CAN INEC INITIATE PROCEEDINGS FOR THE PROSECUTION OF OFFENCES COMMITTED UNDER THE ELECTORAL ACT WITHOUT RECOMMENDATION FROM AN ELECTION PETITION TRIBUNAL

IBRAHIM MOHAMMED UMAR v.  FEDERAL REPUBLIC OF NIGERIA & ORS (2021) LPELR-53936(CA)

JUDGMENT DATE: 14TH APRIL, 2021

JUSTICES: CHIDI NWAOMA UWA, JCA

BITRUS GYARAZAMA SANGA, JCA

JAMILU YAMMAMA TUKUR, JCA

DIVISION: YOLA

PRACTICE AREA: Criminal Law and Procedure – Offence of Conspiracy – Offence of Receiving Monetary Benefit

FACTS:

The Appellant in the appeal was 1st Defendant before the Adamawa State High Court while the 1st Respondent was the complainant. The Appellant with the 2nd Respondent were tried for the three-count charge of:

i. Conspiracy to corrupt public officers contrary to and punishable under Section 26 (1) (c) and (d) of the Corrupt Practices and Other Related Offences Act, 2000. (ICPC ACT, 2000).

ii. Corruptly procuring monetary benefit contrary to and punishable under Section 9 (1) (a) and (b) of the same Act.

iii. Receipt of monetary benefit contrary to and punishable under Section 10 (a) (i) and (ii) of the same ICPC Act, 2000. 

At the trial, the 1st Respondent called fourteen (14) witnesses and tendered several documents while the Appellant and the 2nd Respondent called three (3) witnesses which included a witness (DW3) summoned on subpoena of the trial Court issued on the Resident Electoral Commissioner of the Independent National Electoral Commission (INEC), Yola in respect of which the legal officer with the commission appeared, through whom documents were tendered and admitted in evidence.

At the close of the trial, the Appellant was convicted on all three counts and sentenced to seven (7) years imprisonment on each of the three (3) counts which were to run concurrently having found that the Appellant corruptly collected the sum of N362,000,000.00 (Three Hundred and Sixty-Two Million Naira) for himself and others to get monetary benefit.

The Appellant who was dissatisfied with the decision of the trial court appealed to the Court of Appeal. 

ISSUES FOR DETERMINATION:

The appeal was determined on the following issues:

1. Whether the trial Court was right to have assumed jurisdiction over the case. 

2. Whether from the totality of evidence elicited before the trial Court and by Law, the trial Court was right in convicting and sentencing the Appellant for the offences contained in the three-count charge against the Appellant.

Under issue one, the learned counsel to the Appellant had contended that the offences for which the Appellant was tried and convicted are Electoral Offences, therefore that the trial court lacked jurisdiction to have entertained the matter which was alleged to be within the offences under Section 124 (1)(a), (b), (c), (d) and (e) of the Electoral Act, 2010 (as amended). It was argued that the trial Court was in error when it assumed jurisdiction over offences that fell within Electoral Offences.

In arguing his issue two, the Appellant submitted that the alleged offences were said to have been committed in 2015, the three-count charge was dated 10/7/2017. The learned counsel posed the question as to which Law would be applicable, whether the Corrupt Practices and Other Related Offences Act, 2015 or 2017? It was submitted that the extant Law as of 2015 is the Corrupt Practices and Other Related Offences Act, 2003 and not the non-existing Act of 2000 under which the Appellant was arraigned. 

DECISION/HELD:

In the final analysis, the Court that the appeal fails for being unmeritorious, it was thereby dismissed. The Court affirmed the decision of the Trial Court in respect of the Appellant, his conviction and sentence.

RATIOS:

1. ELECTORAL MATTERS – INDEPENDENT NATIONAL ELECTORAL COMMISSION – Whether the Independent National Electoral Commission can initiate proceedings for the prosecution of offences committed under the Electoral Act without a recommendation from an Election Petition Tribunal

“An Election Petition Tribunal may recommend (for the purpose of prosecution) to the Independent National Electoral Commission (INEC) for the prosecution of offenders under the Act but, INEC could initiate such proceedings especially where the election in question was not challenged. Section 149 provides thus: 149. “The commission shall consider any recommendation made to it by a Tribunal with respect to the prosecution by it of any person for an offence disclosed in any election petition.” The above provision makes it mandatory for the commission to consider any recommendation made to it by an election tribunal for the prosecution of offenders under the Act, this is only when and where a recommendation is made, by the clear wordings of Section 149 of the Act. This does not mean that the commission cannot initiate proceedings where a recommendation is not made, for instance where the election is not contested as in the present case. The above Section did not limit the investigation and prosecution to only cases where a recommendation has been made by an election petition tribunal. The appropriate agency or body may investigate and prosecute in appropriate cases without a recommendation from an election Tribunal.” Per UWA, J.C.A. 

2. CRIMINAL LAW AND PROCEDURE – OFFENCE OF CONSPIRACY: Nature of the offence of conspiracy; whether the quality of evidence relied upon in a charge for conspiracy should compel the Court to make an inference as to the guilt of an accused

“The offence of conspiracy is often hatched in utmost secrecy. It occurs where two or more people agree to carry out the act, the plot is an act itself and taken as the act of each of the parties, an act capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means/purpose. In ODUNEYE vs. THE STATE (2001) 1 SC (PART 1) 1 at 6-7 on proof of criminal conspiracy his lordship Achike, JSC held that:

“A conviction for conspiracy is not without its inherent difficulties . . . . a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence which is “evidence not of the fact in issue but of other facts from which the fact in issue can be inferred . . . . Evidence in this connection must be of such quality that irresistibly compels the Court to make an inference as to the guilt of the accused.”

See PATRICK NJOVENS vs. THE STATE (1973) 5 SC 17; DABOH & ANOR vs. THE STATE (1977) 5 SC 22; KAZA vs. THE STATE (2008) 1-2 SC 151 at 164 – 165, ONYENYE vs. THE STATE (2012) ALL FWLR (PT. 643) 1810, SHURUMO vs. STATE (2010) LPELR – 3069 (SC) PP. 32 – 34, PARA. A, YAKUBU vs. STATE (2014) LPELR – 22401 (SC) PP. 13 – 144, PARAS. C-A, SA’ADU vs. STATE (2018) LPELR – 44709 (CA) PP. 26 – 28, PARAS. B-F, PHILIP vs. STATE (2019) LPELR – 47388 (SC) P. 38, PARAS. B-F and OGU vs. C.O.P (2017) LPELR – 43832 (SC) at 34 – 36, PARAS. F-B. The evidence relied upon must be of such quality that it irresistibly compels the Court to make an inference as to the guilt of the accused.” Per UWA, J.C.A. 

3. CRIMINAL LAW AND PROCEDURE – OFFENCE(S): Ingredients of the offence of receiving monetary benefit

“On the third and last arm of issue two, receiving monetary benefit contrary to and punishable under Section 10 (a), (i) and (ii) of the ICPC Act, 2000:}

10. “Any person who –

(a) asks for, receives or obtains property or benefits of any kind for himself or any other person; or agrees or attempts to receive or obtain any property or benefit of any kind for himself or any other person; on account of –

i. anything already done or omitted to be done, or any favour or disfavour already shown to any person, by a public officer in the discharge of his official duties or in relation to any matter connected with the functions, affairs or business of a Government department, public body or other organization or institution in which the public officer is serving as such; or

ii. anything to be afterwards done or omitted, or any favour or disfavour to be afterwards shown to any person, by a public officer in the discharge of his official duties or in relation to any such matter as aforesaid, is guilty of an offence of official corruption and shall on conviction be liable to for seven years.”

The ingredients required to be proved under the third arm of the second issue are:

(a) The offender must be a public officer.

(b) That he asked for benefit of any kind for himself or for any other person in respect of something to be afterwards done.

(c) That he asked for benefit in the course of discharge of his official duties.” Per UWA, J.C.A.