Guardian

Guardian Law Report

In the High Court of Justice,

Federal Capital Territory,

In the Abuja Judicial Division,

Holden at Apo, Abuja F.C.T,

Suit No: FCT/HC/CR/100/2011,

On January 31, 2012,

Between

Federal Republic of Nigeria   … (prosecution/respondent),

and Oladimeji Sabur Bankole, CFR (accused/applicant)

Usman Bayero Nafada …  (accused/applicant)

Ruling delivered by Justice Suleiman B. Belgore)

IN this ruling, I wish to begin by giving a bird view of this case.

The two accused persons, Dimeji Saburi Bankole and Usman Bayero Nafada, are erstwhile leaders of the 6th House of Representatives. The 1st accused was the Speaker while the 2nd accused was Deputy Speaker.

The complainant is the Federal Republic of Nigeria whose mouth-piece is the Economic and Financial Crimes Commission hereinafter referred to simply as EFCC.

The charge-sheet contains 17-counts and broadly speaking, the classes of offences alleged against the accused persons are:

• Violation of the approved remuneration package for political, public and judicial office holders by the Revenue Mobilization, Allocation and Fiscal Commission;

• Violation of extant revised financial regulation of the Federal Government 2009;

• Conspiracy contrary to S97 of the Penal Code;

• Criminal breach of trust contrary to 5311 of the Penal Code and punishable under S315 of the Penal Code; and

• Theft contrary to 5286 of the Penal Code.

On June 13, 2011, the two accused persons were arraigned in court. Upon the charge being read to them, they both pleaded not guilty to all the counts - and I granted them bail. While on bail, they made strenuous efforts to truncate the trial by various applications but failed. So it happened that on November 21, 2011, hearing of this case commenced.     In all, 12 prosecution witnesses testified and 41. Exhibits were admitted in evidence through them. The witnesses are:

• Adebayo Adeniyi, an operative with the EFCC, testified as PW1;

• Ibrahim Ahmed, an Assistant Superintendent of Police (ASP), is on secondment to EFCC and testified as PW2;

• Samuel Naziga, a deputy director in the Revenue Mobilisation Allocation and Fiscal Commission, was the PW3;

• Muhammed Ataba Sani Omolori, a public servant, he is currently the Clerk of the House of Representatives. He testified as PW4;

• Abdullahi Nma, manager, National Assembly branch of the United Bank for Africa Plc, was the PW5;

• Alex Adeyemi, a deputy director in the Office of the Accountant - General of the Federation, testified as PW6;

• Adeniyi Adeyemo, a civil servant in the office of the Accountant General of the Federation, gave evidence as PW7;

• Bukoye Lasisi, a civil servant. He is the Director of Finance and Accounts in the National Assembly. He gave evidence as PW8;

• Sefiya Musa, a relationship manager with First Bank Plc testified as PW9;

• Franklin Oneyem Samgbe, a civil servant in the Budget Office of the Federal Ministry of Finance, testified as PW10;

• Salisu Abubakar Maikasuwa. He is a civil servant. He is the Clerk of the National Assembly. He gave evidence as PW11;

• Abdullahi Bashir, a Deputy - Superintendent of Police. He works with EFCC as an operative. He was the PW12 and incidentally the last PW.

The exhibits numbered A1 - A42 are as follows:

• A1- statement of 1st accused made at EFCC on June 6, 2011;

• A2 - statement of 1st accused made at EFCC on June 7, 2011;

• A3 - statement of 2nd accused made at EFCC office on June 8, 2011;

• A4 - statement of 2nd accused made at EFCC office on July 6, 2011;

• A5 - A13, bundles of letters dated variously as 6th, 7th, 9th and June 10, 2011 and headed “investigation activities, remuneration of public officers, etc and signed variously by Ahmed Abdulrahman, Ibrahim Lamorde and Suleiman Abdul;

• A14 - a letter dated June 6, 2011 and signed by A. C. Adighiogu;

• A15 - a letter dated June 9, 2011 and signed by one Samuel Nazina;

• A16 - the written Resolution of the Executive Session of the House of Representatives held on Thursday, March 25, 2010;

• A17 - the written Resolution of the Executive Session of the House of Representatives on the Report of the 37 members committee held on Tuesday, March 30, 2010;

• A18- Extracts of the meeting of some members of the 37-member committee on the House Capital Allocation for 2010 dated June 1, 2010;

• A19 - Extracts of the meeting of principal officers of the House of Representatives and some management staff of National Assembly held on May 12, 2010;

• A20 - a document dated May 2, 2010, addressed to the Speaker;

• A21 - a document titled payment of additional running costs for members dated October 19, 2010;

• A22 - a document headed “outstanding liabilities of the House of Representatives dated November 4, 2010 and addressed to the Speaker;

• A23 - 2010 Appropriation Amendment Act prepared by the National Assembly;

• A24 - offer letter for the loan of over N5.4 billion and dated August 5, 2010;

• A25 - offer letter for the loan of N6 billion dated October 29, 2010;

• A26 - offer letter for the loan of N4.05 billion and dated November 29, 2010;

• A27 - offer letter for the loan of over N10 billion, dated January 25, 2011;

• A28 - a letter headed “investigation activities: request for information/document” dated June 9, 2011, addressed to the Accountant General of the Federation and signed by Ahmad Abdulrahman;

• A29 - a letter headed “investigation activities ....” addressed to Chairman EFCC and signed by one A. M. Adeyemi and dated June 10, 2011;

• A30 - A letter from EFCC addressed to Accountant General of the Federation, dated June 14, 2011 and signed by Ahmad Abdulrahman;

• A31 - a letter addressed to the chairman EFCC, dated July 25, 2011 and signed by one Babayo Shehu;

• A32 - A38, all document on the letter headed paper of the National Assembly; a document with column, Oceanic Bank Plc, A/c number and figures and a bundle of documents running from page 1- 35;

• A39 - a document headed” request for facility addressed to the Manager, first Bank Plc and dated May 30, 2011;

• A40 - offer letter dated May 31, 2011;

• A41 - a computer print-out;

• A42 - a letter headed “investigation activities; request for information/document addressed to the executive chairman EFCC and signed by Bright Okogun, director-general.

With the evidence of the last prosecution witness i.e. PW12 on November 29, 2011; the prosecution closed its case. A private legal practitioner by name, Mr. Festus Keyamo, has prosecuted this case so far. He is leading a team of other learned counsel.

At the close of the prosecution’s case, the learned counsel for the 1st and 2nd accused persons made a no case submission.

For the 1st accused person is Mr. Olawale Akoni (SAN), leading a team of other senior lawyers that include S. T. Ologunorisa (SAN).

Let me at this juncture do a brief exposition of the principles involved in a no case submission.

No case submission

S191 (3) of the Criminal Procedure Code, the adjectival law that provides the framework and steps for the trial of these two accused persons in this court, provides that:

“Notwithstanding the provisions of sub-section (2) of the same S191, the court may after hearing the evidence for the prosecution, if it considers that the evidence against the accused is not sufficient to justify proceeding further with the trial, record a finding of not guilty in respect of such accused without calling upon him to enter his defence. And such an accused shall be discharged”.

The principle behind a no case submission is that an accused should be relieved of the responsibility of defending himself when there is no evidence upon which a trial judge could convict. That is the first principle. The other principle is that a no case submission essentially postulates that whatever evidence there was, which might have linked the accused person with the offence had been so discredited that no reasonable court can act on it as to pronounce the guilt of the accused. See Onagoruwa v. State (1993) 7 NWLR (pt 303) 49; State v. Audu (1972) 6SC 28; Adeyem v. State (1991) 6 NWLR (pt 951) 35.

The inherent logic or force behind this principle is the constitutional provision of presumption of innocence. By virtue of 536 of the 1999 Constitution (as amended), every person charged with a criminal offence is presumed to be innocent until he is proved guilty. It is, therefore, the duty of the prosecution to rebut the presumption of innocence constitutionally guaranteed to the accused person. So where a no case had been made out at the end of the presentation of the prosecution’s case, it would amount to asking him to establish his innocence if he is called upon to enter an answer or defence to the charge. See Mumuni v. State (1975) 6 SC 79; Daboh v. State (1979) 5 SC 197.

In essence, a no case submission is available to the accused if at the close of the case for the prosecution, the evidence led fails to meet the essential requirements or elements of the offence charged. In addition, as pointed out by the Supreme Court in Daboh v. State (Supra), the case of the prosecution may fail at this stage if the evidence is so manifestly unreliable having been destroyed by cross-examination of the witness that no reasonable tribunal or court will convict on that evidence. See Aituma v. State (2007) 5 NWLR (pt 1028) 466; Amina v. State (2005) 2 NWLR (pt 909) 108; Igabefe v. State (2004) 15 NWLR (pt 896) 314.

I must state here very quickly that at the point of a no case submission the credibility of the prosecution witnesses is not really in issue. See Awka v. COP (2003) 4 NWLR (pt 811) 461; Aituma’s case (supra) and Igabele’s case (supra). What is in issue is the availability of that evidence pointing to or attaching to all the ingredients of the offence(s) alleged against the accused person. (See Nigerian Criminal Trial Procedure by Olanrewaju Adesola Onadeko, First Edition, 1998).

It is the above two narrated principles and provision of S191 (3) of the Criminal Procedure Code (CPC) that the defence counsel have relied upon in making their applications at this stage. They relied more or wholly on the first principle.

I wish to start with the submission of the learned counsel to the first accused person.

Mr. Olawale Akoni (SAN), submitted that there is no evidence supporting the offences alleged and also that the evidence produced has been so much discredited that no court can rely on it. The learned counsel in his over forty pages written address classified the 17-count charge into five categories - to wit;

• Count 1: Criminal Conspiracy to commit criminal breach of trust;

• Counts 2 to 6: Criminal breach of trust in respect of the House Account(s);

•  Counts 7 to 11: Criminal breach of trust in relation to sums of money;

• Counts 13 to 17: Theft;

• Count 12: Criminal conspiracy to commit theft;

Drawing copiously from the evidence of PW3, PW4, PW8, PW9 and PW11, and Exhibits A15. A17, A19, A20, A2l, A22, A23, A30 and A42, the learned Senior Advocate of Nigeria submitted that there is no violation of the provisions of the revenue Mobilisation, Allocation and Fiscal Commission (RMAFC); no evidence to support entrustment of the actual monies in the account, the accused not being a signatory to the said account; no evidence of dishonesty or acting contrary to any instruction or legislation as to support the allegation of criminal breach of trust. The learned counsel said the offence of criminal breach of trust under S315 of the Penal Code envisaged a public servant, which the first accused person is not.

On the offence of theft contrary to S287 of the Penal Code, the learned counsel to the 1st accused argued that apart from the fact of no evidence to support taking of any item or money, it is surprising that somebody accused of breach of entrustment of the amount stated in the charge is at the same time accused of theft of that same amount. Learned counsel pointed out that from the evidence of PW4, Muhammed Sani Omolori, the 1st and 2nd accused did not even benefit from the loan taken. In fact, their own running cost was drastically reduced.

Furthermore, Mr. Akoni (SAN), submitted that by S96 of the Penal Code, the offence of conspiracy is where there is an agreement to do an illegal act or a legal act by illegal means. He then went on to say that an essential ingredient of this offence is that the act in respect of it must itself be a criminal offence. Learned counsel submitted that no such evidence was produced by any of the prosecution witnesses.

The learned counsel to the 1st accused further submitted that PW4 and PW5 contradicted themselves as to the exact amount of the loan taken. He argued also that many of the prosecution witnesses contradicted the prosecution statement in the charge sheet. This, according to him, made their evidence unreliable and unsafe for the court to act on them. In support of all his arguments, the learned Senior Advocate of Nigeria cited a number of cases and statutes including Atana v. A G. Bendel State (1988) 2 NWLR (pt 75) 201; Onagoruwa v. State (Supra); Aituma V. State (.supra); Shatto V. FRN (2009) 10 NWLR (pt 149) 403; Oduneye V. State (20Gl) FWLR (pt 38) SC 1203; Suleiman v. State (2009) 15 NWLR (pt 1164) 258; Balogun V. A.G. Ogun State (supra); S16 of the Penal Code; item 32 (d) Part 1 of the Third Schedule to the 1999 Constitution and 56 (d) of the Revenue Mobilisation, Allocation and Fiscal Commission Act, Cap R7, Laws of the Federation 2004.

Akoni concluded his address thus:

“In the light of the foregoing, we submit that there is nothing in the prosecution’s evidence which requires the 1st accused to call evidence in his defence. Indeed, the honourable court is urged to be persuaded that asking the 1st accused to answer the instant charge would amount to foisting an obligation on him to establish his innocence contrary to 536(5) of the 1999 Constitution”.

I think I should in one quick sentence deal with the contradiction in the evidence of PW4 and PW5 as to the actual amount. This contradiction pales into insignificance because Exhibit A25, A26, A27 and A28 cleared the matter. I shall come back to this later in this ruling.

Also, prosecutions statement as couched in the charge sheet is certainly no evidence. So the fact that a prosecution witness in his testimony says something different is not significant. They cannot be compared as to give it any serious considerations as Akoni would want us believe.

I now come to the submission of Mr. Tayo Oyetibo (SAN), the learned counsel to the 2nd accused person. His submissions are not too dissimilar with that of Mr. Akoni (SAN). In fact, they are almost the same. In other words, the learned counsel to the 2nd accused was similarly Inclined to the 1st accused person’s counsel.

TO BE CONTINUED