence of PW2 in respect of the sum of $500,000 collected by the Appellant from PW5. The Appellant contends that the testimony of the witnesses for the Respondent are wrought with inconsistencies and the trial Court ought not to accord any probative value to their evidence. It is true that it is not every inconsistency in testimony that is fatal to the case of the Prosecution.

There exists a long list of judicial authorities to the effect that it is not every discrepancy that would be fatal to the case of the Prosecution or be sufficient enough to raise doubts which must be resolved in favour of the Accused Person. I call in aid the decision of the Apex Court in DIBIE V. STATE (2007) LPELR – 941 (SC) thus; “It is necessary to say that for a contradiction to be regarded as material, it must go to the root of the charge before the Court. It must be one that touches an important element of what the prosecution needs to prove in the case.

Contradictions that are outside the aforementioned class are usually expected in an unconnected evidence in every trial since human memories do not have equal capacities of storing and retrieving events that happened. There is therefore bound to be minor discrepancies in an account of the same event in the evidence of same event given by different eye-witnesses. Such could only not exist where such witnesses are schooled as to what to say.

The alleged discrepancies in the instant case are immaterial and do not and could not impeach the verdict of the trial Tribunal.” Per AKINTAN, J.S.C. (Emphasis Supplied). See also the decision in the unreported case of MUHAMMAD SANI AUDU V. THE STATE. APPEAL NO: CA/A/428C/2018 delivered per DONGBAN-MENSEM, JCA (AHTW) on 21/05/2020 at the Abuja Division of this Court. ​I agree with the finding of the trial Court on the inconsistencies in the testimonies of PW1 and PW5 that these inconsistencies do not touch on the heart and soul of the matter.

The inconsistency in the testimony of PW1 is irrelevant to the extent that the case against the Appellant is not on the sum given to PW1 (whether $100 or $120), the case is for the sum of $500,000. Hence, the issue of the amount given to PW1 is not the contention in this appeal. Furthermore, the inconsistency in the testimony of PW5 as to how much the PW5 gave to the Appellant at each visit is also irrelevant. This is because it has already been established and even acknowledged by the Appellant himself that he received $500,000 from PW5.

Whether this sum was given in two tranches of $250,000 each is completely irrelevant. These inconsistencies are not in any way fatal to the case of the Respondent. More importantly, the admission by the Appellant that he received the $500,000 in two tranches is sufficient enough to establish the case against him as contained in Count 3 of the Charge.

Black’s Law Dictionary, 6th Edition, 1990, page 47 defines an admission thus; “A concession or voluntary acknowledgment made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action.” An admission by a party is the best form of evidence, this is because the opposing party need not prove the admitted facts.

The position of the law is that facts admitted require no further evidential proof. Thus, a Court is entitled to give judgment based on an admission by a party if the admission is relevant to the facts in issue. I am fortified by the decision of the Apex Court in the case OFFOR & ANOR. V. STATE (2012) LPELR-19658 (SC) where the Appellants pleaded guilty to the offence of Armed Robbery. The Appellants were found guilty and convicted based on their guilty plea and acknowledgment of the facts as narrated by the Prosecution.

Dismissing the appeal for lack of merits, the Apex Court held thus; “From the entire trial and procedure of the proceedings conducted at the trial Court and which was approved by the lower Court, it is apparent that the nature of such is governed by the principle of admissibility. In other words, with the appellants having pleaded guilty, they are in law deemed to have admitted the offences with which they have been charged. The law is well settled that facts admitted need no further proof. The offences for which appellants were charged are not punishable with death.

The phrase exempting admission of death sentence as provided under Section 187(2) of the Criminal Procedure Code is therefore not applicable. Earlier in the course of this judgment. I have also held that the procedure adopted by trial Court falls within the provision of Section 187(1) and (2) of Criminal Procedure Code as rightly arrived at by the lower Court in affirming the conclusion reached by the learned trial Judge.

The appellants unequivocally and unambiguously admitted committing the offences for which they were charged, hence at that stage the calling of evidence to establish the offence became unnecessary. The appellants have confirmed the obvious by their pleas of guilty or admission.

The leading authority of the case in Nwachukwu v State (supra) is again in the affirmative at page 69 as follows:- “In other words, the law is clear that a free and voluntary confession of guilt, whether judicial or extra judicial, if it is direct and positive and clearly established is sufficient proof of guilt and it is enough to sustain a conviction so long as the Court is satisfied with the truth of the confession.” In the circumstances, I hold that the appellants’ Counsel are hinging their submissions on technicalities which the law does not recognize as a replacement of substantial justice.

The justice of the case in this appeal had been invoked by the lower Court in affirming the conviction by the trial Court. The appellants’ Counsel have totally misapprehend the interpretation of the two Sections 161(3) and 187(1) and (2) of the Criminal Procedure Code. Their submission is only a ploy and an afterthought.” Per OGUNBIYI, J.S.C. (Emphasis supplied). See also AJIBADE V. STATE (2012) LPELR-15531(SC), NIGERIAN ADVERTISING SERVICES LTD ANOR V. UBA PLC & ANOR. (2005) LPELR-2009(SC), BAJODEN V. IROMWANIMU (1995) 7 NWLR (PT. 410) 655. OBMIAMI BRICK & STONE NIG. LTD. V.

A.C.B LTD. (1992) 3 NWLR (PT. 229) 260, and OLAGUNYI V. OYENIRAN (1996) 6 NWLR (PT. 453) The admission of the Appellant to the effect that he collected $500,000 is a direct admission and acknowledgment of all the ingredients of the offence and particulars contained in count 3 of the Charge. No corroboration is needed.

The Appellant admitted in both his extra-judicial statement (Exhibit G1-G3) and testimony in Court (Pages 1153 & 1155 of the Records) that he accepted the $500,000 from PW5 to serve as evidence that PW5 tried to bribe the Appellant. The fact that Appellant collected $500,000 from PW5 is corroborated by the testimonies of the Prosecution Witnesses and the video evidence (Exhibit PW3B). However, the submission by the Appellant that he received the said sum as evidence of an attempt to bribe him by PW5 remains uncorroborated. The Appellant claimed he reported the incident to Hon.

Jagaba (PW4 at pages 1120-1125 of the Records) who has denied any knowledge of the claim. It is curious that Appellant who wanted to use the money as evidence of bribe failed, refused or neglected to report the matter to the appropriate authorities.

This line of defence is clearly an afterthought by the Appellant who would grab unto just about anything to save himself from drowning. ​The Appellant himself testified at page 1256 of the Records and in his extra-judicial statement (Exhibit G1-G3) that he moved the motion and made the recommendation to the House not to indict Zenon Oil (Exhibit PW1B6). This testimony was corroborated by the testimonies of PW4 (Pages 1139-1142 of the Records).

The said motion was moved on the floor of the House on 24/04/2012 right after the Appellant had received a total sum of $500,000 from PW5 in the early hours of the same 24/04/2012. These pieces of evidence and the conversation from the DVD Recording (Exhibit PWB3) are circumstantial evidence that the Appellant received money from PW5 to remove the name of PW5’s company, Zenon Oil from the list of indicted Companies. The trial Court was perfectly right and correct in convicting Appellant on Count 3 of the Charge. See the cases of JAMES OBI ACHABUA V.

THE SATE (1976) LPELR-63 (SC) and LEKAN OLAOYE V. THE STATE (2018) 8 NWLR (PT. 1621) 281. Issue 5 is resolved in favour of the Appellant ONLY in respect of Counts 1 and 2 of the Charge and NOT in respect of Count 3 which I have adjudged as having been proved by the Respondent beyond reasonable doubt. Issues 3 and 6 is resolved against the Appellant. ​The Appellant’s appeal succeeds in part only in respect of Counts 1 and 2 of the Charge against the Appellant and it is allowed. The Appellant is hereby discharged and acquitted ONLY in respect of Counts 1 and 2 of the three Count Charge.

In respect of Count 3, the Appellant’s appeal fails and it is dismissed. Consequently, the conviction of the Appellant in respect of the 3rd Count of the Charge to which the Appellant was found guilty under Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000 is hereby affirmed. The sentence to five (5) years imprisonment is also hereby affirmed.

PETER OLABISI IGE, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my Noble Lord, the Honourable President of the Court of Appeal. I entirely agree with the erudite reasoning and conclusion reached in the leading judgment. The Appellant’s learned senior Counsel had contended under issue 1 that the 1st and 2nd Counts of the three Count charge against the Appellant are bad for duplicity.

A charge is said to be bad for duplicity where a count in a charge or an information or indictment against an Accused or Defendant contains two or more offences that are lumped together. I call in aid the BLACK’S LAW DICTIONARY 11th Edition page 635 where the word duplicity is variously defined thus: “1. Dishonest behavior that is designed to deceive someone; deceitfulness; doubt-dealing; 2. The charging of the same offence in more than one Court of an indictment. 3.

The pleading of two or more distinct grounds of complaint or Defence for the same issue.” I have read Counts 1 and 2 very calmly and I am of the solemn opinion that if the said Counts 1 and 2 are juxtaposed with the Independent Corrupt Practices and Other Related Offences Act 2000, there is no duplicity.

The offence charged in Count 1 is covered by Section 8(1)(a) of the said Act while the offence charged in Count 2 is provided for in Section 17(1)(a) of the aforesaid Act. ​The question to be asked is: Even if (which is not conceded) there is duplicity, has the Appellant established any miscarriage of justice or that he was misled by Counts 1 and 2 on account of duplicity. The Appellant failed to point to any miscarriage of justice or embarrassment he had suffered thereby.

The Appellant duly pleaded to each of the three Counts charge at the lower Court after the charge containing three Counts had been read and explained to him. Neither he nor his Learned Counsel objected to any of the Counts contained in the said charge. The rule against duplicity was not breached by the Respondent in this case. The complaint of the Appellant is clearly unfounded.

The Appellant complaint under issues 2 and 3 borders on the jurisdiction of the lower Court to entertain the charge against the Appellant on the grounds that he was charged under a repealed or non-existent law and that he is not a public officer. ​Just as the pleadings of the parties in action commenced by writ of summons or Affidavit in support in an action begun by originating Summons determines the jurisdiction of a Court seised of the matter, the jurisdiction of a Court or Tribunal in Criminal Proceedings will be determined by the charge laid against a Defendant or Accused in the Criminal proceedings.

Any fundamental defect in a cause or matter will lead to the incompetence of a Court and it will render the proceedings conducted by such Court a nullity. It is not the transaction forming or culminating in the charge that the Court will be concerned with but whether the Court has jurisdiction to try the offences constituting the charge laid against the Defendant or an Accused person. See: 1. A. F. OSARENREN VS. FRN (2018) 10 NWLR (PART 1627) 221 at 321 G-H per EKO, JSC. 2. OCHONOGOR ALEX VS. FRN (2018) 7 NWLR (PART 1618) 228 at 239 A-C per NWEZE, JSC. 3. ADAOHA UGO-NGADI VS.

FRN (2018) 8 NWLR (PART 1620) 20 at 58 H per PETER-ODILI, JSC who said: “In determining the Court with the requisite jurisdiction to entertain a criminal matter the Court would always consider the nature of the charge rather than the transaction forming the subject matter of the charge or the documents attached as proof of evidence.” 1. FRN VS OKEY NWOSU (2016) 17 NWLR (PART 1541) 226 at 290 A-B per M. D MUHAMMAD, JSC who said: “It has long been settled that in determining whether or not it has jurisdiction to try an offence, the Court will consider the charge vis-a-vis the enabling law.

See Onwudiwe V. FRN (2006) 16 NWLR (PT. 988) 382.” ​The law is settled that a Defendant charged or arraigned on criminal case before a Court of competent jurisdiction cannot have the case or charge against him quashed or dismissed on the ground that arraignment was done under a wrong law or a repealed law where there is in existence a legislation criminalizing or prohibiting the acts or offences for which the Defendant is charged or he is standing trial. See; IKECHUKWU IKPA V.

THE STATE (2018) 4 NWLR (PART 1609) 175 AT 204 E TO G per AUGIE, JSC who said:- “There is also nothing to indicate that Appellant was misled by the non-inclusion of the said definition section in the charge. As the Court of Appeal rightly observed, the said charge stated the specific name of the offence committed and the written law, therefore, the Appellant had sufficient notice of what he was up against when he pleaded not guilty to the charge read to him. The important question is whether the Appellant was misled by the error or defect in the charge – Ogbomor v. State (supra).

The Appellant was charged with an offence known to law and he was represented by Counsel from plea to judgment stage, and since there is no evidence that the Appellant was misled, no miscarriage of justice occurred and the conviction is right. The said issue 1 is, therefore. resolved against the Appellant. “ The avalanche of decisions by the apex Court cited in the lead judgment points irresistibly to the salient fact that the ICPC Act 2000 remains the relevant and extant law under which the Appellant was arraigned on the three Count charge.

As to whether Appellant is a Public Officer my answer is in the affirmative. The offences for which he was charged at the lower Court were allegedly committed while performing public duties or functions as the Chairman of Ad-hoc Committee on Monitoring of Fuel Subsidy Regime sometimes in 2012. He was engaged as Legislator to perform public duty in the affairs or business of the Federation as a member of the House of Representatives of the National Assembly, an arm of the Government of the Federation. He acted and performed his duties as Chairman in the said Committee in official capacity.

He was a Public Officer at the time material to the commission of the offences for which he was charged.

On whether he ought to be charged under Section 20 of the Legislative Houses (Powers and Privileges) Act, my position is that the Appellant cannot dictate to the prosecutor under which law he should have been charged. The offences for which he was charged are known to law under the ICPC Act 2000. The fact remains that ICPC Act 2000 was enacted by the National Assembly criminalizing or prohibiting the acts or offences for which the Appellant was charged. The ICP Act 2000 remains the extant and relevant law in respect of the charge against the Appellant. See ISIAKA MUMINI VS.

FRN (2018) 11 SCM 127 at 137-138 A-B per EKO, JSC who said: “I think it has to be borne in mind that the choice of the charge to prefer against the accused person on a given set of facts is the prerogative of the prosecutor. Neither the Court nor the accused person can interfere with the prerogative of the prosecutor in this regard. From a line of cases, including Yongo v. Commissioner of Police (1992) 8 NWLR (Pt. 257) 36: Alake v. The State (1992) 9 NWLR (Pt. 265) 260: Chima Ijioffor v.

The State (2001) 4 SC (pt. 11) 1; (2001) NWLR (Pt. 718) 371, the Courts recognize and respect this prerogative of the prosecutor to prefer any charge from the facts at his disposal. Thus as Achike, JSC, Stated in IJIOFFOR v. THE STATE (supra) the prosecutor’s – Prosecutorial responsibility is to establish his case beyond reasonable doubt in order to secure the conviction of the accused person. How he gets about discharging this is entirely his business.

Under no circumstance will the accused person dictate to the prosecution what charge shall be preferred or what witness(es) shall be fielded against him in discharge of the prosecutor’s prosecutorial responsibilities.” It is for the above reasons and the fuller reasons painstakingly and admirably articulated in the lead judgment that I agree in toto with the leading judgment. I also agree that the Appellant’s appeal in respect of Count 3 should be dismissed and I too allow the Appellant’s appeal ONLY in respect of Courts 1 and 2 contained in the Count charge.

I too hereby dismiss the Appellant’s appeal in respect of Count 3 contained in the charge against him. I abide by all the consequential Orders contained in the leading judgment of my Noble Lord, the Honourable President of the Court of Appeal.

MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading before now, the lead judgment just delivered by my learned brother, MONICA BOLNA’AN DONGBAN-MENSEM PCA; I am in total agreement with the decision, and the conclusion reached, and adopt them as mine.

I will only add for emphasis, especially, that Section 318 (1) of the Constitution does not define “public officer”; be that as it may, the Interpretation Act defined “public officer” to mean: “…an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of the fund provided by the public.” The need for clarity with regard to the definition of a public officer is necessitated by the Appellant’s challenge of the findings of the trial Court with regard to whether the Appellant is indeed a public officer as found by the trial Court.

Section 2 of the Corrupt Practices and other Related Offences Act, 2000 on its part defines public officer as: “…person employed or engaged in any capacity in the public service of the federation, state or local government, public corporations or private company wholly or jointly floated by any government or its agency, including the subsidiary of any such company whether located in magistrates, area or customary Courts or Tribunals.” Now having said that, it is always very important to construe statutes in such a manner as to bring out their plain meanings, for no other reason than the need to portray the clear intentions of the framers of the law, that way, the purpose of the law is laid bare.

This is borne out by several decisions, chief amongst which is MR SIMACH COLLIN V DHL INTERNATIONAL NIG LTD (2022) 2 NWLR part 1813 page 87, PRINCE MUSAFAU OMOWALE ADEMOLA KASSIM V PRINCE ADESEMOWO & ORS (2021) 18 NWLR part 1807 page 87 and EZEANI V NRC (2013) LPELR-22065-CA as well as NAHUCHE V NAHUCHE & ANR (2016) LPELR-41809 on the basis of which the trial Court came to the conclusion that the Appellant is a public officer.

It is not disputed that the Appellant at the relevant time was a member of the House of Representatives, entitled by virtue of that to salaries and allowances, thus perfectly fitting the description of a public officer; Section 66 (1) (f) of the Constitution in unequivocal terms throws its weight behind that by stating that: “no person shall be qualified for election to the senate or House of Representatives if he is a persons employed in the public service of the Federation or of any state and has not resigned, withdrawn or retired from such employment…”.

This position of the law is also supported by the decision of the Supreme Court in CHIEF JOHN EZE V DIRECTOR I. OKECHUKWU (1998) 5 NWLR part 548 page 43. I am compelled, like my learned brother, in view of these to arrive at the conclusion that the Appellant is a public officer, for the simple reason that he is a legislator, and legislators are not excluded from the list that makes up public officers.

I am further fortified in this belief by Part II of the Fifth Schedule, which makes a Senator and a member of the House of representatives a public officer for the purposes of the code of conduct, among other things. Now on the question of whether the Respondent has proved its case against the Appellant beyond reasonable doubt, it is important to have recourse to the basic meaning of the operative word. ​Generally speaking, in criminal trials, the standard required is proof beyond reasonable doubt, and not proof beyond any iota of doubt. The two mean entirely different things.

The law has opted for the expression “proof beyond reasonable doubt, see DIMLONG V. DIMLONG [1998] 2 NWLR (PT. 538) 381, 178 AND STATE V. GWANGWAN (2015) LPELR-24837 (SC). The expression “beyond reasonable doubt” means the prosecution has discharged the burden imposed on it by law and connotes such proof as is sufficiently required by law, and no more, see OLADELE V. NIGERIAN ARMY [2004] 6 NWLR (PT. 868) 166, 179 AND NSOFOR V. STATE (2004) 18 NWLR (PT. 905) 292, 305.

In this regard, the quality of evidence matters a lot because if the evidence is strong against the accused person as to leave only a remote possibility in his favour which can be dismissed with “of course it is possible but not probable”, then the case is proved beyond reasonable doubt; see SABI V. STATE [2011] 14 NWLR (PT. 1268) 421; IWUNZE V. FEDERAL REPUBLIC OF NIGERIA [2013] 1 NWLR (PT. 1324) 119; NJOKU V. STATE [2013] 2 NWLR (PT. 1339) 548 and OSUAGWU V.

STATE [2013] 5 NWLR (PT. 1347) 360; SEE ALSO SECTION 135 OF THE EVIDENCE ACT, 2011 (SECTION 138 OF THE DEFUNCT EVIDENCE ACT) and GOLDEN DIBIE & 2 ORS. V. THE STATE (2007) 9 NWLR (PT. 1038) 10; SAMBO ALH. GALADIMA V. THE STATE (2017) 14 NWLR (PT. 1585) 187 AT 205, PER SANUSI, and KWAME WISDOM V. THE STATE (2017) 14 NWLR (PT. 1585) 446 AT 464. Where there is any doubt, such doubt is resolved in favour of the accused person, because as provided by Section 36 (5) of the 1999 Constitution, as amended, the accused person is presumed innocent, until the contrary is proved.

The Appellant was charged with corruptly asking for the sum of $3,000,000 from Mr.

Femi Otedola with the intention of favoring him by removing the name of Zenon Petroleum and Gas Ltd from the report of the House Ad-Hoc Committee on monitoring fuel subsidy which the Appellant chairs; and also that the Appellant corruptly agreed to accept the sum of $3,000,000 inducement to remove the company Zenon Petroleum from the list of companies indicted by the committee; see page 382 of the record of appeal. ​The prosecution called five witnesses in proof, unfortunately, none of which led evidence in proof beyond reasonable doubt that the Appellant actually agreed to accept the $3,000,000 from Femi Otedola i.e.

PW5; who in his evidence at page 1159 of the record of appeal stated that he knows the Appellant as the chairman of the investigative committee, and that the Appellant called him to demand the sum of $3,000,000; and also that he gave him $500,000, which was given to him by the directorate of state services; as a consequence of which the name of the company of PW5 was removed from the list, leading to a demand of the balance of $2,500,000 by the Appellant; see pages 1159 to 1167 of the record of appeal, and that PW5 simply told the Appellant that the balance was being arranged, and would be brought to Abuja.

This clearly is not sufficient to proof count one beyond reasonable doubt; and with regard to count two the evidence of PW5 when he stated during examination in chief that: “…I did not offer him $3,000,000 for the fact that I was one of the biggest players in the business and I reported the matter when I discovered the scam and he did mention to me that several companies that got involved with the scam got paying. I reported to DSS.”, is clear proof of failure to prove the allegation in count two.

Furthermore, the telephone numbers the Appellant and PW5 used to communicate were not investigated by either PW2 or anyone else in the prosecution team to ascertain the veracity of the claim of PW5, that the Appellant demanded the said $3,000,000, this in my considered opinion leaves a yawning gap in the case. It is for these reasons that I also agree that counts 1 and 2 were not proved against the Appellant.

It is a different matter altogether with regard to count three which accused the Appellant of receiving $500,000 from PW5 as an inducement to remove Zenon Petroleum from the list of indicted companies. Of all the evidence of the five prosecution witnesses that of PW5 is most damning in the sense that he led evidence in proof of giving the Appellant the said $500,000 in two tranches of $250,000.

PW2 also established that the Appellant collected the said amount; and in furtherance of the promise, the appellant actually removed the name of Zenon petroleum from the list of indicted companies. ​That to my mind proves count three beyond reasonable doubt, bearing in mind that indeed an accused person is not convicted simply because the Court finds his account or version of the incident to be incredible or an outright lie. No, it is not only because of that.

Despite the unconvincing evidence of the Appellant in this regard, especially when he admitted in writing that he did not report any bribery or attempt at that to the police, and still went ahead to undertake to refund $600,000 received from the PW5, i.e. Exhibit PW1C, and also stated that he gave the money to PW4, with the unconvincing claim that he meant to collect it later and make a formal complaint to the police, coupled with the complete denial of this tale by the PW4.

One cannot help but conclude that the story does not add up; but still, this Court while not unaware of its duty to examine the totality of evidence adduced before it in order to ascertain whether the guilt of the accused person has been established beyond reasonable doubt, did just that, leading it to the conclusion that this count was indeed established beyond reasonable doubt. I am on all fours with my learned brother in this regard too; See AGUNBIADE V. THE STATE (1999) 4 NWLR (Pt. 599) 391. ​The admission, and further acceptance to make refund with regard to the $500,000 settles it for me.

There is no further need for corroboration; see Exhibits G1-G3 and pages 1153 and 1155 of the record of appeal.

The trial Court was impeccable in its findings, especially with regard to count three. I also allow the appeal in part, with regard to counts one and two of the charge. The Appellant’s appeal fails in respect of count three, and the appeal is dismissed in that regard. I accordingly affirm the conviction of the Appellant under Section 17 (1) (a) of the Corrupt Practices and other Related Offences Act, 2000. I affirm the sentence of 5 years’ imprisonment too.