On the 31 January 2012, at the High Court of Justice sitting in the Federal Capital Territory Abuja, His Lordship, Honourable Justice Suleiman Belgore, upheld the defence argument that at the close of the prosecution’s case against the defendants- the immediate past speaker of the Nigeria’s House of Representatives, Mr. Dimeji Bankole and his deputy, Mr. Usman Nafada, the totality of the prosecution’s case against the defendants did not disclose a prima facie case against them and subsequently discharged the defendants. Given the high profile status of the defendants; the expectation by the larger society that corrupt public office holders should not be allowed to escape justice by legal technicalities and the fact that the cases against the defendants were dismissed at ‘half time’ stage without the defendants having to present evidence to rebut the prosecution’s case, it is important at this stage to have a critical appraisal of the case with a view to ascertaining whether the judge was right to have dismissed the case in the circumstances he did; whether the charges preferred by the prosecution against the defendants were the appropriate ones in the circumstances and what lessons could be learnt by the prosecution as a result of the Court’s decision.
On the 31 January 2012, at the High Court of Justice sitting in the Federal Capital Territory Abuja, His Lordship, Honourable Justice Suleiman Belgore, upheld the defence argument that at the close of the prosecution’s case against the defendants- the immediate past speaker of the Nigeria’s House of Representatives, Mr. Dimeji Bankole and his deputy, Mr. Usman Nafada, the totality of the prosecution’s case against the defendants did not disclose a prima facie case against them and subsequently discharged the defendants. Given the high profile status of the defendants; the expectation by the larger society that corrupt public office holders should not be allowed to escape justice by legal technicalities and the fact that the cases against the defendants were dismissed at ‘half time’ stage without the defendants having to present evidence to rebut the prosecution’s case, it is important at this stage to have a critical appraisal of the case with a view to ascertaining whether the judge was right to have dismissed the case in the circumstances he did; whether the charges preferred by the prosecution against the defendants were the appropriate ones in the circumstances and what lessons could be learnt by the prosecution as a result of the Court’s decision.
The charges against the defendants-
Both defendants faced identical 17-count charges. The offences for which the defendants were indicted can broadly be classified as follow-
- Theft of over N25 billion, properties of the Federal Government of Nigeria- contrary to Section 286 of the Penal Code (Counts 13-17);
- Criminal Breach of Trust, (in respect of the above money) contrary to Section 311 of the Penal Code (Counts 2-11)
- Conspiracy (to commit the above offences), contrary to Section 97 of the Penal Code (Count 1)
- Violation of the approved Remuneration Package for Political, Public and Judicial Office Holders by the Revenue Mobilization, Allocation and Fiscal Commission; and
- Violation of Extant Revised Financial Regulation of the Federal Government of Nigeria, 2009.
To sustain the allegations, the prosecution called 12 witnesses which included a number of EFCC investigators; Muhammed Omolori, the clerk of the House of Representatives; Abullahi Nma, who was, at the material times the National Assembly branch manager of UBA, the bank that gave the loans; Salisu Maikasuwa, the Clerk of the National Assembly and few other crucial witnesses. The prosecution also tendered 42 exhibits to support its case. As indicated, after the conclusion of the prosecution’s case, the defence counsel both made identical No Case Submissions inviting the Court to strike out the case against their clients on the basis that the prosecution’s evidence, taken at its highest, did not disclose a prima facie case against their clients and despite the prosecution’s protestation to the contrary, the Court upheld the defence submissions.
No Case Submission-
Although the concept of ‘No Case Submission’ (also known as ‘half time submission’) is a well entrenched practice in Common Law jurisprudence, it is perhaps pertinent to reiterate here its Constitutional, Statutory and Case Law provenance.
The starting point is the non-negotiation of the principle that, in all decent society built on the sanctity of the Rule of Law, everyone accused of criminal misdeed is deemed innocent until the prosecution has been able to submit sufficient evidence to the Court which will persuade the Court to pronounce them guilty. Concomitant to this principle is another equally sacrosanct principle- that the burden of proving the guilt of a defendant rests squarely on the prosecution. It is not up to the defendant to prove their innocence; it is up to the prosecution to prove their guilt. Thus in a criminal trial, after the conclusion of the prosecution’s case the defence has the options of either (i) calling their own witnesses (which may or may not include the accused) to rebut the prosecution’s case; (ii) rest their case on the prosecution’s evidence without calling any witness or (iii) or invite the Court to dismiss the charges and discharge the accused if, in their opinion the evidence produced by the prosecution has not presented a prima facie case against the defendant.
Section 36(5) of the Nigerian Constitution guarantees the Presumption of innocence of everyone accused of criminal offence(s) in Nigeria. It is the duty of the prosecution to rebut this presumption by adducing sufficient evidence to persuade the Court of the defendant’s guilt.
Similarly Section 191(3) of the Nigerian Criminal Procedure Code provides that-
‘Notwithstanding the provisions of sub-section 2 of this section, the Court may after hearing the evidence for the prosecution, if it considers that the evidence against the accused is not sufficient to justify proceeding further with the trial, record a finding of not guilty in respect of the accused without calling upon him to enter his defence. And such accused shall be discharged’
Case laws, both internationally and in Nigeria, have supported this principle. In the United Kingdom, the locus classicus is perhaps the case of R-v-Galbraith (1981) 1 WLR 1039. The Galbraith case lays down the test which a trial Court must take into account when dealing with a defence half time submission-
‘The difficulty (for the Court) arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness, or because it is inconsistent with other evidence-
(a)- Where the judge comes to the conclusion that the prosecution evidence, taken at its height, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.
(b) - Where however the prosecution evidence is such that its strengths or weaknesses depends on the view to be taken of a witnesses reliability, or other matters which are generally within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judges should allow the matter to be tried by the jury’
Although the guidance in the Galbraith case is clearly tailored for jury trials, it is submitted that the crucial aspects of the guidance can easily be made to apply to Judge-led trials as well. Indeed in the North Ireland case of Chief Constable of Northern Ireland-v-LO (2006) NI 261, Kerr LCJ, as he then was, observed that-
‘The proper approach of a judge or magistrate sitting without a jury does not, therefore, involve the application of a different test from that of the second limb in R v. Galbraith. The exercise that the judge must engage in is the same, suitably adjusted to reflect the fact that he is the tribunal of fact. It is important to note that the judge should not ask himself the question, at the close of the prosecution case, “do I have a reasonable doubt?” The question that he should ask is whether he is convinced that there are no circumstances in which he could properly convict. Where evidence of the offence charged has been given, the judge could only reach that conclusion where the evidence was so weak or so discredited that it could not conceivably support a guilty verdict.”
In any case, ‘No Case Submission’ has enjoyed such notoriety in Nigeria that even before Galbraith; Nigerian Courts had been considering the issue and giving profound and time-tested guidance on the matter. Thus the concept had been well treated in such landmark cases as Onagoruwa v-The State (1993) 7NWLR (pt 303); State-v-Audu (1972) 6SC 28; Daboh-v- The State (1979) 5SC 197, etc.
Was the Court right to uphold the No Case Submission in the Case?
Before considering the above question, it is imperative to state here that in appraising the ‘No Case Submission’ of the defence aftermath of the conclusion of the prosecution’s case, the Court must be mindful that at that stage of the proceedings, the prosecution only needed to have adduced sufficient evidence to provide a prima facie case against the defendants. Thus at the conclusion of its case the prosecution was, at that stage, not under any obligation to have proved the case beyond reasonable doubt- they only needed to have, as Justice Belgore himself observed in the case made available ‘evidence pointing to or attaching to all the ingredients of the offence(s) alleged against the accused person’. Thus in making a decision over the defence ‘No Case Submission’, the question the Court ought to have asked itself was whether there is no circumstances, based on the prosecution’s evidence, in which it would convict the defendant.
What is a ‘running cost’?
It seems that the main thrust of the case rests on the appropriate interpretation of what was termed ‘running costs’ by the members of the House of Representatives in March 2010. At an Executive Session of the House held on the 30 March 2010, the members increased their ‘running costs’ from N27million Naira to N42Million Naira per quarter. Because the increment had not been foreseen in that year’s budget, the House mandated its leadership, i.e. the two accused, to source for the shortfall from bank on the understanding that the increased costs would be included in the 2010 budget which was just about to be passed. Subsequent to this, the 1st defendant then directed the clerk of the House of Representatives, Mr. Omolori (PW4) to source for the funds to meet increased demands by the members. It is this action and the subsequent roll-over of the loan (which eventually reached N25Billion) before its final liquidation that formed the basis of the charges against the defendants. It was therefore imperative that the Court satisfied itself as to the nature of the monies termed ‘running costs’ since there is no Constitutional or Statutory definition of the term. The prosecution had maintained that what was termed ‘running costs’ was effectively other allowances that accrued to the members of the House and as such the House could not unilaterally increase it without recourse to the Revenue Mobilization Allocation and Fiscal Commission (RMAFC). The defence on the other hand maintained that the ‘running costs’ must be distinguished from salaries and other allowances payable to the members of the House. They submitted that it is only the salaries and allowances of members of the House that may not be unilaterally increased by the House without recourse to the RMAFC and since ‘running cost’ was neither salary nor allowance; the House was at liberty to unilaterally increase it. In resolving this crucial issue in favour of the defence, the trial Court appeared to have placed reliance on the testimonies of the prosecution’s own witnesses, particularly the evidence of the PW2 and PW4. It is important to quote their evidence on this matter-
‘At no time did the members of the House whether at an open, executive or any session or meeting increased their salaries and allowances. And all the loan taken was to increase the running costs and not salaries’ PW4
‘I remember in the 2010 Appropriation Act, provisions were made for ‘overhead’. Our investigation reveals that what is called overhead is what they called running costs’ PW2
The trial judge also came to the following conclusion as regards the status of ‘running costs’-
‘I therefore say without hesitation that salary, allowances and running cost are different from each other…and what was increased was the running costs’ p49
‘Running costs are monies meant to pay Assistants to legislators, fuelling of cars of the House, organisation of seminars and conferences, ensuring smooth undertaking of oversight functions etc. These are sometimes called ‘overhead’ costs. They are not personal to the legislators’ page 49
‘Running costs are not fixed (and have never been fixed in the past) by the RMAFC. Only salaries and allowances of members have been so fixed by RMAFC. I repeat, running costs are not matters of fixation by RMAFC through legislation’ p50
Herein lies where, in the opinion of this writer, the Court fell into error in this case.
What was the basis for which the Court reached the definition of ‘running costs’ it did? How could the Court make such authoritative pronouncement on what constitutes a ‘running cost’ without having listened to expert opinions on the matter? Should the Court have at least subpoena the RMAFC and sought its opinion before reaching a decision on the issue? And finally was the Court ruling discharging the accused without seeking such expert opinion premature?
It appears from reading the judgment that the Court was persuaded to reach the decision it did on the definitional status of ‘running costs’ based on the testimonies of Mr. Omolori and Mr. Ibrahim Ahmed. The former was the Clerk of the House whilst the latter was an EFCC investigator and both, it is respectfully submitted, cannot be said to possess such body of knowledge on the issue that the Court could safely rely on for its interpretation. In the opinion of this writer the Court ought to have, at the conclusion of the prosecution’s case, either agreed that ‘running costs’ was indeed part of the larger remuneration of members of the House or deferred such decision until after the full trial when it would have had the opportunity to have listened to further opinions on the matter.
Section 90 of the 1999 Constitution, pertinently titled, ‘Remuneration’ states that-
‘A member of the Senate or of the House of Representatives shall receive such salary and other allowances as the Revenue Mobilization Allocation and Fiscal Commission may determine’.
It follows from the above that only the RMAFC possess the Constitutional power to increase the salary and other allowances of the members of our National Assembly. It also follows logically therefore that if the members of the House increased their allowance without recourse to RMAFC such actions would be void and could form the basis or proof of separate criminal wrong. This writer supports the contention that ‘running cost’ may amounts to salary or ‘other allowances’ as foreseen by Section 90 of the Constitution. Under the Ejusdem Generis rule of Statutory Interpretation, when a Statute (or as in this case, a Constitution) contains a list of specific words or description which is then followed by a more general description, the general description must be restricted to the same class of the specific description. In this case, Section 90 of the Constitution refers to ‘Remuneration’ and ‘Salary’ before stating the words ‘other allowances’ and the words ‘other allowances’ must be interpreted to mean such other incomes that may accrue to members of The House as a result of their membership of the House of Representatives. The trial Judge, it is submitted, erred by holding that ‘running costs are not personal to the legislators’. Indeed the running cost is personal to each legislator. The crucial questions the Court ought to have asked itself were-
Who had final control of the money referred to as ‘running costs’? Who decides how many Legislative Assistants to employ? Who determines how much to pay these Assistants? Who decides how many vehicles a member of the House possesses? Who determines the frequency of fuelling such vehicles? Who decides what Seminars, Conferences etc a member of the House must attend in a quarter? Who decides whether such Seminars or Conferences should hold in Nigeria or oversea? Finally would such monies be payable to someone who is not a member of the House? The answers to the above questions are obvious and it is clear that the members of the House enjoy total control on the disbursement of the allowance referred to as ‘running costs’- they could choose, if they wish, not to employ any Legislative Assistants at all (or indeed employed their relatives as such!). It is therefore submitted that the Court fell into a grave error by coming to such definitive position on the nature of the payment without seeking more extensive opinions on the matter.
It must be stated at this juncture that the writer concedes the fact that the Court might have interpreted ‘running cost’ as an allowance and still have acquitted the defendants on the facts of the case after full trial. However in so doing, the Court would have allowed the course of justice to reach its logical conclusion. Although it is also conceded that violation of the RMAFC Act does not ipso facto invites penal sanction, such violation may however be used by the prosecution to prove other substantive offences alleged and indicted. For example under Section 315 of the Penal Code, an accused may be convicted of Criminal Breach of Trust in respect of money if, being a public servant and having been entrusted with such money, he either misappropriated, converted for his own use or in anyway whatsoever disposed of the monies fraudulently and in a manner contrary to the directive given to him. In this case, if the Court held that the members of the House were wrong to have unilaterally increased their ‘running costs’ allowance, then such fact would be used as evidence of the ‘misappropriation’ or ‘fraudulent disposal’ of such funds contrary to the provisions of Section 315 of the Penal Code. It would not have mattered that the two accused did not personally benefitted from the funds and neither would it have mattered that the funds had been subsequently liquidated.
Finally this writer is of the view that perhaps the case should have been better reviewed before it was presented to Court by the prosecution. Some of the charges could be said to suffer from duplicity. For example 5 of the 17-count charges relate to theft of the N25 billion. Yet the same facts formed the basis of 10 other counts of Criminal Breach of Trust! Surely if you charged someone with stealing a specified amount of money, it is inappropriate (unless you are charging in the alternatives) to then charge the same person with Criminal Breach of Trust in respect of the same money. Similarly question has to be raised as to whether the prosecution obtained proof of evidence of their own witnesses before making the decision to call them as prosecution witnesses. The testimonies of some of the prosecution own witnesses were so damaging to the prosecution’s case that it begs the question why they were called as prosecution witnesses by the prosecution in the first instance. The judge was rightly astounded and wondered why some of the individuals giving evidence before him as witnesses were not with the defendants in the docks. In the crusade against official corruption and all forms of economic crimes in Nigeria, the public rightly see the Court as the last hope where those who preyed on the public coffers will be brought to justice. This puts additional pressures on agencies like the EFCC to ensure that the investigation, review and presentation of their cases are thorough and professional since anything short of this might damage public confidence, not only on the prosecuting agencies, but also on the credibility of the judiciary itself.
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