No Case Submission: When It Can be Sustained

In the High Court of the Federal Capital Territory In the Gwagwalada Judicial Division Holden at Zuba On Wednesday, the 21st day of October, 2020 Before Honourable Justice A.O. Ebong Judge, High Court of the Federal Capital Territory, Abuja Case No. CR/92/2018

Between

Federal Republic of Nigeria… Complainant And

1. Dr. Obaro Reuben Oluwakinmilehin

2. Mrs. Obaro Ayodele Olubunmi

3. Stephen James Strokes Centre of Excellence … Defendants

(Judgement delivered by Honourable Justice A. O. Ebong, J.

Facts

The First and Second Defendant couple, are medical professionals based in the United Kingdom. They are shareholders and Directors of the third Defendant company, which was formed to enable them establish a world class health facility in Nigeria, for the treatment of stroke patients. In furtherance of this, they applied for, and received a seed grant of N450 million from the Subsidy Reinvestment and Empowerment Programme of the Federal Government of Nigeria (“SURE-P”).

Following a Petition to the Independent Corrupt Practices (and Other Related Offences) Commission (ICPC), on allegations of suspicious activities by persons entrusted with Federal Government funds and properties under SURE-P, ICPC obtained information from the Budget Office on the beneficiaries of the SURE-P funds and the list included the Third Defendant; thus, ICPC invited the First and Second Defendant for interrogation.

The couple made statements on how the grant was utilised. The Second Defendant itemised how the fund was disbursed for supply of medical equipment, campaign awareness, temporary accommodation, purchase of land for the permanent site for the Stroke Centre, payment for flight tickets, among others. Payment for a Toyota Prado Jeep was also reflected in the Third Defendant’s account, but the Second Defendant denied that the payment was from the SURE-P fund. ICPC also requested that the Third Defendant furnish the Commission/Investigators with the proposal sent to SURE-P for the award of the seed grant, but the 2nd Defendant informed the investigators that their system crashed and referred them to where the proposal could be obtained. The Defendants were subsequently charged with offences under Sections 15, 16 and 25(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000 (the ICPC Act) and under Section 311 of the Penal Code. The Defendants pleaded not guilty, and the case went to trial.

The Prosecution called five witnesses who gave evidence in support of the Charge, and tendered several exhibits. The witnesses were thoroughly cross-examined by counsel for the Defendants. Thereafter, the Prosecution closed its case, and the Defence made a No Case Submission, and urged the court to discharge and acquit the Defendants. The Prosecution opposed this application.

Issue for Determination

Whether from the evidence before the court, the Prosecution has established a prima facie case for the Defendants to be called upon to enter their defence.

Arguments

Counsel for the Defendants argued that the evidence before the court cannot sustain the counts in the Charge. and urged the court to discharge and acquit the Defendants as there was no prima facie case established against them. Counsel for the Prosecution maintained otherwise, arguing that the Defendants have a case to answer.

Court’s Judgement and Rationale

In its decision, the trial court held that a No Case Submission will be sustained in any of the following instances: (i) where the Prosecution fails to prove the ingredients or some or one of the ingredients of the offence charged; (ii) where the evidence adduced by the Prosecution has been thoroughly discredited by cross-examination; (iii) where the evidence adduced by the Prosecution is so manifestly unreliable, that no reasonable tribunal could convict on it; or (iv) any other ground upon which the court may find that a prima facie case has not been made out against the Defendant, for him to be called upon to answer – SARAKI v F.R.N. (2018) 16 NWLR (Pt. 1646) 405; Section 303(3) of the Administration of Criminal Justice Act (ACJA) 2015. The Prosecution must establish a prima facie case, before the Defendants can be called upon to enter their defence. The Prosecution must put forth evidence, which support all the essential elements of the offence(s) with which the Defendants are charged; failure of which the Defendants must be discharged. Where the evidence of the Prosecution does not meet the standard whereby it is able to secure a conviction, even if such evidence is believed by the court or uncontradicted, the Defendants must be discharged –IKUFORIJI v F.R.N. (2018) LPELR-43884(SC) 20F-21B.

Analysing the counts in the Charge and the evidence led, the court started with count one levelled against the First Defendant only. The count is to the effect that the First Defendant knowingly made a false/misleading statement during investigation, when he informed the Investigators that he paid the sum of N57 million to a company for the supply of medical equipment, without disclosing that he had retrieved the sum of N37 million. The court highlighted the key ingredients of the offence under Section 25(1)(1) of the ICPC Act and concluded that, in all the evidence before the court, there is nowhere that the First Defendant informed the Investigators of the payment as alleged. His response during the interview was that, he did not have the required information. Hence, the allegation in the count failed, as same was not supported by evidence on record.

Count two was levelled against the Second Defendant. She was charged with furnishing false returns about purchase of a Toyota Prado Jeep in the sum of N11 million from the seed grant of N450 million given to the Third Defendant company, which payment was strictly for the construction and equipping of the Centre. The court itemised the ingredients of the offence under Section 16 of the Act, and noted that the main question under the issue, is whether the Second Defendant is a public officer charged with the receipt, custody, use or management of public revenue or property, as provided for in Section 16 of the ICPC Act? The Defendants in this case, are neither members of the public service of the Federation or any State, nor agents of the said Government as described in Section 318 of the Constitution. The Second Defendant is a professional nurse and businesswoman resident in the United Kingdom, and the Chief Operating Officer of the Third Defendant, a private limited liability company without Government interest or shareholding. Contrary to the allegation that the 2nd Defendant bought the Prado Jeep with the SURE-P grant, during the cross-examination of PW 4, it came to light that the First and Second Defendant had over N200 million of their personal funds in Third Defendant’s account, beside the SURE-P grant. Further, PW 4, the Account Officer, testified that eighteen out of thirty-three pages were missing from the Statement of Account of the Third Defendant, which he supplied to the Prosecution. The Prosecution failed to explain why the said pages were withheld. Given the evidence that the Defendants had over N200 million of their personal funds in the account, it cannot be said with certainty that the Prado Jeep was bought from the SURE-P grant. Further, PW 1, who alleged that the grant was given to the Defendants strictly for construction and purchase of equipment for the Stroke Centre, failed to tender the letter from the Federal Ministry of Health wherein the purpose of the seed grant was expressly detailed. The presumption of law under Section 167(d) of the Evidence Act, is that the Prosecution withheld the evidence because it is not favourable to its case.

The third count relates to the 2nd Defendant giving false/misleading statement to officers of the ICPC about payment of N57 million to a company for the supply of medical equipment, without disclosing that the sum of N37 million had been retrieved, contrary to Section 25(1)(1) of the ICPC Act. On this count, the court found that the Prosecution witness(es) did not show how the said non-disclosure was aimed at misleading the officers. Thus, on the authority of SARAKI v FRN (supra) the evidence led in support of the count is neither sufficient, nor of such quality that a reasonable tribunal can convict on.

Count four borders on the Second Defendant making false/misleading statement to the Commission, about purchase of the Prado Jeep from the account of the 3rd Defendant and from the SURE-P seed grant. Relying on the evidence and findings on count two, the court held that there is no tenable evidence to support the fact that the vehicle was purchased from the seed grant, in view of the evidence of the Defendants’ personal funds in the said account. Regarding count five, the Prosecution alleged that the 2nd Defendant, with intent to conceal and frustrate the Commission in its investigation, deliberately refused to submit to the Investigators, copies of the proposal made to SURE-P Committee for the seed grant, contrary to Section 15 of the ICPC Act. The court noted that the key elements of this offence under Section 15 are that the Defendant destroyed, altered, mutilated or falsified any of the items listed in the section. From the evidence on record, there is nothing suggesting that the 2nd Defendant did any of the acts criminalised under Section 15 of the ICPC Act. Also, the evidence led did not disclose an intent to frustrate the investigation, as the Second Defendant informed the Investigators that their system had crashed and directed the officers to where they could obtain copies of the document at SURE-P office, Ministry of Health and the Senate.

Counts six and seven relate to conspiracy between the 2nd and 3rd Defendant to furnish the Commission with false returns in respect of purchase of the Prado Jeep from the SURE-P seed grant, and conspiracy to frustrate the investigation by refusing to furnish the Investigators with copies of the proposal submitted to SURE-P Committee. Relying on the findings on counts two and five, the court held that the Prosecution did not establish a prima facie case against the Defendants. Further, the Prosecution did not show how the Second Defendant was able to conspire with the Third Defendant, who is an artificial person, knowing that the offence of conspiracy requires meeting of the minds of the parties – OSIKI v INT’L PORTS LTD (2015 LPELR-24435(CA).

Count eight is to the effect that the Defendants committed criminal breach of trust by dishonestly misappropriating the sum of N186 million from the SURE-P seed grant, contrary to Section 311 and punishable under Section 312 of the Penal Code. Referring to its earlier finding that there is no admissible evidence that the seed grant was to be used strictly for construction and equipping the Stroke Centre, the court found that the account given by the Defendants show that the spending was connected to the project, and not spent on the Defendants personally; they did not even draw salaries from the account. Thus, there is no evidence to support the count.

The trial court noted that the Petition upon which the Commission launched the investigation in this case was not against the Defendants, but against a staff of SURE-P Secretariat. There was no report from any Government agency indicting the Defendants; no mandate authorising the Commission to recover SURE-P funds as alleged; the supposed investigation conducted was shoddy, the Investigating Officers did not contact the Auditor appointed by SURE-P or get the audit report for their investigation. The court condemned this unwarranted Charge and trial of the First and Second Defendant, and the damage done to their reputation since their arraignment in court, given the effort of the Federal Government in rebuilding the negative image of the nation in the international arena.

Charge Dismissed.

Representation

O.E. Akponimisingha, Esq. (Principal Legal Officer, ICPC) for the Prosecution.

J.N. Egwonwu, SAN with A.I. Elekwa, Esq.; M.C. Buba, Esq.; N.C. Ulasi, Esq.; and N.R. Ukaegbu, Esq. for the Defendants.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An Affiliate of Babalakin & Co.)