➥ CASE SUMMARY OF:
Orji Uzor Kalu v Federal Republic of Nigeria (FRN) & Ors (2016) – SC
by Branham Chima (SAL).
Supreme Court – SC.215/2012
➥ JUDGEMENT DELIVERED ON:
Friday, the 18th day of March, 2016
➥ AREA(S) OF LAW
Prima facie case
Decisions of concurrent courts.
➥ PRINCIPLES OF LAW
⦿ WHAT IS PRIMA FACIE?
“Prima facie” is the establishment of a legally required reputable presumption. Prima facie is not the same thing as the proof which comes later when the Court has to find whether the accused is guilty or not guilty. — S. Galadima, JSC.
⦿ MEANING OF PRIMA FACIE: GROUND FOR PROCEEDING
The term, prima facie case, answers the questions on the face of the proof of evidence: is there a ground for proceeding Does the proof of evidence disclose an offence or offences and if so, is the accused linked with the offence as to require him to explain his involvement therein. — N.S. Ngwuta, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Suleiman Galadima J.S.C.
⦿ FOR THE APPELLANT
Awa U. Kalu SAN.
⦿ FOR THE RESPONDENT
Rotimi Jacobs SAN.
➥ CASE FACT/HISTORY
Sometime in 2005, the Economic and Financial Crimes Commission (EFCC) received several petitions from some well-placed concerned indigenes of Abia State of Nigeria against the Appellant and some other persons. The said petitions bordered on abuse of office, corruption and money laundering.
Upon receipt of these petitions, a team of investigation was constituted by the EFCC to discreetly investigate the petitions. Investigation revealed that the Appellant who was the Governor of Abia State between May, 1999 and May 2007, incorporated some limited liability Companies, one of which is SLOK NIGERIA (the 3rd respondent herein), of which he was a shareholder.
It was the 1st respondent’s case that the Abia State Government funds running into some billions of Naira in various Banks were allegedly fraudulently withdrawn and illegally converted into drafts in favour of the personal use of the Appellant in his SLOK GROUP of Companies. Other allegations leveled against the Appellant were that he awarded the State Governments contracts to such companies as ZEROCK CONSTRUCTION Ltd, HITEC CONSTRUCTION LTD, HAPEL NIGERIA LTD and UDEX NIGERIA LTD in which he had interest.
It was alleged that the contractors to whom contracts were awarded by the Appellant as the Governor, also obtained several bank drafts which were lodged into the 3rd Respondent’s account as gratifications. In view of these allegations the 1st respondent filed a criminal charge against the 2nd and 3rd respondents herein and some other officials of the Abia State Government at the Federal High Court Lagos. The name of the appellant featured in the said charge but because he was still under official immunity, as such could not be prosecuted. The said charge was later withdrawn.
Subsequently, when the appellant as well as the 2nd and 3rd respondents were arraigned at the Federal High Court Abuja, he approached the Federal High Court, Lagos and the Federal High Court, Umuahia, seeking a sort of reprieve for an order to restrain, the EFCC from arresting, detaining or prosecuting him. It would appear when he failed in his bid to secure the said restraining order in these Courts, the appellant went to the Abia State High Court, Umuahia where he filed an application for enforcement of his fundamental rights. On the 31st May, 2007, the Court made an exparte order restraining the EFCC from arresting and/order detaining him, in the following term: “That the leave so granted shall operate as a stay of all actions or matters relating to or connected with the complaint hereof until the determination of the motion on Notice.”
The above order was relied upon by the appellant before the trial Federal High Court and the Court of Appeal to argue that he can no longer be prosecuted pending the hearing and determination of his motion on Notice. He also prayed the Court below to quash the charge against him on the ground that no prima facie case was disclosed in the entire proof of evidence.
The 1st respondent herein reacted by opposing the application to quash the charge before the Federal trial High Court. It filed a counter-affidavit with two Exhibits. In his considered ruling the learned trial judge dismissed the Appellant’s motion to quash the charges preferred against him on 8th May, 2009. The Appellant’s appeal to the Court below was further dismissed.
Dissatisfied with the judgment of the Court below the appellant further appealed to this Court vide his Notice of Appeal dated 4th day of May, 2012.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the Court below did not err when it held that the charge preferred against the appellant contrary to the terms of an order made by a Court of competent jurisdiction is not vitiated?
RULING: IN RESPONDENT’S FAVOUR.
A. THE ORDER OF THE FEDERAL HIGH COURT OF UMUAHIA SEEKS TO GAG THE EFCC
“I agree with the Court below that the suit No.HU/177/2007 filed at Abia State High Court by the Appellant was nothing but a “gagging suit” with the order made there from on 31/5/2007, designed to frustrate, prevent, and discourage the 1st Respondent from discharging its statutory functions. See the opinion of Lord Denning, Mr. on this point in WALLER STEINER V. MOIR (1974) 3 All ER.2L7. This important point made in this case is further restated in ATTORNEY-GENERAL V. TIMES NEWSPAPERS LTD (1973) 3 All ER. 54 at 60 per Lord Reid. The suit of the Appellant, at Abia State High Court and the general and ambiguous order made therein from were clearly intended to “muzzle” or prevent the 1st Respondent from discharging its statutory function.”
“Sections 6 (m) and 46 of the Economic and Financial Crimes Commission (Establishment) Act vest in EFCC the function and duty of investigating and prosecuting persons reasonably suspected to have committed economic and financial crimes. For a person to rush to Court to place a clog or shield against criminal investigation and prosecution is a 15 clear interference with the powers given by law and the Constitution to EFCC in the conduct of criminal investigation and prosecution. It is clearly an abuse of due process of the law. See ABACHA V. FRN. (2014) 6 NWLR (Pt.1402) 43 at 112, DARIYE V. FRN. (2015) 2 SCM P.46 at 68. ATTORNEY-GENERAL OF ANAMBRA V. UBA (2005) 15 NWLR (Pt.947) 44 at 67.”
II. Whether the proof of evidence filed by the 1st Respondent (the prosecutor) has disclosed a pima facie case against the Appellant?
RULING: IN RESPONDENT’S FAVOUR.
A. A PRIMA FACIE CASE IS DISCLOSED AGAINST THE APPELLANT
“The Trial High Court had the proofs of evidence before it. I have taken time to read through the record of appeal containing the proofs of evidence and the briefs of argument exchanged and relied upon by 22 the counsel for the respective parties. I do not agree that there is no scintilla of evidence in the proofs of evidence in support of counts 1-16. They disclose a prima facie case under Section 17 of the Money Laundering (Prohibition) Act (supra) earlier reproduced. I have observed that the Court below, with due respect, went extra miles, in minutest details as if the appeal before it (the subject matter of the trial of the Appellant) have been completed. The Court was expected to only decide at this stage whether a prima facie case has been established against the Appellant to warrant him facing his trial. In any case, the Court rightly concluded when affirming the decision of the trial Court to the effect that a Prima facie case was disclosed against the Appellant.”
“In conclusion, in the light of all I have said, I cannot help but dismiss this appeal for lacking in merit. It is dismissed. I affirm the decision of the Court below which rightly affirmed the decision of the trial Federal High Court that it was not bound by the ex parte order of Abia State High Court as to vitiate the charges preferred against the Appellant. It is therefore ordered that the Learned Chief Judge of the Federal High Court should assign the case to another Judge for expeditious trial.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ WHEN CAN IT BE SAID THAT THERE IS A PRIMA FACIE CASE
In Ajidagba v. Inspector-General of Police (1958) 3 FSC 5 (1958) SCNLR 60, Abbot, FJ, said (at page 6 of the report): “We have been at some pain to find a definition of the term ‘prima facie,. The term, so far as we can find has not been defined either in English or in Nigerian Courts.” His Lordship then relied on an Indian case of Sher Sinsh v, Jitendranathsen (1931) 1 LR 59 Case 275 where the Indian Court held, inter alia: “What is meant by a prima facie (case) It only means that there is ground for proceeding… But a prima facie is not the same as proof which comes later when the Court has to find whether the accused is guilty or not guilty” (per Grose, J) and “the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused.”
➥ REFERENCED (OTHERS)