IN THE HIGH COURT OF FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT MAITAMA ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE JUDE OKEKE

ON WEDNESDAY THE 5TH DAY OF APRIL, 2017

​SUIT NO: FCT/HC/CR/21/2016

BETWEEN:

FEDERAL REPUBLIC OF NIGERIA…………..………..……..COMPLAINANT

AND

(1).​ADENIYI FRANCIS ADETOKUNBO ADEMOLA

(2).​OLABOWALE TOLUWATOPE ADEMOLA​ …..DEFENDANTS

(3).​JOE ODEY AGI

RULING (Pt 2)

When cross examined by the 3rd Defendants Counsel, the witness stated that he had a second interview with the 3rd Defendant on 23rd December, 2016. He (the 3rd Defendant) told him that the gift passed from Hubert and Bassey onto the 1st and 2nd Defendants on their daughters wedding was not the only gift the couple received. That President Buharis lawyer by name Mr. Kola Awodein SAN made a gift of N500, 000.00 to the family. That within the period, the Presidents case relating to his certificate was pending before the 1st Defendant. He however did not investigate his assertion by the 3rd Defendant. A certified true copy of Record of Proceedings in Suit No: FHC/ABJ/CA/01/15: MR. CHUKWUNWEIKE OKAFOR V GENERAL MUHAMMED BUHARI (RTD) dated 9th December, 2015 was admitted as Exhibit FFF.

When shown Exhibit FFF, the witness stated that by making a wedding gift to the 1st Defendant, President Buhari was not bribing the 1st Defendant. It will be speculative to say that the gifts from common friends passed on to the 1st Defendant by the 3rd Defendant was gratification.

Dwelling further, the witness admitted that the N30, 000, 000.00 he said was deposited in the 2nd Defendants Account has nothing to do with the case of Friday Ukpong V Chief of Naval Staff before the 1st Defendant. The case was in 2014 while the lodgement was in 2015.

A certified true copy of enrolled Order of Hon. Justice E. A. Obile in Suit No: FHC/CA/CS/32/12: LINAS INTERNATIONAL LTD & 234 ORS V FEDERAL GOVERNMENT OF NIGERIA & 3 ORS dated 21st January, 2013 was admitted as Exhibit III. When shown Exhibit III, the witness identified the 1st and 2nd Defendants in it are Federal Government of Nigeria and Attorney General of Federation. That they did not oppose the application for transfer of the suit. A certified true copy of the letter of transfer of case file with Suit No: FHC/CA/CS/32/12 dated 21st February, 2013 was admitted as Exhibit JJJ.

When shown Exhibit JJJ, the witness said it was only that day that he got to know how the case was transferred from Calabar to Abuja.

A certified true copy of the Record of Proceedings in Suit No: FHC/ABJ/CS/130/13: LINAS INTERNATIONAL LTD & 236 ORS V FEDERAL REPBLIC OF NIGERIA & 3 ORS was admitted as Exhibit MMM. When shown the Exhibit, the witness said the Order was made few days after the last tranch of N10, 000, 000.00. That the order was against the interest of the 3rd Defendant. The 3rd Defendant was not paying the 1st Defendant to make Orders against him.

Concluding, the witness stated that with all he has now seen his initial view on the matter was based on incomplete knowledge.

The Prosecutions Pw17 Mr. Ayilara Abdul of Skye Bank tendered the 3rd Defendants Statement of Account with Skye Bank for the period 1st July 2013 to 31st March 2016 as Exhibit PP. He admitted under cross examination by the learned 1st Defendants Counsel that he cannot find the 1st Defendants name in any of the entries in it. He cannot also find any suit number in any of the entries in it.

When cross examined by the 2nd Defendants Counsel, he also said he could not see the 2nd Defendants name in Exhibit PPP. When cross examined by the 3rd Defendants Counsel he said when shown Exhibit PP that he does not know the purpose for the inflows of 24th June, 2014 and 25th June, 2014 in it. He also said he did not know the purpose of the inflows in 26th June, 2014 and 14th June, 2014.

I have taken time to summarize the foregoing evidence of the Prosecutions witnesses whose testimonies touch on the 1st to 3rd Defendants bank accounts and transactions therein as well as the investigations the Pw16 carried out with regard to the allegation of Conspiracy within jurisdiction by the 1st to 3rd Defendants to influence the 1st Defendant with the sum of N30, 000, 000.00 in the course of his official functions as a Judge of the Federal High Court. The critical questions that emerge after this painstaking effort are whether or not by the evidence of the witnesses it can be said there is prima facie evidence showing:-

(1). Agreement by two or more of the Defendants to do an illegal ie giving the 1st Defendant within jurisdiction the sum of N30, 000, 000.00 to influence him in his official functions as a Judge of the Federal High Court.

(2). Some act was done by one or more of the Defendants in furtherance of the agreement.

In other words, that the said sum of N30, 000, 000.00 was given to the 1st Defendant to influence him in his official functions as a Judge of Federal High Court.

(3). Each of the Defendants individually participated in the Conspiracy.

With respect, I cannot find any prima facie evidence showing or illustrating any of the above ingredients of the offence of criminal conspiracy under Section 96 of the Penal Code Law as charged in Count 1 of the Charge. From the Prosecutions Pw8 through Pw9 to Pw17 all of whom were staff of the respective banks where the 1st to 3rd Defendants respective banks accounts are domiciled, none of them testified both under evidence in chief and cross examination that the sum of money particularly N30, 000, 000.00 was transferred from either the 2nd Defendant or the 3rd Defendants account to the 1st Defendants account for any purpose. Indeed by their testimonies, there is no iota of evidence of transfer of money (particularly N30, 000, 000.00 or tranches of N10, 000, 000.00) from either the 2nd Defendant or 3rd Defendant into that of the 1st Defendant. If there is no evidence of any transfer of such money into the 1st Defendants account, even if there was an agreement to so transfer the money to the 1st Defendants account to influence him in the course of his official functions as a Judge of Federal High Court, for the reason that there is no evidence showing such a transfer was done, the 2nd and 3rd ingredients of the offence (ie an act in furtherance of the agreement and participation of all the Defendants in it) cannot be said to have been established by minimal evidence. In any event, there is no scintilla of evidence by the aforesaid witnesses, the Pw16 inclusive, showing when, where and how the Defendants minds met in agreement to commit the illegal act of influencing the 1st Defendant in the course of his functions as a Judge of Federal High Court with N30, 000, 000.00.

In coming to the above view, the Court particularly reckons with the evidence of the Pw16 who testified he investigated this case. It is instructive that after his initial testimony under evidence in chief with respect to payments of N10, 000, 000.00 in three tranches into the 2nd Defendants Account by the 3rd Defendant at different times the latter had Garnishee proceedings before the 1st Defendant, under cross examination he admitted unambiguously that he does not know of any case in relation to which lodgements were made from the 3rd Defendants Account to influence the 1st Defendant (see page 173 paragraph 3 of Records of Proceedings). After contending under Evidence in Chief that the 1st Defendant made Garnishee Orders in favour of the 3rd Defendants client Linas International Ltd in Suit No: FHC/ABJ/CA/130/13 after the last tranch of N10, 000, 000.00 was paid into him, he did a summersault under cross examination and said the 1st Defendants order was against the interest of the 3rd Defendant. That the 3rd Defendant could not have been paying the 1st Defendant to made Orders against him (see page 182 paragraph 1 of Records). Significantly too, the witness testified that the 3rd Defendant told him and his investigations also revealed that the duo of Mr. Hubert and Mr. Bassey Bassey passed through him to the 2nd Defendant a gift of N30, 000, 000.00 during her daughters wedding. He admitted under cross examination that neither of these persons could in his investigations be linked with the case of Friday Ukpong V Chief of Naval Staff which the 1st Defendant heard. He admitted that while the Ukpong was in 2014, the gift from the duo as in 2015. He also admitted there was no link between the gentlemen was and the case of LINAS INT. LTD & 234 V FEDERAL GOVERNMENT OF NIGERIA & 2 ORS which the 1st Defendant heard.

Again, after the initial insinuation that the 1st Defendant caused suit no: FHC/CA/CA/32/2012 (Exhibit WW to WW2) formerly pending before him while sitting in Calabar to be transferred to his Court in Abuja upon his transfer to Abuja, he did when confronted with Exhibits III (ie Order of Transfer made by Hon. Justice Obile) and Exhibit JJJ (copy of letter of transfer of the case file) admit under cross examination (at page 179 last paragraph) that it is only today he got to know how the case was transferred from Calabar to Abuja.

Very significantly, the witness after his attention was drawn to certified true copy of proceedings in suit No: FHC/ABJ/CA/01/15: MR. CHUKWUWEIKE OKAFOR V GENERAL MOHAMMADU BUHARI ie Exhibit FFF and he contended that the Presidents Counsel in the said case by making a wedding gift to the 1st Defendant was not bribing him admitted that it would be speculative to say that gifts from common friends passed on to the 1st Defendant by the 3rd Defendant was gratification (see paragraphs 1 and 2 of page 176 of Records).

To cap his litany of evidence against the interest of the Prosecution and in support of the Defendants case, the witness after having been confronted with documentary evidence (ie Exhibit MMM, LLL, KKK and SSS) showing no N30, 000, 000.00 or tranch of N10, 000, 000.00 was paid into the 1st Defendants account to influence him in the course of his official functions particularly in relation to cases before him admitted the fact of his earlier testimonies being based on speculation. He said:-

With all I have now seen, my initial view on the matter was based on incomplete knowledge (see paragraph 2 of page 182 of Records).

It is worthy of note that despite these pieces of evidence which clearly show neither of the Defendants conspired to influence the 1st Defendant in the course of his official functions and did not pay any N30, 000, 000.00 or tranch of N10, 000, 000.00 to him for that purpose and which evidence were given by the Prosecution witnesses against its interest, the Prosecution did not declare or treat any of the witnesses as a hostile witness so as to entitle it to disclaim or discredit the witness. The result of this failure is that the prosecution is stuck with these evidence which as they were, totality destroyed any basis on which any inference of conspiracy could have been made. See ODI V IYALA (2004) 8 NWLR (PT. 875) P. 283.

If (as is the case) the prosecution in the charge alleges that the 1st to 3rd Defendants conspired to influence the 1st Defendant in the course of his official functions with the sum of N30, 000, 000.0 or three tranches of N10, 000, 000.00 and the same Prosecution though its witnesses as shown above testified the 1st Defendants Bank Statement of Account did not disclose any N30, 000, 000.00 or tranch of N10, 000, 000.00 paid into it to influence him in the course of his official duties and further that there is no link between any sum of N30, 000, 000.00 and any case before him, then there is no basis for the Court to make any inference or declare that there is circumstantial evidence in proof of the allegation of criminal conspiracy as contained in Count 1 of the Information.

In the light of the foregoing findings and analysis, the Court holds the prosecution has not discharged the burden of proof on it to place before the Court prima facie evidence in proof of the ingredients of the offence of Criminal Conspiracy as charged. The Defendants are in the circumstances discharged on that Count.

COUNT 2:
In Count 2 of the Information, the three Defendants are alleged to have between 11th March 2015 and 26th March, 2015 within the jurisdiction of this Court influenced the 1st Defendant in the course of his official functions as a Judge of the Federal High Court with the sum of N30, 000, 000.00 and thereby committed an offence contrary to Section 97 of the Penal Code Law.

The Courts first observation with regard to this Count (which is similar to Count 1) is that the 1st Defendant is alleged to have together with the 2nd and 3rd Defendants influenced himself in the course of his official functions as a Judge of the Federal High Court with a sum of N30, 000, 000.00.

The learned 2nd Defendants Counsel did point out in his Address and I do agree with him that it is inconceivable in law for a party or person to conspire to, or, (even without Conspiracy), influence himself in the course of his official function by giving himself (in this case N30, 000, 000.00) to himself. Except the 1st Defendant has split or dual personality, (and that is not the case of the Prosecution here), the Court cannot fathom how the 1st Defendant could influence himself in the course of his official functions by the sum of N30, 000, 000.00. It would have made more sense if the charge alleges that the 2nd and 3rd Defendants influenced the 1st Defendant with the aforesaid N30, 000, 000.00 in the course of his own official duties or that the trio influenced a fourth person.

This notwithstanding, as it is the duty of the Court to consider and determine every allegation or matter placed before it, particularly a case of this nature, the question is whether or not the Prosecution has placed before the Court prima facie evidence in proof of the grounds of the offence which include: –

(1). That the 1st, 2nd and 3rd Defendants jointly influenced the 1st Defendant.

(2). The influence was with the sum of N30, 000, 000.00.

(3). The influence was in relation to his official functions as a Judge of the Federal High Court.

A perusal of the Count shows it does not disclose which aspect of the 1st Defendants functions as a Judge the 1st to 3rd Defendants influenced him with the sum of N30, 000, 000.00. A perusal of the evidence of the Prosecution witnesses did not disclose one.

I take a judicial notice the official functions of a Judge are wide and varied. They include judicial acts done in open Court, administrative functions in Chambers, prison visits, encouraging settlement of disputes, etc. They are of infinite variety. If the Prosecution had in mind his official functions in relation to the judicial act of hearing and determining cases or proceedings before him, that is a non starter given the Pw16s testimony against the interest of the Prosecution to the effect in the course of his investigation of the case he did not know of any case in relation to which lodgements were made from the 3rd Defendants account to influence the 1st Defendant. The Pw8, 9 and 17 who are bankers and testified with respect to the 1st to 3rd Defendants accounts in their banks in their respective evidence conceded they could say the purpose of the inflows into or outflows out of the 1st and 2nd Defendants accounts with them. With specific reference to Exhibit PPP which is the 3rd Defendants Statement of Account, the Pw17 testified under cross examination by the 1st Defendants Counsel that he cannot locate or find the 1st Defendants name in any of the entries in Exhibit PPP. He said he cannot classify my transfer in the exhibit as illegal.

Given the foregoing findings, that none of the Prosecution witnesses indentified any funds per transfer from the 2nd and 3rd Defendants Bank Accounts or in any other way lead direct evidence of a N30, 000, 000.00. or tranch of N10, 000, 000.00 given to him in order to influence his official functions in any way, it cannot be said there is prima facie evidence in proof of the Court of the charge.

It needs be pointed out that any money paid into the Bank Account of the 2nd Defendant cannot without evidence clearly showing it was paid to her on behalf of or for the benefit of the 1st Defendant, be treated as money paid to the 1st Defendant to influence him in his official function.

Even if any such evidence exists (though records show none) unless and until it is shown the purpose of the payment was to influence him in the performance of a particular official function or functions, that count of the charge cannot be said to have been proved by prima facie evidence.

In coming to the above view, the Court does not feign ignorance of the evidence of the Pw16 to the effect that the 3rd Defendant told him that the mutual friends of theirs, to wit, Mr. Hubert and Mr. Bassey gave him the sum of N30, 000, 000.00 to pass over to the 1st and 2nd Defendants as gift during their daughers wedding in 2015. The Prosecution did not through the evidence of any of its witnesses prove the money was not a gift made to the duo during their daughters wedding or that it was intended to influence the 1st Defendant in the performance of his official duties. There is no evidence from the Prosecution linking that gift with any case before the 1st Defendant as disclosed in Exhibits VV, VV5, WW to WW3. As aforesaid, the Pw16 categorically declared that he found out there was no link between Mr. Hubert and Mr. Bassey and even their company with a case before the 1st Defendant. To the extent that the Pw16 admitted that the said Mr. Hubert and Mr. Bassey who gave the said gift of N30, 000, 000.00 to the 1st and 2nd Defendants as gift for their daughters wedding has no connection with any case before the 1st Defendant, it cannot be validly said the money was given to the 1st and 2nd Defendants to influence the former in the discharge of his official functions of which hearing and determination of cases form only a part.

Temptation is very strong for the Court to draw the inference that given the circumstances in which the N30, 000, 000.00 were paid in three tranches at different times the 3rd Defendant had matters before the 1st Defendant hence the lodgements were made with an intention to influence him in his official functions. This temptation however disappears in the light of the PPw16s evidence that he could not link the givers of the gifts with any case before the 1st Defendant. Even the 3rd Defendant who had some, had orders made against him. This is further reinforced by the Pw16s testimony under cross examination that in the circumstances in which the money was given (ie as wedding gift) it will be speculative to view it as gratification aimed at influencing him. This piece of being one by a Prosecution witness against the interest of the Prosecution, our legal system being adversarial, the issue of the 3rd Defendant having given the said N30, 000, 000.00 with the intention of influencing the 1st Defendant in his official functions must be resolved against the Prosecution in favour of the Defendants. The Pw16 having said it would be speculative to treat the gift as gratification in the circumstance, the Court agrees with the witness. As the Court cannot act or convict based on speculation or suspicion no matter how strong, the Court holds the evidence of the Prosecution does not disclose a prima facie case in proof of Count II of the Information for which the Defendants should be called upon to put up their defence.

In the circumstance, and by reason of all I have said above, that Count is dismissed and the Defendants discharged on it.

COUNTS 3, 4 AND 5
In Counts 3, 4 and 5, the 2nd Defendant is charged with Corruptly obtaining on behalf of the 1st Defendant between 11th March 2015 and 26th March, 2015 three distinct sums of N10, 000, 000.00 from the 3rd Defendant through her Account with number: 201/110160/1/0 domiciled at GT Bank Plc as gratification in the exercise of his official functions as a Judge of Federal High Court contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act.

Section 17(1) of the Corrupt Practices and Other Related Offences Act (The Act) provides thus: –

(1). Any person who corruptly-

(a). Accepts, obtains, or agrees to accept or obtain or attempts to obtain from any person for himself or for any other person, any gift or consideration as an inducement or reward for doing, forbearing to do or for having done, or for borne to do, any act or thing is guilty of an offence and shall on conviction be liable to five (5) years imprisonment.

The ingredients of the offence which the Prosecution ought to prove vide prima facie evidence are that the person charged corruptly: –

Accepted, obtained, agreed to accept or attempted to obtain from any person for himself or any other person.

(a). Any gift or consideration as an inducement, or

(b). Reward for doing, forbearing to do or for having done, or forborne to do any act or thing.

The gravamen of the Prosecution case with respect to this Count is that the 3rd Defendant through the 2nd Defendants account gave the 1st Defendant N10, 000, 000.00 in three tranches as gratification in the exercise of his official functions as a Judge of Federal High Court.

To the extent that the allegation is that the 3rd Defendant gave the monies aforesaid as gratification to the 1st Defendant in the exercise of his official function through the 2nd Defendants bank account with GT Bank Plc, the question that pops up again is, assuming (but without holding) the money was given as averred, was it with respect to which official function of the 1st Defendant. This is because the Count of the charge does not disclose which of the 1st Defendants official function contemplated by it ie if the money was given as gratification, was it as an inducement for doing, forbearing to do or for having done or forborne to do his official function or any act or thing.

The Court is left in the dark on these essential matters which must be proved vide prima facie evidence lest the 2nd Defendant will be discharged on it.

In paragraph 3.20 of page 26 of the Prosecutions Response to the 1st Defendants submissions, the Court could glean that the thrust of the Prosecutions contention in this Count is that the 2nd Defendant obtained the sum aforesaid on behalf of the 1st Defendant as a reward for favourable Orders made for the 3rd Defendant. The Prosecution relies on the evidence of Pw8, Pw9 and Pw16. It also relies on the provision of Sections 53 and 60 of the Act.

Before proceeding to determine the applicability of Sections 53 and 60 of the Act, it is proper to determine first that the evidence of Pw8, Pw9 and Pw16 disclose a prima case of the 2nd Defendant obtaining the aforesaid sums of money on behalf of the 1st Defendant as gratification for favourable Orders he made for the 3rd Defendant.

The Pw8 is Teslim Adekunle Ajuwon. He testified he is the Compliance Officer of Zenith Bank Plc. He tendered as Exhibit M the Statement of Account of Joe Agi & Associates for the period 15th February, 2008 to 31st October, 2016.

He testified that on 11th March, 2015, 16th March, 2015 and 26th March, 2015, there were Nip credits of N10, 000, 000.00 in favour of the 2nd Defendant in her Account with Guaranty Trust Bank from Joe Agi & Associates.

He says the transferee branch is not indicated in the Statement of Account. The signatory of the Joe Agi and Associates Account is the 3rd Defendant. The Accounts mandate was tendered and admitted as Exhibit L.

Under cross examination, he testified inter alia, that the beneficiary of the transaction of 5th January, 2015 is not indicated. It is correct the three sums of N10, 000, 000.00 were credited into the beneficiarys branch in the beneficiarys bank.

Under cross examination by the learned 3rd Defendants Counsel he said inter alia, that he knows the difference between N30, 000, 000.00 and N10, 000, 000.00. There is no transfer of N30, 000, 000.00 in Exhibit M from Joe Agi & Associates to the 1st Defendant. He could not see any transfer of N30, 000, 000.00 from Joe Agi & Associates to the 2nd Defendant in Exhibit M.

He does not know the purpose of the transfer of N10, 000, 000.00 in Exhibit M on 11th March, 2015, 26th March, 2015. He does not know the purpose of any of the transfers in Exhibit M. He does not see the commission of any crime in Exhibits K, L and M. He does not know of commission of any crime by any of the Defendants.

The Pw9 Suky Ambrose testified she is the Internal Control Officer of Guaranty Trust Bank. She tendered as Exhibit Q the undated GT Bank Statement Account of an unidentified Account Holder for the period 27th February, 2015 to 7th April, 2015.

She testified the Exhibit Q is the Statement of Account of the 2nd Defendant. There is a credit inflow of N10, 000, 000.00 from Joe Agi & Associates on 11th March, 2015 in Exhibit Q. Likewise for 16th March, 2015 and 26th March, 2015.

Under cross examination by the 1st Defendants Counsel, she said the 2nd Defendant is the holder of Exhibit P and he did not go to their head office in Lagos to open Exhibit Q.

Under cross examination by the learned 3rd Defendants Counsel she said inter alia, when shown Exhibit Q that it does not show the Account name and number of the customer.

She agreed there was no transfer of the lump sum of N30, 000, 000.00 from Joe Agi & Associates to the 2nd Defendant. As for the N10, 000, 000.00 transaction of 11th March, 2015 in Exhibit Q, she does not know the purpose of the transfer.

There was no transfer of any fund from Exhibit Q to the 1st Defendant. She does not know the purpose of the transfer of 16th March, 2015 in Exhibit Q. Likewise for that of 26th March, 2015.

From the forgoing testimonies of the Pw8 and Pw9, it is evident that though they acknowledged that Exhibit Q represents the 2nd Defendants Statement of Account and there are entries of N10, 000, 000.00 into it from Joe Agi & Associates on 11th March, 2015, and 16th May, 2015 and 26th March, 2015, both of them could not say the purpose for which those entries or funds transfer were made.

As the Pw8 and Pw9 who are Prosecution witnesses could not say the purpose for which the transfers of N10, 000, 000.00 were made from Joe Agi & Associates to the 2nd Defendants aforesaid Account with Guaranty Trust Bank (Exhibit Q), it cannot be said there is any evidence from them showing the transfer were monies paid by the 3rd Defendant to her with the 1st Defendant and as gratification for the favourable orders he made in the formers favour. The position of the law in criminal trials is that the Court reckons with hard core evidence placed before it as reason for anything and does not engage in speculations as to why a particular thing happened.

As foresaid, the Prosecution also relied on the evidence of Pw16 in support of its contention that the three N10, 000, 000.00 lodgements were made by the 3rd Defendant as gratification for favourable orders granted to him. The Court had earlier reviewed the evidence of Pw16 and its implications. The Court stands on it. As the evidence was categorical that there was no link between Hubert and Bassey who gave the N30, 000, 000.00 to the 1st and 2nd Defendants as wedding gifts for their daughters wedding and any case pending before or determined by the 1st Defendant and that his (witnesss) earlier position alleging that the Garnishee Orders nisi were made on account of the three N10, 000, 000.00 paid at various times proximate to the making of the orders do no longer hold the position or allegation having been taken or made based on incomplete knowledge of the matter, what stands out is that there is no prima facie evidence to show the tranches of N10, 000, 000.00 were paid as gratification for the 1st Defendant through the 2nd Defendant by the 3rd Defendant for favourable orders granted to the former.

The evidence of the Pw16 as earlier said is one against the interest of the Prosecution. The Prosecution having in the counts 3, 4 and 5 alleged that the 3rd Defendant paid the three tranches of N10, 000, 000.00 to the 1st Defendant through the 2nd Defendant for favour done to him (ie favourable orders) but the same Prosecution through its Pw16 testifies without contradiction that he found in the course of his investigation that the N30, 000, 000.00 were wedding gift given by Mr. Hubert and Mr. Bassey to the 1st and 2nd Defendants on the occasion of the wedding of their daughter and the duo or their company do not have any case before the 1st Defendant and that the gift do not qualify as gratification, then there is no basis to infer or come to the view that the 3rd Defendant gave the money to the 2nd Defendant as gratification. Undoubtedly, the gift does not qualify as gratification and not being one, the Prosecution cannot invoke the provision of Sections 53 and 60 of the Act to urge the Court to presume that the gift of N30, 000, 000.00 was corruptly given or accepted.

The prosecution did not place before the Court prima facie evidence showing the N30, 000, 000.00 was given by either the 3rd Defendant or any other person as an inducement. It is also not stated on the face of the charge that the 1st Defendant accepted or corruptly obtained from the 3rd Defendant through the 2nd Defendant the sums of money aforesaid as inducements or rewards for orders he granted in his favour. To the extent that these Counts of the Charge of the offence as provided in Section 17(1) of the Act and the Pw8, Pw9 and Pw16s evidence do not prove or reveal same, the Court holds those Counts of the Information have not been made out. The Prosecution having not proved the monies were paid as gratification to the 1st Defendant and he accepted, the presumption of corruptly receiving the monies as provided in Section 53 cannot arise. The factor which will activate the presumption provided for in Section 53B the fact of proof of receipt of the money by the affected person as gratification. In this case, in which gratification was not proved, the section cannot apply. The Prosecutions contentions to the contrary, with respect, does not hold water and is dismissed.

Before I drop my pen on this issue, I must point out that a critical reading of Sections 53 and 60 of the Act shows that it is not the intention of the legislature that mere giving of gift as provided in Section 17(1) of the Act, without proof that the gift is or is intended to be a gratification will give rise to the presumption in Sections 53 and 60 that the gift was corruptly given or accepted as an inducement or reward for something done or left undone. It cannot be the intention of the law maker that the mere giving of a gift without proof that it is or is intended to be an inducement or reward for something done or to be done, automatically qualifies the gift as a gratification for which the receiver is required in the last limb of Section 53 to prove the contrary. As aforesaid, the recipient of the gift will be required to prove the contrary only after it has first been proved that the gift was a gratification. To contend otherwise, as the prosecution has urged the Court in this case will amount to the Defendant being required to prove his innocence. This certainly will do violence to the provision of Section 36(5) of the 1999 Constitution of Nigeria which mandatorily provides that Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.

In an erroneous situation the contention of the Prosecution is seen as the intention of the legislature, then the said provisions of Section 53 and 60 of the Act stand in conflict with Section 36(5) of the Constitution and by the provision of Section 1(3) of the Constitution these Sections of the Act cannot stand. They are void to the extent of their inconsistencies with Section 36(5) of the Constitution. This Court so holds.

These said, the Court holds the Prosecution has not placed before the Court prima facie evidence in proof of the ingredients of the offence covered by Section 17(1) of the Act under which Counts 3, 4 and 5 of the Information are predicated. In the light of this, the said Counts 3 to 5 of the Information are dismissed and the 2nd Defendant discharged on them.

COUNTS 6, 7 AND 8
In Counts 6, 7 and 8 of the Information, the 3rd Defendant is charged with offering within jurisdiction to the 1st Defendant through the 2nd Defendants Bank Account domiciled with GT Bank Plc the respective sums of N10, 000, 000.00 as gratification in the exercise of his official functions as a Judge of the Federal High Court and thereby committed an offence contrary to Section 18(d) of the Corrupt Practices and Other Relate3d Offences Act 2000 (The ACT).

Section 18(d) of the Act provides thus: –

Any person who offers to any public officer or being a public officer solicits, counsels or accepts any gratification as an inducement or a reward for

(a). ….

(b). ….

(e). ….

(d). Showing or forbearing to show any favour or disfavour in his capacity as such officer is, notwithstanding that the officer did not have the power, right or opportunity so to do or that the inducement or reward was not in relation to the affairs of the public body, guilty of an offence shall on conviction be liable to five (5) years imprisonment with hard labour”.

The ingredients of the offence which the Prosecution must of necessity prove vide prima facie evidence are: –

(i). There was an offer of a gratification as an inducement or reward.

(ii). The offer was made to a public officer.

(iii). The offer was made to the public officer as an inducement or reward for showing or forbearing to show any favour or disfavour in his capacity as a public officer.

Again, as was the case with Counts 3, 4 and 5 of the charge, the Prosecution in Counts 6, 7 and 8 of the charge did not disclose for the guidance of the Defendants and the Court the particular official function(s) of the 1st Defendant in respect of which the 3rd Defendant is alleged to have offered him the respective N10, 000, 000.00 as gratification. This alone is fatal to those Counts of the charge as the Court and very importantly the 3rd Defendant ought to know the official function of the 1st Defendant in respect of which he is alleged to have offered the said gratification of N10, 000, 000.00 to him and for which he is being asked to put up a defence.

A disclosure of the said official function(s) in respect of which he allegedly offered the respective sums of N10, 000, 000. 00 and for which he is being called upon to put up his defence will accord to him the full compliments of fair hearing as provided in Section 36(6)(a) and (b) of the 1999 Constitution of Nigeria. For clarity, the Section provides thus: –

“36(6) Every person who is charged with a criminal offence shall be entitled to: –

(a). Be informed promptly in the language that he understands and in detail of the nature of the offence.

(b). Be given adequate time and facilities for the preparation of his defence.

If (as is the case) the Defendant in this case has not been informed in the charge the aspect of the 1st Defendants official functions in respect of which he is alleged to have offered him the respective sums of N10, 000, 000.00, can it, in all reasonableness, be said he has been informed in detail the nature of the offence for which he is standing trial? Can it, sentiments apart, be said he has been availed the facilities that will enable him prepare for his defence? The obvious answer to these questions is no. For these reasons alone, the 3rd Defendant ought not to be called upon to put up his defence as it will be improper to call him up to put his defence to a charge the full details of which do not meet the constitutional standard as set out in Section 36(6)(a) and (b). This is notwithstanding that he did not raise objections in this regard during his plea. In any event, he could not have raised the objection at that stage on account of the provision of Sections 22o and 221 of ACJA but the matter can be queried during at the No Case to Answer submission stage and determined in the Ruling or judgment under Section 396(2) as is the case now.

Assuming I am wrong in my above view and it can be said the Counts of Information as constituted meet the constitutional standard, what evidene has the prosecution placed before the Court with respect to same?

A perusal of the Prosecutions response to the 3rd Defendants No Case to Answer submissions shows it relies essentially on the evidence of Pw8, Pw9 and Pw16 as disclosing a prima facie case against the 3rd Defendant with regard to Counts 6 to 8 of the Information. The Court had earlier reviewed the evidence of these witnesses. At the risk of repetition, whilst Pw8 and Pw9 testified that the sums of N10, 000, 000.00 were transferred from the Account of Joe Agi & Associates into that of 2nd Defendant on 11th March, 2015, 16th March, 2015 and 26th March, 2015 both of them under cross examination admitted they did not know the purpose of those transfers. The Pw8 especially confirmed the transfers on their faces did not disclose commission of any criminal offence. With these pieces of evidence by the Prosecution witnesses, the Prosecution who proffered the charge of offering gratification of N10, 000, 000.00 on 11th March, 2015 and 26th March, 2015 against the 3rd Defendant by its own mouth admitted it did not know the reason or purpose for which each of the N10, 000, 000.00 was allegedly paid into the 2nd Defendants account. This in my respectful view amounts to a party blowing hot and cold at the same time. It amounts to speaking from both sides of the mouth. The result of this double speak is that the Prosecution evidence as espoused by the Pw8 and Pw9 do not support the Counts 6, 7 and 8 of the charge to justify the 3rd Defendant being called upon to answer to same.

The evidence of the Pw16 on its part presents a worse scenario. Here is a witness who in one breath told the Court that as the investigator of the case, his attention was drawn to lodgements of N10, 000, 000.00 in the account of the 2nd Defendant by the 3rd Defendant at times proximate to the pendency of suits the 3rd Defendant had before the 1st Defendant and he granted orders in favour of the former which related to huge sums of money, in another breath he admitted that he took the 3rd Defendant upon the lodgements aforesaid and the grant of the Orders and following his (3rd Defendants) response that the lodgements were wedding gifts made by Mr. Hubert and Mr. Bassey which resulted in his interrogating the said Mr. Hubert and Mr. Bassey he confirmed the duo did send the said sum of N30, 000, 000.00 as wedding gift to the 1st and 3rd Defendants for their daughters wedding and that in the circumstances, it will be speculative to say the gift was gratification.

The same witness after being confronted with Court processes per Exhibits VV to VV5, WW to WW2, III, JJJ, KKK, LLL and MMM relating to matters before the 1st Defendant admitted that the 1st Defendant indeed in Exhibit MMM made orders against the 3rd Defendant and that the 3rd Defendant could not have been paying him to make orders against him. On account of these, he admitted his initial view on the matter (ie the allegation that the 3rd Defendant paid the respective N10, 000, 000.00 to the 1st Defendant through the 2nd Defendant etc) was based on incomplete knowledge.

The Prosecution which alleged the 3rd Defendant paid the said sums of N10, 000, 000.00 as gratifications to the 1st Defendant in the discharge of his official functions having through the Pw16 made a volte face and said otherwise, it stands to reason that no reasonable tribunal can safely convict on the evidence of the said prosecution. There is no prima facie evidence in respect of Counts 6, 7 and 8 upon which this Court as a fact trier can stand to either find in favour of the Prosecution or direct the 3rd Defendant to put up a defence. Counts 6 to 8 of the Information in the circumstances fail and are dismissed. The 3rd Defendant is discharged on those Counts.

COUNT 9
In Count 9 of the Information, the 3rd Defendant is charged with corruptly giving the 1st Defendant through his son Ademide Ademola on or about 5th January, 2015 within jurisdiction a gift of a BMW Saloon 320! Valued N8, 500, 000.00 as an inducement in the exercise of his official function as a Judge of the Federal High Court and thereby committed an offence contrary to Section 17(1)(b) of the Corrupt Practices and Other Related Offences Act 2000 (The Act).

Section 17(1)(b) of the Act provides as follows: –

Any person who corruptly

(a). …..

(b). Gives or agrees to give or offers any gift or consideration to any agent as an inducement or reward for doing or forbearing to do or for having done or forborne to do, any act or thing in relation to his principals affair or business.

(c). ….

Is guilty of an offence and shall on conviction be liable to five (5) years imprisonment.

The ingredients of this offence which the prosecution ought to establish prima facie are: –

(1). The person charged corruptly gave or agreed to give or offered any gift to a person who is an agent of a principal.

(2). The gift was given as an inducement or reward for doing or forbearing to do or for having done or forborne to do any act or thing.

(3). The thing for which the gift was given was in relation to the agents principals affairs or business.

A good starting point in the consideration of this Count is whether or not there is evidence placed before the Court to show the 3rd Defendant corruptly gave the said BMW Saloon 320i to the 1st Defendant through his son who is proved to be his agent. If this is proved, then the issue of whether or not the car was given as an inducement or reward to the 1st Defendant for doing or forbearing to do an act in relation to his official functions as a Judge of the Federal High Court will arise for determination.

In respect of this Count, the Prosecution called the Pw1, (Ifeoma Eunice Ofonagolu) who testified inter alia that she is a sales Consultant with Coscharis Motors Ltd. The company sells luxury, premium and status cars including BMW and offers after sales services.

She, in the course of her duties held closing of sales talk with Ademide Ademola with regard to the kind of car he wanted. He requested her to issue a Proforma Invoice on BMW to him and attention it to Joe Agi. They started the sales talk in December 2014 and it spilled over to January 2015 when they concluded it.

She issued an invoice to Ademide Ademola in respect of the car at the price of N8, 000, 000.00 with VAT in the sum of N400, 000.00. The vehicle was paid for by Joe Agi & Associates in a one-off payment on 5th January, 2015. She confirmed with the companys Account with Zenith Bank Plc that a fund transfer in payment for the car was made from Joe Agi & Associates. She issued a receipt in respect of the transaction in the name of Ademide Ademola.

She issued a delivery note and the companys driver and Sales man had to convey the vehicle to the owner. The vehicles was delivered at 16 Babatunde Anjous Avenue, in Lekki Peninsular. She went with the driver to deliver the vehicle and when they did, they met Ademide Ademola. He received the vehicle and after ascertaining it was okay signed off.

Testifying further, she said Ademide asked her to attention the invoice to Joe Agi &

Associates which she did by e-mail. He gave her two e-mail addresses to wit: demideademola@gmail.com” and “princeniyiademola”. She issued mail and invoice to Ademide Ademola. While a copy of the Invoice date 5th January, 2015 was admitted as Exhibit A1, receipt dated same day was admitted as Exhibit A and Vehicle Release and Delivery check list Exhibit A3.

Continued Here

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