➥ CASE SUMMARY OF:
Temple Nwankwoala v. Federal Republic of Nigeria (2018) – SC
by Branham Chima (SAL).
➥ COURT:
Supreme Court – SC.783/2015
➥ JUDGEMENT DELIVERED ON:
Friday, the 23rd day of February, 2018
➥ AREA(S) OF LAW
Reasonable doubt;
ICPC being a valid law;
Tainted witness.
➥ PRINCIPLES OF LAW
⦿ A PERSON CAN ONLY HE CHARGED FOR A LAW THAT EXISTS
An accused person charged for an offence can only be charged under the law that creates the offence. Such a law must be in force at the time the offence was committed. There is no provision in our Constitution to charge an accused person under a law that was not in existence at the time the conduct complained of manifested, or to create an offence to crirnimalise a conduct after the act. A trial conducted under a law that has been repealed, no matter how well conducted and decided is a nullity. See Ogbomor v. State (1985) 1 NWLR (Pt.2) p.223. – Rhodes-Vivour, JSC.
⦿ EXPLANATION OF PROOF BEYOND REASONABLE DOUBT
Lord Denning explained proof beyond reasonable doubt in Miller v Minister of Pensions (1947) 2 ALL ER p.372 and this explanation was adopted by this Court in Lori & Anor v State (1979-1981) 12 NSC p.269 and in innumerable decisions of this Court. His Lordship said: “Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable the case is proved beyond reasonable doubt but nothing short of that will suffice.” – Rhodes-Vivour, JSC.
⦿ TWO EVIDENCE CONTRADICT ONE ANOTHER WHEN THEY AFFIRM THE OPPOSITE
A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated not when there is just a minor discrepancy between them. Two pieces of evidence contradicts one another when they are themselves inconsistent. A discrepancy may occur when a piece of evidence stops short of, or contains a little more than what the other evidence says or contains some minor difference in details. See Gabriel v State (1989) 5 NWLR (Pt.122) p.460. If a witness makes a statement before trial which is inconsistent with the evidence he gives in Court and he does not explain the inconsistency to the satisfaction of the Court, the Court should regard his evidence as unreliable. See Onubogu & Anor v State (1974) (NSCC) p.358. I must say straightaway that it is only material contradictions that are to be considered. – Rhodes-Vivour, JSC.
⦿ TAINTED WITNESS HAS A PERSONAL PURPOSE TO SERVE
Whether the prosecution witnesses are tainted witnesses. A tainted witness is a witness who has some purpose of his own to serve. After examining the testimony of the prosecution witnesses, I am satisfied that they gave evidence on what they saw during the investigation of the case and came to Court to say exactly what transpired .It was not shown that by their testimony they had some purpose of their own to serve. They are indeed witnesses of truth and not tainted witnesses. – Rhodes-Vivour, JSC.
⦿ MISCARRIAGE OF JUSTICE IS FAILURE OF JUSTICE
Miscarriage of justice is a failure of justice. There is a miscarriage of justice where there are grave or serious errors in the proceedings as to make the proceedings fundamentally flawed. It means failure of the Court to do justice. See Enawakponmwhem Aigbobahi & Ors v. Edokpayi Aifuwa & Ors (2006) 6 NWLR (Pt.976) p.270; Amadi v. NNPC (2000) 10 NWLR (Pt.674) p.76;Kalu O. Irolo & Ors v. Ebe E. Uka & Anor (2002) 14 NWLR (Pt.786) p.195. Nnajiofor v. Ukonu (1986) 4 NWLR (Pt.36) p.505. – Rhodes-Vivour, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Olabode Rhodes-Vivour, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Mr. O. Ovrawah.
⦿ FOR THE RESPONDENT
Mr. G. Lawal.
➥ CASE FACT/HISTORY
The appellant was a Deputy Superintendent of Police, attached to the office of the Assistant Inspector General of Police Zone 5 Benin City, Edo State. On or about 18 October, 2006 the appellant was involved in the investigation of one Elder Alexander Okiye, who had criminal complaints to answer. In order that the investigation turns out to be favourable to Elder Alexander Okiye the appellant demanded for the sum of N1m (One Million Naira) from him. The learned trial judge found that the act of demanding contravened the provisions of Section 10 (a) (ii) of the Corrupt Practices and Other Offences Act 2000.
This is an appeal from a decision of the Court of Appeal, Benin Division, upholding the conviction of the appellant by a Benin City High Court on three counts under the Corrupt Practices and Other Related Offences Act, 2000. The counts are – (a) CORRUPT DEMAND BY PERSON CONTRARY TO SECTION 10(A)(II) OF THE CORRUPT PRACTICES AND OTHER RELATED OFFENCES ACT 2000; (b) CORRUPT RECEIPT BY PERSON CONTRARY TO SECTION 10(A) (II) OF THE CORRUPT PRACTICES AND OTHER RELATED OFFENCES ACT 2000; (c) FAILURE TO REPORT OFFER OF GRATIFICATION CONTRARY TO SECTION 23(1) OF THE ICPC ACT 2000 PARTICULARS OF OFFENCE.
The appellant pleaded not guilty to the original two counts, subsequently amended by the addition of a third count. Trial eventually got underway. The prosecution called four witnesses. Fifteen documents were admitted as exhibits A-P. The appellant testified in his defence and called three witness. In a considered judgment delivered on 25 January, 2012 the learned trial Judge Ikponmwem J found the appellant guilty on counts 1 and 3. The appellant was sentenced to seven years imprisonment with hard labour on count 1 while he was cautioned and discharged on count 3. Dissatisfied, the appellant filed an appeal. It was heard by the Court of Appeal, Benin Division.
That Court in a judgment delivered on 23 February, 2015 affirmed the judgment of the trial Court. This appeal is against that judgment.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether the Corrupt Practices and Other Related Offences Act, 2000 under which the appellant was tried and convicted is a valid law?
RULING: IN RESPONDENT’S FAVOUR.
A. THE 2000 ACT IS A VALID LAW
[After the prosecution closed its case, the learned trial judge heard submission from counsel on whether the ICPC Act 2000 had been repealed. In a considered Ruling delivered on 27 January, 2012 the learned trial judge said: “I am satisfied that the Corrupt Practices and Other Related Offences Act 2000 commenced in June 2000 and the then President of the Federal Republic of Nigeria, Olusegun Obasanjo signed it into law: I am satisfied that a similar Act passed in 2003 was incorporated in the Revised Edition of the Laws of the Federation of Nigeria 2004 but I am not satisfied that the said Corrupt Practices and Other Related Offences Act was signed by the president of the Federal Republic of Nigeria or given assent to by the President of Federal Republic of Nigeria before it was.compiled in the Revised Edition (Laws of the Federation of Nigeria) Act 2007 to which he gave assent. It is my humble view that each Law must pass through the proper procedure for it to become a law and it does not become a law by compilation. The learned counsel for the accused has not proved that the President assented to the Corrupt Practices and Other Related Offences Act. Even if it is taken that by giving assent to the Revised Edition (Laws of the Federation of Nigeria) Bill, 2007 on 25 May 2007, the Corrupt Practices and Other Related Offences Act 2003 is deemed to have been assented to which is not my position, this law takes effect in my respectful view from 25 May 2007. It therefore means that the accused person in this case whose trial commenced under the 2000 Act cannot thereby be affected by this new Act. However, I am bound by the decision in Wabara & Ors v Federal Republic of Nigeria cited by Mr. Erewa. I therefore hold that the Act under which this accused person stands trial is not repealed and remains valid.”
It is not in contention that the Corrupt Practices and Other Related Offences Act, 2000 remained valid law unless amended or avoided by a law validly made by the National Assembly. The crucial question therefore is, whether from the provisions of the revised Edition (Laws of the Federation of Nigeria) Act, 2007 it can be read that the 2000 Act was repealed therein, and consequently that the appellant’s trial, was based upon a repealed Law. A dispassionate look at the section above cited show that the Act repealed therein is the Corrupt Practices and Other Related Offences Act 1990. Even were it to be held that the 2007 Act gave life to the 2003 Act, same was assented to on 25 May 2007, months after the commencement of the present case before the trial Court. Furthermore, the 2013 Act (sic) having been declared null and void having no effect, and the 2000 Act remaining the extant law, unless amended or avoided by any subsequent valid law, it can safely be assumed that the 2000 Act still remains in force. This is even more so where Section 2 of the 2007 Act is taken into consideration, which reads: S.2 “Any inadvertent omission, alteration of any existing statute shall not affect the validity and applicability of the statute. It is my candid view therefore that the 2000 Act solidly stands, and the appellant was duly and rightly tried under the 2000 Act, which was the law in force.” I have read both views and relevant legislation on the matter. I am in complete agreement with the reasoning of both Courts. To my mind the issue appears straightforward.
Four days after 18 May 2003, that is on 21 May, 2003 a Federal High Court Abuja in Suit No.FHC/ABJ/CS/93/2003. Hon. Bala Kaoje & 5 Ors. v. The National Assembly of the Federal Republic of Nigeria & 13 Ors, declared the ICPC Act of 2003 passed by the National Assembly in violation of a subsisting Court order null, void and of no effect, and revalidated the ICPC Act of 2000. In the absence of an appeal from the decision of the Federal High Court that Ruling remains inviolate until set aside. The law in force is the Corrupt Practices and Other Related Offences Act 2000 and not the Corrupt Practices and Other Related Offences Act 2003. See FRN v. Wabara (2013) 5 NWLR (Pt.1347) p.331; AG Ondo v. AG Federation & 35 Ors (2002) 9 NWLR (Pt.772) p.222; Egharevba v. FRN (2016) 2 SC (Pt.iii) p.166.]
.
.
II. Whether the respondent proved its case against the appellant beyond reasonable doubt?
RULING: IN RESPONDENT’S FAVOUR.
A. THE APPELLANT IS GUILTY OF THE OFFENCE CHARGED HIM
[I am satisfied that there are no material contradictions in the testimony of the witnesses especially on whether the appellant demanded for N1million from PW2. I have examined the statement of PW1 and his testimony in Court on the issue of marked money and who provided it. I am satisfied that his testimony in Court did not contradict his statement, rather it contains a little more than what he said in his statement. This is a minor discrepancy and is in no way a material contradiction. I am satisfied that there is no material inconsistency in the testimony of PW1 and his statement.
To find out if this case was proved beyond reasonable it is important that the facts of the case are examined to see if there is sufficient evidence in proof of (a) to (d) earlier alluded to in this judgment. (a) That the accused person is a public Officer. It is not in doubt that at the time the offence was committed the appellant was a Deputy Superintendent of Police DSP. See page 113 of the Record of Appeal where the appellant said “I am a Police Officer, a Superintendent of Police. At the time I was arrested, I was a Deputy Superintendent of Police. I got my promotion while I was in the cell in Abuja. A Deputy Superintendent of Police is a public officer. I am satisfied that by the appellant’s own admission he is a public officer. That the appellant is public officer has been proved beyond reasonable doubt. (b) That the accused person received or obtains any property or benefit of any kind for himself or any other person for anything already done or omitted to be done or for any favour or disfavour already shown to any person by himself in the discharge of his official duties or in relation to any matter connected with the functions, affairs or business of a government department or corporate body or other organization or institution in which he is serving as an official. Evidence led by the prosecution witnesses show that the appellant made a demand from PW2 for N1m. Relevant extracts from the testimony of PW2 highlights this fact. He said: “The accused told me that I am a Petroleum products diverter, a pipeline vandal and that I owe the petitioner Monday Ebhohimen N2.7million. After about 9 hours I was granted bail. The accused person then called me aside and asked me to see him privately. I had been given a date to report back on 18/10/2006 but he asked me to see him the next day. The following day, I went to the accused who called me aside and said that he would need N1 million from me otherwise the way he would investigate the case would require him arresting my staff, senior NNPC staff and impounding my trucks, tankers and vehicles… That he prefers one giving him N1 million so that he would not destabilize my business and that he would give me a favourable report.” Under cross-examination PW2 was emphatic when he said:- . I pleaded with accused that I did not have N1 million he demanded. I could only offer N300,000. He still refused…. PW3 gave evidence on this issue of the accused person demanding N1m. He said: PW2 told me that after the general meeting the accused person called him and told him privately that the alternative to paying that N2 million to Monday is that PW2 would pay N1 million for a favourable report to be written by him and that he would write a favourable report stating that the matter is civil and there is no criminality in the case. I asked PW2 if he will allow me to confront the accused with the claim and he agreed…. I told him what PW2 told me and he confirmed it. That he demanded for N1 million to help PW2.” My lords, I am satisfied on the evidence of the prosecution witnesses, especially PW2 and PW3 which remained unshaken under cross examination that the appellant demanded/requested for gratification of N1 million from PW2. The whole purpose of the demand was for the appellant to write a favourable report for PW2 as regards the case being investigated by him. (c). That he asked for the benefit in the course of his official duties. The appellant, a senior police officer was detailed to investigate criminal allegations against PW2 which arose from a petition forwarded to him by his superiors. It was in the course of his official duties (i.e. while investigating the contents of the petition against PW2) that he asked for the benefit. (i.e. the sum of N1 million). I am satisfied that he asked for benefit in the course of his official duties. (d). That the accused person failed to report the offer of gratification. Under Count 3, failure to report offer of gratification to an officer of the Independent Corrupt Practices Commission (ICPC) offends Section 23 (1) of the ICPC Act 2000. At no time did the appellant report to any officer of the ICPC or the Police any issue of gratification. Count 3 is thus proved beyond reasonable doubt, since the appellant failed to make a report.]
.
.
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✓ DECISION:
“In the end the appeal lacks merit. The judgment of the Court of Appeal is affirmed. Appeal dismissed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 23(1) ICPC Act.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
