REV. PHILIP MICAH DOPAH & OTHERS vs. REGISTERED TRUSTEES OF THE (UMCN)
April 13, 2025MR. ABBAS MUSTAPHA vs. IDRIS MAHMUD
April 13, 2025Legalpedia Citation: (2017) Legalpedia (CA) 11511
In the Court of Appeal
HOLDEN AT ABUJA
Mon Dec 11, 2017
Suit Number: CA/A/460C/2017
CORAM
PARTIES
FEDERAL REPUBLIC OF NIGERIA
DR. OLUBUKOLA ABUBAKAR SARAKI
AREA(S) OF LAW
SUMMARY OF FACTS
Upon conclusion of an investigation conducted by the Economic and Financial Crimes Commission (EFCC) and the Code of Conduct Bureau, the Appellant preferred a thirteen count charges against the Respondent before the trial tribunal on offences ranging from false declaration of assets, purchasing properties in excess of money fairly attributable to his salary, maintaining a domiciliary account and other similar allegations as contained in the further amended charge. The Respondent pleaded not guilty and sought for an order of the trial tribunal to quash or strike out the charges, the trial tribunal refused the application to quash or strike out the charges against the Respondent and ordered the prosecution to produce witnesses to commence the trial. At the end of the prosecution’s case, the Respondent raised a No Case Submission and the trial tribunal in its ruling upheld the no case submission of the Respondent and discharged and acquitted him of all the charges. Dissatisfied with the said ruling, the Appellant appealed to this Court vide a Notice of Appeal consisting of seven grounds
HELD
Appeal Allowed In Part
ISSUES
Whether the Code of Conduct Tribunal was right in upholding a no case submission raised by the respondent at the close of prosecution’s case. Whether the learned members of the Tribunal are not wrong in holding that the respondent was not invited by the EFCC in the course of its investigation. Whether the Tribunal was not wrong in holding that the investigation conducted by a team of investigators from the Economic and Financial Crimes Commission and the Code of Conduct Bureau was illegal and unknown to law. Whether the Tribunal was right in holding that failure to produce the original Asset Declaration Forms and the Written Statement of the respondent, is fatal to the case of the prosecution when the prosecution tendered the certified True copies of the documents. Whether the Code of Conduct Tribunal was not wrong in upholding the no case submission in the instant case regard being had to the onus of proof on the parties as prescribed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
RATIONES DECIDENDI
BRIEF OF ARGUMENT – CONSEQUENCES OF A PARTY’S FAILURE TO RESPOND TO AN ISSUE IN A BRIEF OF ARGUMENT
“Where a party fails to respond to an issue in a brief of argument or a written brief, he is deemed to have conceded the point in issue. See Nwankwo v. Yar’Adua (2010) All FWLR (Pt. 534) 1 at p. 22; INEC v. Nyako (2011) 12 NWLR (pt. 1262) 439 C.A. –
PRINCIPLE OF STARE DECISIS – WHETHER AN INFERIOR COURT CAN CONSTITUTE ITSELF AS AN APPEAL OVER THE DECISION OF THE COURT OF APPEAL
“As rightly noted by the learned counsel to the appellant, the Court of Appeal decision is supported by the decision in Bamaiyi v. A.G. Federation (2000) 6 NWLR (Pt. 661) 421 at 460-461 paras G-E, where it was held that it was not unlawful for the Attorney-General of the Federation to set up special investigation panel comprising of police and other enforcement agencies. I am in full agreement with the learned senior counsel for the appellant that refusal of the Tribunal to bind itself on this point and thereby unwittingly constituting itself as an appeal over the decision of the Court of Appeal amounted to judicial impertinence and disrespect to this Court. See A.G. Anambra v. Eyitene (1985) 6 NSCLR 753. By the principle of stare decisis, an inferior Court is bound by the decision of the Superior Court. See Obiuweubi v. C.B.N. (2011) 7 NWLR (Pt. 1247) 465 S.C.; Gebi v. Dahiru (2013) 1 NWLR (Pt. 1282) 560 C.A. –
PUBLIC DOCUMENT – NATURE OF A PUBLIC DOCUMENT ADMISSIBLE IN PROOF OF THE CONTENT OF THE PUBLIC DOCUMENT.
“It is trite that by the provisions of Sections 104 and 105 of the Evidence Act, Certified True copy of a public document may be produced or is admissible in proof of the content of the public document. See Anambra State Govt. v. Gemex Int’l Ltd (2012) 1 NWLR (Pt. 1281) 333 CA, Ogunleye v. Aina (2011) 3 NWLR (Pt. 1235) 479 CA. Exhibits 1-6 and 26 and 46, being certified true copies of public documents were properly admitted by the Tribunal. It is the law that by virtue of Section 146 of the Evidence Act, a public document duly certified is presumed to be genuine though the presumption is rebuttable. See Okelola v. Adeleke (2004) 13 NWLR (Pt. 890) 313 at 325; Daggash v. Bulama (2004) All FWLR (Pt. 212) 1666; Ayaokoro v. Obiakor (1990) 2 NWLR (Pt. 130) 52. There is no law that stipulates that only originals of public documents must be tendered in evidence to prove the genuineness of the documents”. –
CROSS EXAMINATION – EFFECT OF FAILURE TO CROSS-EXAMINE A WITNESS ON A PARTICULAR MATTER
“The respondent did not cross-examine the witnesses of the prosecution on the genuineness or otherwise of the documents. The law is settled that the effect of failure to cross-examine a witness on a particular matter is tacit acceptance of the truth of the evidence of the witness. See Gaji v. Paye (2003) 8 NWLR (Pt.823) 583, CBN &Ors v. Okojie (2015) LPELR -24740 (SC). –
CRIMINAL TRIAL – PRINCIPLES GOVERNING BURDEN OF PROOF IN CRIMINAL CASES
“The law is settled, beyond peradventure that in criminal cases, the burden of proof is on the prosecution and the degree of proof is beyond reasonable doubt. See Aruna v. State (1990) 9-10 SC 87, Anyanwu v. State (2013) 16 NWLR (Pt. 1325) 221 CA; Zakari v. Nigerian Army (2012) 5 NWLR (Pt. 1294) 478 CA; Salawu v. State (2015) 2 NWLR (Pt. 1444) 595 SC; Oyebanji v. State(2015) 14 NWLR (Pt. 1479) 270 SC, Obue v. State (1976) 2SC 141. This principle of law is predicated on the adversarial system of adjudication practiced in Nigeria that an accused person standing trial, under our Constitution is presumed to be innocent until proved guilty. See Section 36(5) of the Constitution of Federal Republic of Nigeria, 1999 (as amended). Suberu v. The State (2010) 8 NWLR (Pt. 1197) 586; Njovens v. State (1973) All NLR 141, Ameh v. State (1973) 6-7 SC 27, Kalu v. State (1988) 4 NWLR (Pt. 90) 503. The law is trite that the burden of proof is placed squarely on the prosecution and never shifts except as envisaged by proviso to Section 36(5) of the 1999 Constitution except where there is a law that has cast the burden on the accused to prove particular facts. See Ogundiyan v. The State (1991) 3 NWLR (pt. 181) 519, Abdullahi v. The State (2008) 17 NWLR (Pt 1115) 203. It is no more in doubt that the proceedings before the Code of Conduct Tribunal are criminal in nature. In Saraki v. F.R.N. (2016) 3 NWLR (Pt. 1500) 531 at p. 579, the Supreme Court per Onnoghen JSC (as he then was) clarified the position thus-
“From the totality of the provisions it is my view that it is clear that the intention of the legislature is to make the proceedings of the tribunal criminal proceeding to be regulated by criminal Procedure.”
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ONUS OF PROOF – WHETHER THE ONUS OF PROOF OF BREACH OF THE CODE OF CONDUCT IS ON THE PUBLIC OFFICER
“I am afraid, I do not see any provision therein that imposes upon the public officer the burden of proving any particular fact envisaged under the proviso to Section 36(5) of the Constitution that shifts the onus of proof of the breach of the Code of Conduct on the public officer. The law regulating the assets declaration does not place any burden on the respondent to prove any particular facts. The onus of proof is definitely not on the respondent to prove his innocence. The proviso in Section 36(5) of the Constitution has no bearing on the Code of Conduct. Granted the proviso to Section 36(5), provides for some exceptions where the onus of proof shifts to the accused person; in my view, such exceptions are like statutory defences of provocation, insanity, accident etc where the onus shifts on the accused to prove his defence. See Ikechukwu Okoh v. State (2014) LPELR -22589(SC), Adeoti v. The State (1998) 7 SCNJ 83. The pronouncement of Nweze JSC in Osuagwu v. State (2016) 15 NWLR (Pt. 1532) 31at 67-69 paras B-E is apt –
“The burden of proof remains on the prosecution throughout and does not shift to the accused person except in few limited circumstances such as where an accused person raises a defence of insanity… This notion of the prosecutions burden derives from our accusatorial criminal justice system. Under it, in contradistinction to the inquisitorial system, it is anathematic to expect an accused person to purge himself of guilt. This must be so since the fundamental law of the country, the Constitution (Section 36(5) thereof avails him the presumption of innocence until proven otherwise… This is actually a fundamental principle of most commonwealth penal laws, often couched in the ancient maxim in dubio pro reo-a principle which has been interpreted as imposing the burden of proving the guilty of an accused person on the prosecution. In my view, the burden of proof does not shift here. By the provisions of Paragraph 11(1), the duty is imposed on a public officer to correctly fill and submit his asset declaration form as prescribed. These declarations are sworn to before a Judge of the High Court. It is the duty of the officials of the Code of Conduct Bureau (CCB) to verify the statements made in the form. Where any of such statement is found to be untrue, the officer is liable to be prosecuted for any falsity on the Form, just like the offence of perjury. In that regard, it is the ultimate duty of the prosecution to prove the guilt of the public officer in a criminal trial. In other words, it is the prosecution’s duty to establish a prima facie case against the officer. It is after the prosecution has satisfied the burden of proof placed on him to prove the infraction or contravention of the Code of Conduct that such an officer/defendant/accused, in order not to be convicted of the offence alleged, now has the duty of rebutting the evidence of the prosecution or proffering his defence to the charge. See Dibie v. State (2005) All FWLR (Pt. 259) 1995, Igabele v. State(2005) All FWLR (Pt. 285) 568. The duty of the respondent to defend himself in order to avoid conviction where a prima facie case has been made against him is not tantamount to a shift from the cardinal principle of law in criminal case that imposes the burden of proof on the prosecution. In effect, the burden of proof is irrevocably on the prosecution. The Tribunal was therefore right when it held that the onus of proof was not on the respondent to prove his innocence.
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NO CASE SUBMISSION – CIRCUMSTANCES WHEN A NO CASE SUBMISSION WOULD BE MADE AND UPHELD
“Let me now consider the principles of no case submission: At the close of case for the prosecution, a no case submission can be made and upheld in a criminal proceeding in any of these situations:
1. Where there is no evidence to prove the essential element of the offence has charged.
2. Where there is no legally admissible evidence to prove an essential ingredient of the offence.
3. The evidence of the material witness has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal or Court can rely on it as establishing the guilt of the accused person.
In other words, a submission of no case to answer postulates that there is no evidence on which even if believed, the Court would convict. The Court only has to be satisfied that there is a prima facie case requiring some explanation from the accused person to defend himself. See Aituma v. The State (2007) 5 NWLR (Pt. 1025) 465, Suberu v. State (2010) 8 NWLR (Pt. 1197) 586 at 609 C-G, Daboh v. The State (1977) 5 SC 197 at 209, State v. Ajuluchukwu (2011) 5 NWLR (Pt. 1239) 78 at 89-90 G-A; C.O.P. v. Amuta (2017) LPELR-41356 (SC)”. –
PRIMA FACIE CASE – WHEN IS A PRIMA FACIE CASE MADE AGAINST AN ACCUSED PERSON?
“It is trite law that evidence discloses a prima facie case when it is such that if uncontradicted and it is believed, it will be sufficient to prove a case against the accused person. In the circumstance, the accused will then be called upon to enter his defence and offer explanation to the Court on the charges against him. At this stage, it is important to note that the factors that the Court will consider in determining whether an information discloses a prima facie case against an accused person for the determination of whether or not to be prosecuted are different from the factors upon which a Court will determine that a prima facie case has been made upon which an accused person will be called upon to enter his defence. This is because there is tendency of using the terminology for both situations. In criminal information, in determining whether there is a prima facie case, the Court will determine whether the facts in the statements of the information sufficiently link the accused person to the offences charged upon which there is a ground for proceeding against him. At this stage, the trial Court is not called to express an opinion on the evidence before it; he is not to consider the credibility of the witnesses as hearing has not commenced, neither is it to consider the weight attached to the evidence. What is important is that there is a ground for proceeding with the charge or the trial. See Ajijagba v. IGP (1958) SCNLR 60; Ajiboye v. The State (1998) ACLR 355 at 363, Ekwunugo v. FRN (2008) 40 WRN 160 at 170; Nyame v. FRN (2010) 42 1 NSCQR 45 at 84. However, the situation is different where a submission of no prima facie case to answer is made on behalf of the accused person. In a criminal trial, a prima facie case is a case in which the evidence adduced by the prosecution, is sufficient to call upon the accused to make a defence, without which a Court of law is competent to proceed to conviction. In other words, it means the prosecution has presented sufficient evidence to establish the ingredients of the offence that the accused is convictable, in the absence of contrary evidence. See Onagoruwa v. The State (1993) 7 NWLR (Pt. 303) 49 at 81. In ObinnaOkeke v. The State (2012) LPELR-9793 (CA) at p.20, this Court held thus
“In a criminal trial, at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of the accused person postulates one or two things or both of them at once: (a) Such a submission postulates that there has been throughout the trial no legal admissible evidence of whom the submission has been made, linking him in any way with the commission of the offence with which he had been charged, which would necessitate his being called upon to defend himself, (b) That whatever evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable Court can be called upon to act on it as establishing criminal guilt in (sic) the accused person concerned.” (Underling for emphasis)
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NO CASE SUBMISSION – FACTORS THE COURT WILL DETERMINE IN CONSIDERING AN APPLICATION FOR A NO CASE SUBMISSION
“The Administration of Criminal Justice Act, 2015 (ACJA) has codified the principles for no case submission. Sections 302 and 303 provides – 302 – The Court may, on its own motion or on application by the defendant after hearing the evidence for the prosecution, where it considers that the evidence against the defendant or any of several defendants is not sufficient to justify the continuation of the trial, record a finding of not guilty in respect of the defendant without calling on him or them to enter his or their defence and the defendant shall accordingly be discharged and the Court shall then call on the remaining defendants, if any, to enter his defence.
In considering the application of the defendant under Section 303, the Court shall, in the exercise of its discretion have regard to whether:
a. An essential element of the offence has been proved;
b. There is evidence linking the defendant with the commission of the offence with which he is charged;
c. The evidence so far led is such that no reasonable Court or tribunal would convict on it; and
d. any other ground on which the Court may find that a prima facie case has not been made out against the defendant for him to be called upon to answer.” The meaning of “prima facie case” does not have a definition of mathematical precision. It has received several judicial consideration and pronouncements in numerous cases. See Babale v. Eze (2011) 11 NWLR (Pt. 1257) 48 CA; S.S. GMBH v. T.D. Ind. Ltd. (2010) 11 NWLR (Pt. 1200) 589 S.C.; Aromire v. Awoyemi (1972) 2 SC 1;Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24.However in a simplistic manner the Supreme Court in the case of Ubanatu v. C.O.P. (2000) 2 NWLR (Pt. 643)175 defined the term as
“A case in which there is evidence which will suffice to support the allegation made in it, and which will stand unless there is evidence to rebut the allegation.”
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HEARSAY EVIDENCE – WHAT AMOUNTS TO HEARSAY EVIDENCE AND ITS INADMISSABILITY
“By virtue of Section 38 of the Evidence Act, hearsay evidence is not admissible except as provided under the Evidence Act, or under any other Act. Hearsay evidence is therefore an evidence which does not solely derive its value from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. See Judicial Service Committee v. Omo (1990) 6 NWLR (pt. 157) 401. Evidence of a statement made to a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by evidence not the truth of the statement but the fact that it was said. See Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1 SC, Okpa v. State (2014) 13 NWLR (Pt. 1424) 225 at 249. PW1 and PW3 were members of investigating team in this case. The law is settled that the evidence of an investigating police officer of facts he personally saw or discovered in the course of his investigation is not hearsay evidence to render such facts inadmissible. See Oladejo v. The State (1994) 6 NWLR (Pt. 348) 101, Kachi v. The State (2015) 9 NWLR (Pt. 1464) 213 at 234-235. –
DOCUMENTARY EVIDENCE – CONSEQUENCES OF WHERE THE MAKER OF A DOCUMENT IS NOT CALLED TO TESTIFY ON THE DOCUMENT
“All these pieces of evidence, such as on loans, liabilities of the respondent amount to documentary evidence which is inadmissible. The makers of the exhibits ought to testify about them in Court. The law is settled that where a maker of a document is not called to testify, the document would not be accorded probative value notwithstanding that they are certified. Any evidence adduced by a witness, who is not the author, on the contents of those documents would be hearsay and therefore inadmissible. In other words, any such document tendered by a person who is not the maker deprives the other party the opportunity to cross-examine on it for the purposes of determining its veracity. No probative value will be foisted on it. See Sa’eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 114 at 149-150, Emmanuel v. Umana (2016) 12 NWLR (Pt. 1526) 720 at 286. In Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87 at 146-147 D-H the Supreme Court held At page 6146 of the record, the lower Court found that PW1, not being the maker of Exhibits 1-192, 201 and 203-216 was not competent to lead evidence on the contents of those documents. It is also held that PW1, not being a polling unit or ward agent for the appellant was not privy to making of any of the electoral forms or documents/neither was he present when they were made. This was how their Lordships concluded on PW1. “Any evidence so adduced by him as to the contents of those documents would be hearsay and therefore inadmissible.”
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HEARSAY EVIDENCE – MEANING OF HEARSAY EVIDENCE AND INSTANCE WHEN IT WILL BE ADMISSIBLE
“As rightly noted and submitted by the learned senior counsel for the respondent, ‘PW1 told the Tribunal that the evidence he gave concerning the alleged purchase by the respondent of Federal Government houses was derived from what he was told by the Presidential Committee orally and from the letters and files received from that organization. His evidence on the alleged purchase of houses by the respondent from the Central Bank was derived from the replies and files his investigation team received from the Central Bank. Those exhibits constituted documentary hearsay. PW1’s evidence on the respondents alleged loans from Guarantee Trust Bank was simply a recitation of the contents of the statement of account given to the EFCC by the banks. His evidence on a previous investigation conducted in 2006 was what he was told by Adamu Garba, whom he swore would be called to testify. Adamu Garba was never called to testify. The rest was what he was given by the Lands Registry by way of Certified True Copies and so on.” The evidence of PW1 on these issues is admissible only as to what he carried out in the process of investigation but it is hearsay and totally inadmissible for proving the truth of the contents of the exhibits tendered. See Utteh v. The State (1992) 2 SCNJ (Pt. 1) 183; Onya v. Ogbuji (2011) All FWLR (Pt. 556) 493 CA. It is observed that PW1 gave incisive details about some investigations carried out by EFCC concerning the respondent. However, the actual persons who gave the information were not called to testify. Meanwhile lots of assertions were made by PW1 in his testimony in a bid to establish the allegations made against the respondent in the further amended charge. The law is settled that, express or implied assertions of any person other than the witness who is testifying and assertions in documents produced to the Court when no witness is testifying are hearsay, hence inadmissible as evidence of that which is asserted. See Ijioffor v. The State (2001) 4 SCNJ 230. In Ojo v. Gharoro (2006) All FWLR (Pt. 316) 197 at 217, the Supreme Court, per Tobi JSC, adopted the definition of hearsay in Subramaman v. Public Prosecution (1956) 1 WRL 955 at 969 thus “When a third party relates a story to another a proof of contents of a statement, such story is hearsay. Hearsay evidence is all evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part on the veracity and competence of some other person. See Judicial Service Committee, Bendel State v. Omo (1990) 6 NWLR (Pt, 157) 407. A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify. See Utteh v. The State (1992) 2 NWLR (Pt 223) 257. The word “hearsay” is used in various sense. Sometimes it means whatever a person is heard to say. Sometimes it means whatever a person declares on information given by someone else. The Evidence Act, Cap. 112 Laws of the Federation of Nigeria, 1990 does not specifically use the expression “hearsay evidence” but the totality of Section 77 of the Act by interpretation of the Courts, provide for hearsay evidence. In most cases, hearsay evidence is to the following or like effect: “I was told by XYZ that; or XYZ told me that; or I heard that XYZ told ABC that; or I made inquiries and I was told that.” See also Odogwu v. State (2013) 14 NWLR (Pt. 1373) 94, ACN v. Nyako (2015) 18 NWLR (Pt. 1491) 352 at 386. –
CALLING OF WITNESSES – EFFECT OF FAILURE OF THE PROSECUTION TO CALL VITAL WITNESS IN SUPPORT OF ITS CASE
“The law is settled that the prosecution is not under a duty to call all available witnesses to prove its case. However the prosecution is bound to call a vital witness whose evidence is material to determine a case one way or the other. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case. A witness who knows something significant about a matter is a vital witness and ought to be called by the prosecution. See State v. Nnolim& Anor (1994) 5 NWLR (pt. 345) 394 at 406, Omogodo v. The State (198) 5 SC 5, Onah v. The State (1985) 3 NWLR (Pt. 12) 236. As I said earlier, practically all the material evidence adduced by the prosecution witness was hearsay. The actual person or persons or authorities who have direct knowledge about the facts sought to be proved were not called to testify before the Tribunal. –
CRIMINAL TRIAL – WHETHER AGENCIES OF THE FEDERAL GOVERNMENT CAN COLLABORATE IN INVESTIGATIONS TOWARDS A SUCCESSFUL PROSECUTION OF A CASE
“I agree with the conclusions reached, and adopt same as mine; but wish to add that, the tribunal was wrong to have held to the effect that investigations by the team consisting of Code of Conduct Bureau, EFCC and DSS is unknown to law. See pages 2131 to 2132 of the record of appeal. I am compelled to arrive at this conclusion because this Court had in its decision in CA/A/172C/2016 categorically stated that nothing stops these agencies from collaborating in investigations towards a successful prosecution of a case, not least because all of them are undeniably agencies of the Federal Government with the necessary mandate to investigate and prosecute; see Bamaiyi v. AG Fed (2000) 6 NWLR part 661 page 421; thus requiring each agency to perform its functions without collaborating with the other is only likely to end up in duplication and likely chaos. –
PUBLIC DOCUMENTS – REQUIREMENT FOR THE ADMISSIBILITY OF PUBLIC DOCUMENTS
“Furthermore, there is neither need nor necessity for the tendering of the originals of Exhibits 1-6, 26 and 45, i.e. the assets declaration forms and the written statement of the respondent, because these documents are public documents, admitted without objection, and especially as they are certified true copies, see Sections 102, 104, 105 and 146 of the Evidence Act, as well as Amosun V INEC & Ors (2010) LPELR-4943 CA. There is no requirement that the originals of these documents ought to be produced, as such Adda V. Liman (2012) 4 NWLR part 1290 at 243 relied on by learned senior counsel for the respondent was clearly quoted out of context. Most importantly, the originals of these documents were actually produced in Court for comparison, and the respondent at that point chose not even to cross examine the witnesses of the prosecution to test the veracity of those documents, thus accepting their genuineness for all intents and purposes”. –
CASES CITED
Not Available
STATUTES REFERRED TO
Administration of Criminal Justice Act (ACJA)|Code of Conduct Bureau Act, Cap. C.15, Laws of the Federation of Nigeria, 2004|Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Evidence Act, 2011|
