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
FEDERAL REPUBLIC OF NIGERIA………………COMPLAINANT
(1). ADENIYI FRANCIS ADETOKUNBO ADEMOLA
(2). OLABOWALE TOLUWATOPE ADEMOLA …..DEFENDANTS
(3). JOE ODEY AGI
Under cross examination by the learned 1st Defendants Counsel, the witness testified inter alia, that she met with Ademide Ademola personally and interfaced with him. As far as this contract of sale of BMW is concerned, it is one between Coscharis and Ademide Ademola. The Coscharis driver and her drove and delivered the vehicle to Ademide Ademola. As at 20th February, 2015, 27th March, 2015 and 30th April, 2015, the transaction between Coscharis and Ademide Ademola over the BMW has been concluded. Coscharis Nig Ltd did the licencing of the vehicle in the name of Ademide Ademola. The company did not in the course of the transaction engage in anything illegal.
She did follow up services with Ademide Ademola on the maintenance of the car.
Under cross examination by the learned Counsel for the 3rd Defendant the witness also testified that she had pre-sales talk with Ademide Ademola before the sale of the car. In that talk he chose the type of vehicle he wanted. That was in their show room in Lagos.
The company usually qualifies the prospective buyer based on his budget and what he requires. Ademide told her he needed a regular car. Ademide Ademola is an adult.
She interfaced with Ademide Ademola and only spoke with Joe Agi. She does not know Ademides father.
From the foregoing evidence of the Pw1 both in chief and under cross examination, can it be said she identified Ademide Ademola as an agent of the 1st Defendant with respect to the entirety of the transaction for the sale of the car? Can it be said Ademide or 3rd Defendant represented themselves as agents of the 1st Defendant? The witness did not in the remotest way say or find that Ademide Ademola negotiated for the vehicle as an agent of the 1st Defendant. Likewise, the totality of her testimony did not disclose the 3rd Defendant in paying for the car did so as an agent of the 1st Defendant. Her evidence also did not in any way reveal the vehicle after payment, was delivered to the 1st Defendant. Indeed, her evidence did not at any point link the 1st Defendant with regard to the purchase of the car.
The sole witness on this issue having not identified either Ademide Ademola or the 3rd Defendant as an agent of the 1st Defendant or stated the 3rd Defendant gave the vehicle to Ademide Ademola on behalf of the 1st Defendant as his agent, there is no need to proceed further as the cardinal ingredient of the Section 17(b) of the Act has not been supported by any iota of evidence. In the circumstances, it serves to useful purposes considering whether or not the vehicle was corruptly given by the 3rd Defendant to any agent of the 1st Defendant ie Ademide Ademola or that he acted as the 1st Defendant agent. Establishment of the agency relation shop with respect to the transaction between Ademide Ademola or even the 3rd Defendant and the 1st Defendant is a sine qua non which if not satisfied the charge predicated on Section 17(b) of the Act would collapse. There is no such evidence before the Court. The Prosecutions resort to the e-mail address of” princeniyiademola” mentioned by the witness as given to her by the 3rd Defendant is unavailing as rightly submitted by the defence Counsel, given that the e-mail address was not placed before the Court and admitted in evidence. Its contents are thus not known. The prosecution having mentioned it but failed to tender it for admission in evidence has with held same. The presumption is that in the circumstances, in which it was not tendered it would have been against the Prosecution if it was tendered. In the circumstances, the Prosecution cannot rely on it.
Besides, the Prosecution having failed to tender it in evidence cannot rely on it to urge a link or agency relationship between the 3rd Defendant, Ademide Ademola and the 1st Defendant. There is no clear cut evidence establishing the address belongs to and is being used by the 1st Defendant. There is no art to decipher its contents in its absence.
For reasons of the foregoing, the Court holds Count 9 of the Charge is bereft of prima facie evidence in support of it to warrant the 3rd Defendant answering to it.
The Count equally fails and is dismissed. The 3rd Defendant is discharged on that Count.
In Count 10, the 1st Defendant is charged with having in his possession as a public servant within jurisdiction the sums of N54, 000, 000.00, $121, 279, £80, 1, 010 Rupees, 4, 400 Euros being gratifications received in the exercise of his official functions as a Judge of the Federal High Court and thereby committed an offence contrary to Section 24 of the Corrupt Practices and Other Related Offences Act (The Act).
Section 24 of the Act provides thus: –
Any person who, whether within or outside Nigeria, whether directly or indirectly, whether on behalf of himself or on behalf of any other person, enters into, or causes to be used, or holds, receives, or conceals any property or any part thereof which was the subject matter of an offence under Sections 10, 11, 13, 14, 15, 16, 17, 18, 19 and 20 of this Act is guilty of an offence and shall on conviction be liable to imprisonment for a term not exceeding five (5) years.
The essential ingredients of the offence which the prosecution is expected to lead prima facie evidence in support thereof are: –
(1) The Defendant in his capacity as a Judge of Federal High Court:
(i). Either by himself or through someone else either within or outside Nigeria entered or caused to be entered into any dealing in relation to any property.
(ii). Uses or causes to be used or holds or conceals any property which is the subject matter of an offence under Sections 10, 11. 13 to 20 of the Act.
In support of this Count, the Prosecution called the Pw2 and Pw16 and essentially relies on their testimonies. It also contended that given the recoveries made in the 1st Defendants residence even while sitting as a Federal High Court Judge it has shown the 1st Defendant collects gifts through proxies as a Judge and these influence him in the performance of his functions. It contends the offence can be proved through circumstantial evidence. That with regard to the Defendants contention that no one claimed ownership of the money, there is no requirement in the offence that the owner of the property must be identified.
That the Court should not at this stage be concerned with whether or not the evidence is true or not or sufficient to convict. Once there is material linking the 1st Defendant with the offence, he should be called upon to defend the charge.
By ingredients of the offence set out above, the Court holds the view the most cardinal of them is proof that the sums of money mentioned in the Court were received or being held by the 1st Defendant as a result of an offence or illegal conduct pursuant to the provisions of Sections 10, 11, 13 to 20 of the Act. Unless there is prima facie evidence in proof of this, there is no basis for the 1st Defendant to be called to answer to this Count of the charge.
As aforesaid, the Prosecution relies on the evidence of Pw2 and Pw16 in this regard. What do their testimonies disclose?
The relevant parts of the evidence of the Pw2 is that on 9th October, 2016 following instruction from his superiors, he led a search operation at the residence of the 1st Defendant. He did not know him at that time. Following the refusal of the 1st Defendants private security operative to open the gate to the premises which is no. 306 S. O. Ogbemudia Crescent, Zone E, Apo Legislative Quarters, he and members of his team forced the gate open. They also had to force open the door to the main house and met the 1st Defendant in the masters bedroom upstairs some minutes after 12midnight. He introduced himself and his mission to the 1st Defendant as well as showed him their Search Warrant. The 1st Defendant insisted on calling his lawyer which he did. The lawyer is the 3rd Defendant.
They conducted searches in the various rooms in the house from down stairs up to the masters bedroom upstairs. In one of the rooms downstairs they found the sum of N39, 500, 000.0. They determined it was N39, 500, 000.00 because each pack was for N500, 000.00 and they counted 19 packs. They were searched by the 1st Defendants cook by name Ken before they embarked on the searches. In another room, they found the sum of N8, 500, 000.00 which was in N1, 000.00 denominations.
In the masters bedroom they found in a black bag the sum of N6, 000, 000.00, 121, 279 USD, 4, 400 Euros, £80 and 1, 010 Indian Rupees.
He made an inventory of their recoveries at the back of the Search Warrant and he and the 1st Defendant signed it. The Search Warrant was tendered and admitted as Exhibit B.
Under cross examination, the witness testified inter alia, that they were in the 1st Defendants house from 8.00pm to 12midnight. He did not have in his possession a copy of the complaint made against the 1st Defendant. He has not read any which predicated their action. He is not aware there was a complaint which precipitated their action.
Testifying further, he said nobody complained to them that he or she lost $121, 297. Likewise for the Naira, Pounds and Rupees he mentioned they recovered.
Now, from the foregoing evidence of the Pw1, can it be said it disclosed evidence of the 1st Defendant having come upon or holding the monies he mentioned illegally. Does it show in any way that the monies were subject matter of an offence under Section 10, 11, 13 to 20 f the Act? There is no such evidence by the Pw2.
With respect to the evidence of the Pw16 which the Court had previously reviewed, there is nothing to show that the monies mentioned in Count 10 of the charge (ie the Naira, Dollars, Rupees, Pounds and Euros) were received by the 1st Defendant pursuant to an illegal transaction or that any part of them was received as subject matter of an offence under Sections 10, 11. 13 to 20 of the Act.
It is instructive that the gravamen of the evidence of Pw16 was with regard to the three trancnes of N10, 000, 000.00 paid into the 2nd Defendants bank account by the 3rd Defendant, the orders which he alleged the 1st Defendant gave in his favour proximate to the times the three tranches of N10, 000, 000.00 were paid. He only made a brief reference in his evidence in chief to the above sums of money which the Pw2 said he recovered from the 1st Defendants residence and did not state whether or not they are products of illegality (see paragraph 2 of page 15 of Records).
Under cross examination, he admitted that he is aware that Judges who travel abroad for courses and programms are entitled to estacodes which could be paid in Pounds, Dollars, Euros, Rupees and the money when given to the recipient belongs to him. His evidence therefore, contrary to the Prosecutions Counsel contention, did not cast the aforesaid monies recovered from the 1st Defendants residence in the colours of illegality.
It is worthy of note that while the prosecution in the said Count 10 accuses the 1st Defendant of holding the monies as gratification received in the exercise of his official functions, the same Prosecution through its Pw13 (Mr. Awoyeni Kazeem Adisa) admitted that both the British Government and the Federal High Court periodically organize programms for Judge on terriorism. That estacodes are paid to Judges and when paid it belongs to the Judge. That the estacodes are paid in foreign currencies especially Dollars in the Federal High Court. That the recipient of the estacode can convert it to the currency of the country he intends to visit. This includes Euros, Pounds and Rupees. The 1st Defendant was paid estacodes just like other Judges for seminars, conferences he attended. Judges of Federal High Court were paid estacodes in Dollars in 2015. A Judge can decide to keep the estacodes paid in Dollars at home or change them to local currency.
A sober consideration of the evidence of the Pw13 shows it is one which rather than support Count 10 of the charge derails it. if the same prosecution which accuses the 1st Defendant of holding the monies aforesaid as gratification through the Pw13 turns around to say the 1st Defendant as a Judge of Federal High Court received estacodes in foreign currencies in 2015, when paid to him it belonged to him and when paid the estacodes he could choose to keep same at home or change them to local currency, then this Court as a treasonable Count and fact trier has no basis to call upon the 1st Defendant to explain the source of the monies mentioned in Count 10 of the charge said to have been recovered from his residence by the complainant. The same Complainant/Prosecution which raised the allegations, through the Pw13 provided the answers to it. Nothing remains for 1st Defendant to explain in the said Count 10. Consistent with the provisions of Section 303(a) and (c) of the ACJA, the Court holds the view that no reasonable Court or Tribunal would convict the 1st Defendant on the basis of the evidence the Prosecution adduced in support of Count 10 of the Charge. The count in the circumstances also fails and is dismissed. The 1st Defendant is discharged on it.
COUNTS 11 AND 12
In Counts 11 and 12, the 1st Defendant is charged with transferring, in his capacity as a public servant the sum of N85, 000, 000.00 and 90, 000, 000.00 from his Account with Guaranty Trust Bank to Franco Dan Parks which sums of money form the proceed of unlawful act and thereby committed an offence contrary to Section 24 of the Corrupt Practices and Other Related Offences Act 2000.
I had earlier set out the words of Section 24 of the Act and the ingredients of the offence that ought to be proved by the prosecution on prima facie evidence to justify the 1st Defendant being called upon to answer to same. They bear no repetition here.
The gist of the Prosecutions Counsels submissions with regard to this Count vis-a-vis the evidence it adduced is that by the evidence, the 1st Defendant spent money which by his salaries and enrolments cannot be justified as legitimate income. He urged the Court to draw this inference placing reliance in Exhibits XXX, YYY and ZZZ.
As earlier said, under the provision of Section 24 of the Act, the cardinal issue is whether or not the property or money forms, or is derived from an illegal or unlawful act.
The Pw10 (Mr. Malik Olatunde) testified with respect to Counts 11 and 12 of the Charge. His testimony inter alia, is that he works as a banker with Guaranty Trust Bank Plc. He tendered the original copies of the 1st Defendants Statement of Account with the bank for the period 7th January, 2013 to 24th November, 2016 as Exhibit T. He identified the transaction in it of 24th February, 2014 as being payment of the sum of N90, 000, 000.00 to Don Parker Properties. He also identified the entry whereby the sum of N85, 000, 000.00 was transferred from the Account to Don Parker Properties. He said the 1st Defendant, going by Exhibit S is the sole signatory to the account.
Under cross examination by the learned 1st Defendants Counsel, he stated, inter alia, that Don Parker is also the banks customer and by the entry of 24th February, 2014, it is indicated as a properties company. There is nothing in Exhibit T to show the transaction with Don Parker is illegal. There is nothing in it showing the payments made to it from the 1st Defendants Account were illegal.
He stated further, that he does not know of any regulation or law which prohibits a civil servant from paying for properties from his Account or which places a ceiling on the value of a property which could be paid from the Account of a Civil Servant.
He identified Exhibit T as High Performing Account which means monies could be paid into it from multiple sources. It is possible for monies to be paid into an account from proceeds of sales of properties of the Account owner or inherited properties.
When cross examined by the 3rd Defendants Counsel, the witness identified the transaction of N90, 000, 000.00 and N85, 000, 000.00 of 24th February, 2014 in Exhibit T and said the transactions were done in their corporate headquarters which is Plot 635, Akin Adeosa Street, Victoria Island, Lagos.
Again, like Count 10 of the charge, the Prosecutions witness did not testify as to any illegality attaching to the transaction of 24th February, 2014 in Exhibit T. He affirmed there is nothing showing the transactions were illegal.
The learned Prosecution Counsel did contend that it called evidence showing the 1st Defendants emoluments and that going by it the expenditure in Exhibit T could not have been from legitimate source.
The Court notes that the learned Counsel in his said submission (paragraph 7.1 of page 39 of his Address) stated that the going by the evidence of the 1st Defendants emoluments the Prosecution adduced, the monies spent in Exhibit T “could not have been from legitimate sources. There is no gainsaying that the aforesaid submissions by the learned senior Counsel is not sure footed having stated that the monies spent could not have been from legitimate sources.
Notwithstanding that this is a criminal trial in which the Court ought not to uphold submission clothed in speculation, the Court proceeds to consider the evidence of the Prosecutions witness with regard to the salaries and emoluments of the 1st Defendant.
The Pw13 who is the Chief Accountant of the Federal High Court where the 1st Defendant serves as an Honourable Judge in his evidence in chief said that Judges are on consolidated salaries derived from the Consolidated Revenue Funds. The Prosecution Counsel tendered from the Bar the 1st Defendants salaries and emoluments for the period January 2009 to December 2016 as Exhibit LL.
The witness testified that the net monthly salary of the 1st Defendant is N528, 638.78. The annual salary is N6, 343, 665.12.
Prior to 2009, salaries and emoluments were prepared manually. Apart from the monthly salaries, the 1st Defendant is paid other emoluments. He is paid furniture allowance once every four years to the tune of N5, 413, 220.00. He is also entitled to N305, 000.00 as monthly welfare allowance.
He is also entitled to medical treatment/check up overseas once a year for which estacodes allowance are paid. The figure varies from year to year due to fluctuation in exchange rates. The air fare last year was N1, 600, 000.00. The Judges were paid 6, 300 USA Dollars as estacodes. The 1st Defendant is also paid annual leave allowance of N180, 474, 00 as well as duty tour allowances. He had not done a calculation of the total of these payments.
Under cross examination by the 1st Defendants counsel, he stated that estacodes when paid to a Judge is his money. Exhibit LL does not contain the estacodes and allowances the 1st Defendant received from externally funded conferences, workshops, seminars and others. Estacodes are part in foreign currencies especially Dollars in the Federal High Court. The recipient of the estacode can convert it to the currency of the country he intends to visit. That will include Euro, Pounds and Rupees. Exhibit LL does not include the salaries, estacodes and allowances of 1st Defendant for the years 2004 to 2008.
The incomes accruing to Judge from investments in blue chips, his properties, estate of mother, father, grandfather will not be reflected in Exhibit LL.
Under cross examination by the learned 3rd Defendants Counsel, the witness stated, inter alia, that he cannot dispute the 1st Defendant became a lawyer in 1981 and was in active legal practice from then to 2004 when he became a Judge. period not less than 20 years. It is reasonable to expect a lawyer who has so practised law to have some assets and investments. Incomes from such investments will be legitimate incomes though he is a Judge.
The name Ademola is famous in Nigeria. It is notorious the family has plenty of inheritances. There is nothing in the Federal High Courts Accounts Department that prevents the 1st Defendant from benefitting from the familys inheritances as a Judge. (See pages 129 to 132 of the Records).
Testifying with regard to the 1st Defendants sources of income, the Pw16 under cross examination by the 1st Defendants Counsel averred that he is aware that Judges who travel abroad for courses and programmes are entitled to estacodes which are paid in Pounds, Dollars, Euros, Rupees etc and when paid, it belongs to the recipient who spends it as he pleases.
He stated that he interviewed the principal partner of Oshodi & Oshodi, Johnson & Johnson, Candour Attorneys. The Principal Attorney in Candour Attorneys confirmed to him he is a Counsel to the 1st Defendant and that GT Ademola is their uncle and she rendered legal services on the 1st Defendants requests. He (the witness) was satisfied she rendered legal services on the 1st Defendants request and they included property related matter.
He found out that the 1st Defendant was a beneficiary from the estates of his grandfather and father. The former was not only a distinguished lawyer but also rose to become the Chief Justice of Nigeria.
The 1st Defendant told him his legitimate income is not derived from only his income as a Federal High Court Judge.
In the course of his investigation, he saw the sum of $520, 000 in the 1st Defendants account. From his investigations, that money was lodged in by Olabode Johnson of Johnson & Johnson Partners. From the records provided by the law firm, he found out the money was in like sum shared to three brothers with the 1st Defendant as one of them. By the Johnson & Johnson records, he agrees the money belonged to the 1st Defendant.
Testifying further, the witness said from available evidence, he can say the 1st Defendant has other sources of income except his salaries as a Judge. He can confirm the $520.000 is part of the proceeds from the sale of the properties of Justice Ademola and his two other brothers.
From the foregoing testimonies of the Prosecutions Pw13 and Pw16, it is discernible the same Prosecution which in Counts 12 and 13 of the Charge alleges the 1st Defendants transfer of the sums of N90, 000, 000.00 and N85, 000, 000.00 are proceeds of unlawful act, not only failed to disclose the unlawful act from which the monies were derived but pushed to the fore the various other legitimate sources of income of the 1st Defendant which render it reasonable he can afford the said sums of N90, 000, 000.00 and N85, 000, 000.00 mentioned in the Counts. As rightly pointed out by the Defendants Counsel the Prosecution witnesses affirmed the other lawful income of the 1st Defendant other than his salaries.
It cannot in all reasonableness be said that a man who earns the amount of salaries in Naira, estacodes and allowances in Dollars and other foreign currencies as a Judges practiced law as a legal practitioner for over twenty years during which he made investments before becoming a Judge, inherited real estates from a grandfather who rose to become a Chief Justice of Nigeria and a father who rose to become a Justice of Court of Appeal and has been earning the salaries, estacodes, and allowances above since 2004 when he was elevated to the bench; does not possess the capacity or even goodwill (not related or arising from his official functions) to muster the sums of N90, 000, 000.00 and N85, 000, 000.00 to invest in a property. It must be said loud and clear that while the nature of a Judges duties makes him to live solidary and humble life, that does not mean that every Judge is a church mouse and cannot be blessed with a rich, affluent and prodigious background from which he can live a decent life or make investments.
In the light of the foregoing evidence of the Prosecutions witnesses, the Court holds that rather than prove the 1st Defendant cannot legitimately afford the said sums of N90, 000, 000.00 and N85, 000, 000.00 they affirmed he can. In the circumstances, the Court does not consider that the cardinal element in Counts 11 and 12 which is proof that the monies mentioned therein were obtained from unlawful sources has been proved prima facie. It has not been so proved. In the circumstances the said Counts 11 and 12 are dismissed and the 1st Defendant discharged on them.
In Count 13, the 1st Defendant is alleged to have on or about 21st February, 2014 within the jurisdiction of the Court in his capacity as a judicial officer attempted to obtain gratification in the sum of N25, 000, 000.00 from one Sanni Shaibu Teidi as a motive for showing favour in the exercise of his official functions contrary to Section 115(b) of the Penal Code Act, Cap 532 Laws of FCT.
Section 115(b) of the Penal Code provides as follows: –
Whoever being or expecting to be a public servant accepts or obtains or agrees to accept or attempts to obtain from any person for gratification whatever whether pecuniary or otherwise, other than lawful remuneration, as a motive or reward
(b). For showing or forbearing to show in the exercise of his official functions favour or disfavour to any person, or
Shall be punished
(i). With imprisonment for a term which may extend to seven years or with fine or with both,
(ii). If such public servant is a public servant in the service of the Government of the Federation acting in a judicial capacity or carry out the duties of a Police, Office, with imprisonment for a term which may extend to fourteen years or with fine or with both.
S.S. Richardson at page 74 of his book NOTES ON THE PENAL CODE LAW states the ingredients of the offence which must be proved and which I adopt as follows: –
(I). That the accused at the time of the offence was, or expected to be a public servant.
(II). That he accepted or obtained or agreed to accept or attempted to obtain from some person a gratification for himself or any other person.
(III). That the gratification was not legal remuneration.
(IV). That he accepted the gratification as a motive or reward:
(a). For doing or forbearing to do any official act; or
(b). For showing or forbearing to show in the exercise of his official functions favour or disfavour to someone; or
(c). For rendering or attempting to render any service or disservice to someone with any Department of the public service or with any public servant.
From the ingredients of the offence and particulars of same as set out in this Count of the charge, the duty is on the Prosecution to prove prima facie that the 1st Defendant and no one else attempted to obtain the said gratification of N25, 000, 000.00 from Sani Shaibu Teidi on or about 21st February, 2014 as a motive for showing favour in his official functions.
The Pw6 (Dr. Sani Shiabu Teidi) and his wife (the Pw7) testified in aid of the Prosecutions case with respect to this Count of the Charge. One common thread running through their testimonies is that one Kingsley O acting for the 1st Defendant was calling the Pw7 on telephone to bring the sum of N25, 000, 000.00 so that the 1st Defendant could approve his application for bail in the criminal matter he had before him. None of them said the 1st Defendant called the Pw7 or even the Pw6 to make the demand.
None of them led any evidence showing any extra judicial contact with the 1st Defendant all through the Pw6s trial in the 1st Defendants Court.
Since the ingredients of the offence require that there must be proof that the accused (Defendant) himself attempted to obtain the gratification and in the said Court 13 of the charge the 1st Defendant is alleged to have attempted to obtain the gratification whilst the Pw6 and Pw7s evidence showed it was one Kingsley O who made the attempts through the telephone calls aforesaid, the Prosecution has not adduced the requisite prima facie evidence that will require the 1st Defendant to put up a defence. The calls must be shown to have been made by the 1st Defendant for the prima facie case to be said to have made out in that Count.
The Prosecution case is made more hopeless by the fact that all the through the Pw6 and Pw7s testimonies there is no direct evidence showing the said Kingsley O. acted on behalf of the 1stDefendant. The Pw7 in her evidence under cross examination said that as the said Kingsley O would always call on the eve of the Pw6s case and predict correctly what would happen in the Court the next day, she concluded maybe he could be relating with the Judge. This is clearly a piece of evidence founded on speculation or suspicion which this Court as a reasonable criminal Court cannot act on.
In the light of the foregoing, the Court holds the Prosecution failed to lead evidence in support of the Court sufficient for the court to call upon the 1st defendant to put up his defence to it. The count is accordingly dismissed and the 1st defendant discharged with respect to it.
Count 14, is a repetition of count 9 save for the fact that whilst count 9 is predicated on Section 17(1) (b) of the Corrupt Practices and other related Offences Act 2000, Count 14 is predicated on Section 17(1)(a) of the same Act. The facts being same and the Court adopts its earlier findings in consideration of Count 9 and holds there is no prima facie evidence in proof of Count 14 to justify the 1st Defendant being directed to answer to same. The Count is equally dismissed and the 1st Defendant discharged.
In Count 15, the 1st defendant is alleged to have on or about 7th October 2016 within the jurisdiction of the court had in his possession one Pump Action riffle with serial number AVAR MAGNUM 6084 without a valid licence and thereby committed an offence contrary to Section 3 of the Robbery and Firearms ( Special Provisions Act) 2004. Section 3 of the Robbery and Firearms (special Provisions) Act provides as follows:
(1). Any person having a firearm in his possession or under his control in contravention of the Firearms Act or any order made thereunder shall be guilty of an offence under this Act and shall upon conviction under this Act be sentenced to a fine of Twenty Thousand Naira or to imprisonment for a period of not less than 10 years or to both.
(2). For the avoidance of doubt Section 28 of the Firearms Act shall subject as provided in Section 12(4) of this Act have effect notwithstanding subsection (1) of this Section.
As rightly pointed out by the learned senior counsel for the 1st Defendant, though the provision of Section 3 of the Robbery and Firearms (Special Provisions) Act is wide but the prosecution has in framing his charge limited the alleged offence to possession of the alleged gun without a valid licence.
From this, it is deducible that what call for determination is whether or not the 1st defendant was in possession of the firearm aforesaid on the said date without a valid licence.
The prosecutions PW2, PW14 and PW16 essentially testified with regard to the above count.
The summary of the evidence of PW2 as regards the issue of possession of firearms is that while he and members of his team were searching the residence of the 1st defendant on 7th October 2016 they found two black Pump Action riffles and 35 live cartridges of ammunition. They were contained in two separate bags. The Cartridges were contained in one of the bags. One of the firearms is for A.R. Mohammed while the other is for the 1st defendant.
On arriving at their office and before handing over, he cleared both pump action riffles, conducted the necessary safety precautions to ascertain the arm was a true fire arm and not a toy. He concluded they were both pump action riffles capable of discharging live ammunitions.
Under cross examination by the learned 1st defendant counsel, the witness said, inter alia, that they recovered two licences for the two pump action guns. The licences showed the two guns were registrered in the name of the 1st defendant and Hon. Justice Mohammed.
The authority responsible for registration of firearms by law is the Nigerian Police. Where the Police issues a licence to a person to carry a firearm he has a right to carry it pending the expiry date. It is correct that licences issued by the Police for Firearms are renewable. The act of renewal upon application is that of the Police.
He admitted he did not find out if there was a judge of the Federal High Court by name Hon. Justice A.R. Mohammed. Their investigations did not cover their ascertaining the identity of Hon. Justice A. R. Mohammed and that a licence for a gun was issued in his name.
Under cross examination by the 3rd defendant counsel the witness stated that the pump actions guns and licences were recovered at No 30 B.S.O. Ogbemudia Crescent, Apo Zone E, Abuja.
In his own evidence in chief, the PW14 testified, inter alia, that he is a Ballistician and the only surviving Ballistician in Nigeria.
On 30th January, 2017 he was invited by the DIG ( D Department ) to the Forensic Office in Abuja to examine some firearms which he did. He can identify the firearms. They are automatic pump action Aver Magnum Short guns with serial numbers 6084 and 6284. The magazine extension of the guns are capable of taking eight rounds of 12 gauge cartridge and they fall under prohibited firearms. Their working mechanisms are in order and they are therefore lethal weapons. The firearms cannot be ordinarily licenced. They can only be licenced by the president on discretion. He reduced his findings in writing. His report was admitted as Exhibit MM.
When cross examined by the learned 1st defendants counsel, the witness stated inter alia, that he did not state the Section of the law on the basis of which he said that only the President can licence the guns. He does not know the year the Firearms Act came into effect.
In the course of his examination of the guns, he was not shown any licence for the guns. That is because his work does not relate to licencing of guns. His work is to examine firearms, identify and classify them and issue a report. The issue of licence is the duty of the IPO. It is the Police that is responsible for issuance of licences for firearms.
Concluding he said he does not know when this suit started. All he knows is that they called him to examine the guns and he did.
In his own evidence in chief the PW16 testified with respect to the guns that in the course of his investigation he interviewed the 1st defendant and with respect to the guns he (the 1st defendant) said men from the British High Commission and the DSS advised that some judges should procure firearms based on the sensitivity of their duties as anti-terrorism judges. He admitted ownership of one of the riffles and asserted the one bearing A.R. Mohammed on the licence belongs to his colleague Hon. Justice A.R. Mohammed.
He said these weapons had 35 live cartridges and the 1st defendant disclosed they were supplied by a licenced Gun Dealer by name Humanitex Ltd.
He examined the licences and found they bore expiry date which was December 2005. In response to this, the 1st defendant said he had renewed it and was going to furnish him with the renewal which he did not.
When he inquired why he was in possession of the second firearm the 1st defendant responded that on two occasion, Hon Justice A.R. Mohammed (the owner) made efforts to collect it but he was out of station and thereafter Hon. Justice Mohammed was involved in an accident and it would have been insensitive of him to ask him to come for his weapon given his disposition. The 1st defendant wrote a statement which was admitted as Exhibit QQ.
Under cross examination by the learned 1st defendants Counsel, the witness said when shown Exhibit JJ that it is a treasury receipt issued by D7 State Headquarters Ikeja. The 1st defendant was in page 3 of it authorized to bear the type of gun being Aver Magnum.
When show Exhibit V, he said the gun (Exhibit V) is the gun to which Exhibit JJ applies. He confirmed Exhibit JJ emanated from the Police.
When shown the gun licence (Exhibit W) that bears the name of A.R. Mohammed he said Exhibit W relates to SBSJ Aver Magnum 6084.
Dwelling further, the witness testified that in the course of his investigation he came across A.R. Mohammed. When shown the picture in Exhibit JJ, he said the photograph is that of the person he interviewed.
He further said that he took a statement from A.R. Mohammed and in it he said he was approached by a gun dealer recommended by the 1st defendant and the former offered to supply the firearms to him and he would pay later.
When shown two documents he admitted the two documents are current licences for Exhibits V and W. While a copy of the Firearm licence issued on 10th October 2000 to the 1st defendant was admitted as Exhibit DDD that dated 5th October 2000 issued to Hon. Justice A.R. Mohammed was admitted as Exhibit EEE.
The witness further testified that he received the Ballisticians Report (Exhibit MM). That the exhibit is dated 3rd February 2017 while this charge was filed on 14th Nov. 2016. He is aware there was an earlier forwarded Ballisticians Report which his Service was not satisfied with.
Concluding he said that in the course of his investigation, he found out the 1st defendant was presiding over anti- terrorism cases and Hon. Justice Mohammed had a car accident.
From the foregoing testimonies of PW2, PW14 and PW16, it is discernable the PW2 and PW14 did not adduce any evidence showing the licence for the guns (Exhibit V and W) were expired. Only the PW16 did. He said they had expiry date of December 2015. Whilst he tendered the 1st defendants handwritten statement as Exhibit QQ, the licences for the two guns were however admitted as Exhibit JJ. The current licences were admitted as Exhibits DDD and EEE.
It is the contention of the Prosecution that at the time the 1st defendant wrote his statement at the DSS office on 10th October 2015 the licence for the guns were expired and the 1st defendant promised to furnish the PW16 with the renewal.
The PW16, according to the prosecution, said this in his evidence in chief. That the 1st defendant did not so furnish the PW16 with the renewed licence until when the PW16 was cross examined by the 1st defendants counsel and the purported licence for the fun was produced and admitted as Exhibit DDD.
The said Exhibit DDD of the 1st defendant is not a renewal but a fresh gun licence which was issued to him on 12th October 2016.
He contended that illegal possession of arm is a strict liability offence. What is needed to be shown at this stage of the prosecutions case is possession and not ownership. When the house of the 1st defendant was searched on 7th October 2016, he had not renewed the licence. Likewise for 10th October 2016 when he wrote his statement. The implication of the non renewal of the licence from 1st January 2016 to 6th October 2016 is that possession of the firearms Exhibit V by the 1stdefendant is illegal. He had no valid licence to hold firearms. The fact that he subsequently procured a new licence on 12th October 2016 is inconsequential. The making of Exhibit DDD does not cure the defect in possession as the new licence has no retrospective effect.
In his reply on points of law, the learned 1st defendants counsel submitted inter alia, that Exhibit DDD and EEE carry with them a presumption of regularity under Section 168(1) and (2) of the Evidence Act 2011.
I have given due consideration to the foregoing contentions. A look at Count 15 of the Charge shows the 1st defendant is charged with the possession of one Pump Action riffle with number AVAR MAGNUM 6084 without a valid licence. The charge having been predicated on possession of firearm without a valid licence while the Robbery and Firearms (Special Provisions) Act limits the offence under the Act to a person having a firearm in his possession or under his control in contravention of the Firearms Act or any order made thereunder, the count of the charge as couched by adding without valid licence took it outside the ambit of Section 3 of Robbery and Firearms (Special Provisions) Act. It is my respectful view that if the charge is brought pursuant to any order made pursuant to Section 3, that order ought to have been specifically mentioned in the charge for the guidance of the court and the 1st defendant. It is the view of the court that while Section 3(1) of the Robbery and Firearms (Special Provisions) Act envisages that a person who is in possession of Firearm contrary to the Firearms (Special Provisions) Act, be sentenced to a fine of twenty thousand Naria or imprisonment of ten years or both, the charge which has included the element of possession without valid licence is in conflict with the provision of Section 3 of the Robbery and Firearms (Special Provision) Act. The Prosecution which added possession of firearm without valid licence, if the addition is predicated on any law or order or regulation (whether made pursuant to the Act or otherwise) ought to have stated so in the charge. As it is now, it is the humble view of the Court that the Charge is inconsistent with the provision of Section 3 of the Robbery and Firearms (Special Provision) Act. This is particularly so as Section 28 of the Firearms Act referred to in Section B(2) of the Robbery and Firearms (Special Provisions) Act does not deal with possession of fire arm without valid licence, but rather the need for such a holder to produce the licence or permit relating to the gun upon request by a Police officer. Under Section 29, the Police officer is to allow the person reasonable time to comply.
Different considerations would have applied if the charge is with respect to the 1st Defendant being in possession of firearms and failed to produce the licence relating to it upon demand by a Police officer after a reasonable time.
The effect of the foregoing findings is that the Prosecutions Count 14 is inconsistent with or not in agreement with the provision of Section 3 of the Robbery and Firearms (Special Provisions) Act it is predicated on.
Assuming but without holding I am wrong in my above view, and it can be said the charge is valid, there is no evidence placed before the Court to show that when the Pw2 and members of his team upon finding the gun in the 1st Defendants residence requested for valid licence for it. The only evidence before the Court regarding request for it was the request made by the Pw16 to which the 1st Defendant responded that he would produce the renewal. In the course of the proceedings he now produced and tendered through the Pw16 Exhibit DDD in evidence to show he and Hon. Justice A. R. Mohammed have a valid licences for the two guns.
The learned senior Prosecution Counsel strongly castigated Exhibits DDD and EEE in his Written Address but unmindful of the fact that they are exhibits tendered through the Prosecutions witness, thus it is the evidence of the Prosecution as he did not treat the Pw16 as a hostile witness which would entitle him disclaim the said exhibits.
Beyond these, the Court has critically examined both exhibits. Whilst as shown at the back of his application form, the 1st Defendant got approval for a licence to bear a gun on 10th October, 2000, Hon. Justice A. R. Mohammed got his while the 1st Defendants licence (Exhibit DDD) was issued on 10th October, 2000 that of Hon. Justice A. R. Mohammed (Exhibit EEE) was issued on 5th October, 2000. Whilst the renewal in Exhibit DDD covers the period 12th October, 2016 to 31st December, 2018, that in exhibit EEE covers the period 20th October, 2016 to 31st December, 2018.
Although the learned Prosecution Counsel contended that as at 7th October 2015 when the guns were found in the 1st Defendants house there was no valid licences for them, evidence before the Court reveals no request was made for production of the licences or their renewals on that date. The fact that the licence were produced and tendered during the proceedings would not render them unavailing to the 1st Defendant in the circumstances in which the Robbery and Firearms (Special Provisions) Ac does not in clear terms place a time limit within which the licence or renewal must be produced.
Section 29 says the Police is to give the holder of the gun reasonable time to produce the licence. The phrase reasonable time was not defined in the Section. Beyond these, a rightly submitted by the learned 1st Defendants Counsel Exhibits DDD and EEE being documents as shown on their faces were made in a manner substantially regular, enjoy presumption of regularity under Section 168 of the Evidence Act 2011. They therefore avail the 1st Defendant in the circumstances.
The learned Prosecutions Counsels contention would have been tenable if in the light of the provision of Section 3, of the Robbery and Firearms (Special Provisions) Act and 28 and 29 of the Fire Arms Act the 1st Defendant at all material times up till trial failed to produce licences/renewals to justify the firearms found in his possession.
Given all that has been said above, the Court comes to the inescapable view that there is nothing more for the 1st Defendant to explain by way of defence with regard to the possession of the firearms. Count 15 of the charge therefore cannot stand and is dismissed. The 1st Defendant is also discharged on it.
Count 16 dwells on the 1st Defendant being in possession of the pump action rifle with serial number AVAR MAGNUM 6284. By the records, that gun and that dealt with above were found on him at the same time and Exhibit EEE was tendered with respect to it by the 1st Defendant through the Pw16. The findings and conclusion made with respect to Count 15 is adopted in dismissing the Count.
In Count 17, the 1st Defendant is charged with having in his possession thirty five rounds of ammunition (cartridges) without valid licence contrary to Section 8 of the Firearms Act, Cap F20 LFN 2004. A perusal of the second page of Exhibits DDD and EEE show approvals were given to the holders of the licences to possess 100 rounds of ammunition. The Court also adopts the findings it made with regard to Counts 15 and 16 of the charge and holds the 1st Defendant has nothing more to explain by way of defence to the Count. He is accordingly discharged on that Count.
In Count 18, the 1st Defendant is charged with giving false information to Babatunde Adepoju (an operative of Department of State Service) in his written statement that one pump action rifle and cartridges belonged to Hon. Justice A. R. Mohammed a serving Judge of Federal High Court which information was intended to mislead him in the discharge of his duties and thereby committed an offence contrary to Section 140 of the Penal Code Act Cap 532 Laws of FCT 2007.
Section 140 of the Penal Code provides that: –
“Whoever gives to any public officer an information which he knows or believe to be false, thereby to cause or knowing it to be likely that he will thereby cause such public officer
(a). To do or omit anything which the public officer ought not to do or omit if the true state of facts respecting such information is given were known by him; or
(b). To use the lawful power of such public officer to the injury or annoyance of any person, shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to forty naira or with both.
The ingredients of this offence which the Prosecutor is expected to prove by prima facie evidence are:–
(i). That the person to whom the information was given was a public officer.
(ii). That the Defendant gave the information to the public officer.
(iii). That the information was false.
(iv). That the Defendant knew or believed such information to be false when giving it.
(v). That the Defendant intended thereby to cause or knew that it was likely that he would thereby cause the public officer to act in one of the ways in paragraphs (a) and (b) of Section 140. See: page 91 of the Book NOTES ON THE PENAL CODE LAW BY S. S. RICHARDSON.
With respect to this Count the Prosecution relies on the evidence in chief of the Pw16 where he testified, inter alia, that the 1st Defendant in Exhibit QQ (his written statement) stated that one of the pump action guns was his and the other belonged to A. R. Mohammed. When however he (the Pw16) interviewed Hon. Justice A. R. Mohammed he denied ownership of the gun. That by this, the 1st Defendant gave false information to the Pw16 a public officer in the discharge of his duties. The Pw16s evidence of denial of ownership of the gun by Hon. Justice A. R. Mohammed is contained in paragraph 2 of page 158 of the records.
Records of proceedings at page 169 nevertheless show that under cross examination by the learned 1st Defendants Counsel, the Pw16 stated inter alia that he came across A. R. Mohammed, J in the course of his investigations. Exhibit JJ shown to him bears the name and photograph of A. R. Mohammed J, he interviewed. He took statement from him and in it he said he was approached by a gun dealer recommended by the 1st Defendant and the dealer told him he would supply the firearms to him and he could pay later. At page 170 he confirmed the 1st Defendants explanation to him that Hon. A. R. Mohammed had an accident hence he had not come for his gun.
In the light of the Pw16s evidence under cross examination that he interviewed A. R. Mohammed J, the name and picture of the person in Exhibit JJ are his, and given that Exhibit JJ is the licence for one of the guns, can it be said that the 1st Defendant information to the Pw16 that one of the guns belonged to A. R. Mohammed, J is false? I do not think so.
Given the circumstances of this Count, the Court holds, as rightly canvassed by the learned 1st Defendants Counsel that Hon. Justice A. R. Mohammed whom the Prosecution alleges denied the 1st Defendants information that one of the guns belongs to him is a vital witness whom the Prosecutor ought to have called to lead evidence throwing more light on whether or not what the 1st Defendant said regarding his ownership of one of the guns is true or false. This is particularly so as the said response of A. R. Mohammed J, in which he denied ownership of the gun was not placed before the Court to lend credence to the evidence of Pw16.
Putting the evidence in chief the Pw16 side by side that under cross examination and the Prosecutions failure to call Hon. Justice A. R. Mohammed or tender his response the Court comes to the view that the evidence is such which no reasonable Court can rely on to hold the 1st Defendant to defence of Charge of giving false information to the Pw16. The evidence does not disclose a prima facie case of giving false information consistent with the ingredients of the offence set out above. For this reason, This Count of the information also fails and is dismissed. The 1st Defendant is also discharged with respect to same.
Before my ink dries, let me quickly mention that, this Court did give very serious thoughts to the circumstances of this case. There is no gainsaying that the case is built on high level suspicions and speculation fuelled by the enthusiasm of the very important Nigerias current fight against corruption. Whilst such level of suspicion or speculation can in the eyes of pedestrians and uninformed ordinary persons in market places suffice for the Defendants to be condemned so as to give fillip to the fight against corruption, in the eyes of the law however, the suspicions do not measure up to the standard required for the Defendants to be condemned to further trial.
To the extent that in our legal jurisprudence (which is still adversarial) the burden of proving any person guilty of an offence remains the duty of the Prosecution or the complainant, it will be a sad day if this extant state of the law is kicked aside by the Court and the Defendants made to prove their innocence by further trial in order to achieve the approval and applause of uninformed minds. This Court will be failing in its duty if it panders to such sentiment. This brings to the fore the all important need for our security/law enforcement, and prosecutional agencies to patiently conduct proper, water tight and unassailable investigations before suspects are arraigned in Court. As cumbersome or onerous as this could be, the nation will be better for it in its current fight against corruption. I say no more and hope the message here will be taken in good faith.
All said, the Court having found the Prosecution did not make out a prima facie case in respect of all Counts of the Charge, it stands to reason there is nothing on which the charge can stand. There is therefore no justifiable basis to call upon the Defendants to put up their defences to the Counts of the charge. The sole issue raised above is accordingly resolved against the Prosecution in favour of the Defendants. This information with all the Counts are in the circumstances dismissed and all the Defendants discharged.
The Assistant Chief Registrar of this Court is directed to furnish the parties with certified true copies of this Ruling within 7 days from today.
(1). Mr. Segun Jegede with Mr. Emmanuel Obua, Mr. Anthony Agbonlahor and Mr. Pius Akuta for the Prosecution.
(2). Dr. Onyechi Ikpeazu SAN, for the 1st Defendant. With him: Mr. Afam Osigwe, Mr. Nwachukwu Ibegbu, Mr. Obinna Onyia, Mrs. Ifeyinwa Ikeatuegwu, Mr. A. A. Akaahs, Miss. Nwamaka Ofoegbu, Nkemakonam Obiesie, Mr. Nzube Akpaniteakie, Mrs. Amaka Moka, Mr. Alex Ejesieme and Mrs. Chidima Nweke.
(3). Chief Robert Clarke, SAN for the 2nd Defendant. With him: Mr. Aboyomi Sadiku, Mr. I. B. Mohammed, Mrs. Chioma L. Nzekwe, Mrs. O. Omo-Egharevba, Mr. Dolapo Keinde, Mrs. Geraldine Oba and Idongesit Antai.
(4). Mr. J. C. Njikonye for the 3rd Defendant. With him: Mr. L. Omo Aligbe, Mr. I. A. Arotiowa, Mr. D. O. Ariku, Mr. K. E. A. Akonjom, Mr. Isaac Ita, Mr. Wilfred Okoli, Mr. Ezenwa Ibegunam, Mr. O. F. Ekengba, Mr. Victor Oziegbe, Mis. Serah Sanni Mrs. Chidinma Otuehere, Mr. Blessing Yusuf, Esther Akubue and Mr. G. E. Ejemai,
(5). Mrs. A. O. Onyedum holding watching brief for the Nigeria Bar Association.
For more Information about Adverts and sponsorship mail Contact@lawyard.ng