FEDERAL REPUBLIC OF NIGERIA V. SENATOR ADOLPHUS N. WABARA & ORS. (2013)

Background

This appeal arose from criminal proceedings involving allegations of corruption and gratification. The Federal Republic of Nigeria alleged that the first and second respondents, together with other persons, demanded ₦50,000,000 from the third respondent, who was then Minister of Education, to facilitate the passage of his ministry’s 2005 budgetary allocation. The second respondent was also alleged to have received an additional ₦5,000,000 for facilitating an understanding between the parties.

The prosecution applied to the Federal Capital Territory High Court for leave to prefer a charge without a preliminary inquiry. The application was made under section 185(b) of the Criminal Procedure Code and Order 3 of the Criminal Procedure (Applications for Leave to Prefer a Charge in the High Court) Rules, 1970. It was accompanied by a fifteen-count charge, a list of witnesses, proofs of evidence concerning twenty-one witnesses, and other relevant materials, including statements made by the respondents.

The trial court granted leave on 12 April 2005. The respondents pleaded not guilty and were admitted to bail. They subsequently applied to set aside the leave and quash the charges. They contended, among other things, that the proofs of evidence did not disclose a prima facie case, that statements of important or “star” witnesses had not been attached, that they had effectively already been tried and convicted through a presidential broadcast, that the proceedings violated fair hearing, and that the charges contained an incurable error concerning the date of the alleged offence.

The trial court dismissed their applications. The Court of Appeal reversed that decision, holding that the prosecution’s application was defective and that the leave to prefer the charges ought not to have been granted. The Federal Republic of Nigeria appealed to the Supreme Court.

Issues

1. Whether an application for leave to prefer a charge under section 185(b) of the Criminal Procedure Code must be accompanied by the sworn statements of prosecution witnesses, particularly alleged “star witnesses”.
2. Whether the proofs of evidence supplied by the prosecution disclosed a sufficient prima facie case to justify the grant of leave.
3. Whether the presidential broadcast and the EFCC interim report rendered the proceedings unfair or amounted to executive manipulation of the judiciary.
4. Whether the alleged error in the date of the offence, and other matters relied upon by the respondents, justified quashing the charges before trial.
5. Whether the trial judge improperly exercised his discretion or denied the respondents fair hearing by granting leave.

Ratio Decidendi

The Supreme Court, in the lead judgment delivered by Musa Dattijo Muhammad JSC, allowed the appeal. The Court held that “proofs of evidence” are not the same as the full statements of witnesses. Proofs of evidence are summaries of the evidence expected to be given by witnesses at trial. Order 3 requires those proofs to accompany the application, but it does not require the prosecution to attach or serve the actual witness statements as a condition precedent to the grant of leave.

The purpose of the ex parte application is to enable the judge to determine whether the materials disclose sufficient facts to justify putting the proposed accused persons on trial. The accused are not entitled, before commencement of trial, to insist on being supplied with the statements of potential prosecution witnesses. Any entitlement to inspect or obtain such statements arises subject to the applicable procedural rules and conditions during the trial process.

The Court reaffirmed that the proofs need only disclose a prima facie case, meaning evidence which, on its face, connects the accused with the alleged offence. The judge is not required at this stage to determine guilt, resolve contradictions finally, or conduct a full trial. The materials filed by the prosecution, including the proofs of evidence and the respondents’ cautionary statements, were sufficient to justify the exercise of the trial judge’s discretion.

The Court also explained that where legislation requires the “leave of a judge”, the judge is exercising a judicial discretion. An appellate court should not substitute its own view for that of the trial judge unless the discretion was exercised on wrong principles, relevant matters were ignored, irrelevant matters considered, or the decision was plainly perverse.

Court Findings

The Supreme Court found that the applicable procedural law in the Federal Capital Territory was the Criminal Procedure Code, rather than the Criminal Procedure Act applicable in other parts of Nigeria. The prosecution had complied substantially with section 185(b) and Order 3 of the 1970 Rules by providing the charge, proofs of evidence, relevant statements and the required information about previous applications or preliminary proceedings.

The Court rejected the Court of Appeal’s reliance on the absence of the statements of a supposed star witness. A witness cannot conclusively be treated as “tainted” or otherwise discredited before giving evidence and being cross-examined at trial. The Court further held that arguments concerning the presidential broadcast, the EFCC report, the alleged wrong date, the formulation of the counts and other alleged defects were either premature, matters capable of being addressed at trial, or irrelevant to the central question whether leave was properly granted.

Courts do not ordinarily determine academic or hypothetical questions that are remote from the real controversy. The Court therefore declined to resolve issues which did not affect the validity of the leave application or which properly belonged to the trial.

Conclusion

The appeal was allowed. The judgment of the Court of Appeal setting aside the trial court’s decision was itself set aside, and the decision of the trial court was restored. The case was remitted to the trial court for expeditious hearing and determination.

Significance

This decision clarifies the preliminary threshold for commencing criminal proceedings under the Criminal Procedure Code. It confirms that an applicant seeking leave to prefer a charge must provide proofs of evidence sufficient to establish a prima facie case, but need not disclose the complete statements of prosecution witnesses to the proposed accused before trial. The decision also protects the limited but important discretion of a High Court judge at the leave stage and prevents preliminary applications from becoming substitutes for a criminal trial. At the same time, the judgment preserves the accused person’s right to challenge the prosecution’s evidence, procedural irregularities and alleged defects at the appropriate stage of the proceedings.