NWANKWOALA v. FRN (2018)

In The Supreme Court of Nigeria

On Friday, the 23rd day of February, 2018

SC.783/2015

Before Their Lordships

OLABODE RHODES-VIVOURJustice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILIJustice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYIJustice of The Supreme Court of Nigeria
EJEMBI EKOJustice of The Supreme Court of Nigeria
SIDI DAUDA BAGEJustice of The Supreme Court of Nigeria


Between

TEMPLE NWANKWOALA –Appellant

AND

FEDERAL REPUBLIC OF NIGERIA-Respondent

…………………….A…………………….

OLABODE RHODES-VIVOUR, J.S.C. (Delivering the Leading Judgment):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.For clarity, the three counts charge under which the appellant was charged and convicted may be set out as follows:
COUNT 1
CORRUPT DEMAND BY PERSON CONTRARY TO SECTION 10(A)(II) OF THE CORRUPT PRACTICES AND OTHER RELATED OFFENCES ACT 2000.
PARTICULARS OF OFFENCE

That you Temple Nwankwoala (DSP) of the Nigeria Police Force, at Benin City, Edo State on or about 18 of October, 2006, being a Police Officer in charge of the Homicide section attached to the office of the Assistant Inspector General of Police Zone 5, Benin City, did ask or demand for the sum of N1,000,000 (One Million Naira) from Elder Alexander Okiye being a person against whom criminal complaints were made on account of the said criminal complaints being investigated as an inducement to write, secure, procure and confer a favourable report of Elder Alexander Okiye in respect of the criminal complaints and thereby committed an offence punishable ”under” Section 10(a)(II) of the ICPC Act 2000.
COUNT 2
CORRUPT RECEIPT BY PERSON CONTRARY TO SECTION 10(A) (II) OF THE CORRUPT PRACTICES AND OTHER RELATED OFFENCES ACT 2000
PARTICULARS OF OFFENCE

That you, Temple Nwankwoala, (DSP) and an officer in charge of the Homicide Section attached to the office of the Assistant Inspector General of Police Zone 5, Benin City Edo State on or about 6th of November, 2006 did received the sum of N500,000 (Five Hundred Thousand Naira) as gratification from Elder Alexander Okiye against whom criminal complaints were made and being investigated in order to write, secure, procure and confer a favourable report in favour of the suspect, Elder Alexander Okiye in respect of the Criminal complaints made against him, and thereby committed an offence punishable under Section 10(a)(II) of the ICPC Act 2000
COUNT 3
FAILURE TO REPORT OFFER OF GRATIFICATION CONTRARY TO SECTION 23(1) OF THE ICPC ACT 2000 PARTICULARS OF OFFENCE

That you, Temple Nwankwoala, (DSP) of the Nigeria Police Force, being the officer in charge of the 
Homicide section in the office of the Assistant Inspector General of Police Zone 5, Benin on or about 26 October 2006 in the course of investigation of complaints of crimes against one Elder Alexander Okiye was offered gratification by the said Elder Alexander Okiye but refused and failed to report the offer of gratification to any officer of the Independent Corrupt Practices – Commission (ICPC) in Benin city or any Police Officer and thereby committed an offence punishable under Section 23 (1) of the ICPC Act 2000.
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 in these words:
“Having therefore determined the two issues canvassed by the appellant against him, the conclusive effect is that this appeal lacks merit and it is hereby dismissed by me. The lucid and sound decision of Justice E.F. Ikponmwen of the Edo State High Court delivered on the 25th of January, 2013 is hereby affirmed. I also affirm the conviction and sentence of the lower Court.”
This appeal is against that judgment. Briefs were filed and exchanged by counsel.
The appellant’s brief was filed on 28th July 2016, while the respondent’s brief was filed on 1st February, 2017 but deemed properly filed and served on 1st November, 2017.
Mr. O. Ovrawah, learned counsel for the appellant formulated two issues for determination. They are:
ISSUE 1
Whether the learned Justices of the Court below were correct when they held that the trial, conviction and sentence of the appellant under the Corrupt Practices and Other Related Offences Act, 2000 was valid whereas the Corrupt Practices and Other Related, Offences Act 2003 had expressly repealed the 2000 Act?

…………………….B…………………….

ISSUE 2
Whether the learned Justices of the Court below were right when they held that the respondent had proved the offences with which the appellant was charged?

And for the respondent, its learned counsel, Mr. G. Lawal also formulated two issues for determination.
ISSUE 1
Whether the Corrupt Practices and Other Related Offences Act, 2000 under which the appellant was tried and convicted is a valid law.
ISSUE 2
Whether the respondent proved its case against the appellant beyond reasonable doubt.

After examining both sets of issues for determination I am satisfied that they ask the same question. The appellants issue 1 and the respondent’s issue 1 ask whether the Corrupt Practices and Other Related Offences Act, 2000 is a valid law. While the appellant’s issue 2 and the respondent’s issue 2 ask whether the case against the appellant was proved beyond reasonable doubt. Since both sets of issues ask the same question and they address the real grievance of the appellant, i shall resolve this appeal on the issues formulated by the respondent. They are straightforward and more direct to the point.
At the hearing of the appeal on 29 November, 2017 learned counsel for the appellant O. Ovrawah Esq., adopted the appellant’s brief filed on 28 July 2016, and urged the Court to allow the appeal, while learned counsel for the respondent, G. Lawal Esq., adopted the respondent’s brief filed on 1st February, 2017 but deemed duly filed on 1st November, 2017. He urged the Court to dismiss the appeal.
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. The Court of Appeal affirmed the decision of the trial judge.
ISSUE 1
Whether the Corrupt Practices and Other Related Offences Act, 2000 under which the appellant was tried and convicted is a valid law.

Learned counsel for the appellant observed that the appellant was charged, tried and convicted under the Corrupt Practices and Other Related Offences Act, 2000, a repealed statute. Learned counsel for the appellant further observed that when the appellant was arraigned on 24 November 2006, the statute in force was the Corrupt Practices and Other Related Offences Act, 2003, and not the statute of 2000 which had been repealed. Reference was made to Section 3 of the Revised (Laws of the Federation of Nigeria) Act, 2007. He submitted that the appellant can only be charged under an existing statute. Reliance was placed on Osadebay v. A.G. Bendel State (1991) 1 NWLR (Pt.169) p.525.
Concluding, he submitted that the trial, conviction and sentence are unconstitutional, null and void. He urged this Court to resolve this issue in favour of the appellant.
Learned counsel for the respondent observed that in the year 2003 the National Assembly amended the 2000 ICPC Act in violation of a subsisting order of a Federal High Court which restrained all parties from taking action on the subject matter of the suit. He further observed that in Hon. Bala Kaoje & 5 Ors v The National Assembly of the Federal Republic of Nigeria & 13 Ors. Suit No.FHC/ABJ/CS/93/2003, Ruling delivered on 21 May 2003, the Federal High Court declared the ICPC Act of 2003 passed by the National Assembly in violation of the subsisting order of Court as null, void and of no effect, contending that the ICPC Act 2000 is in force. He made reference to AG Ondo State v AG Federation & Ors (2002) 9 NWLR (Pt.772) p.222; Egharevba v F.R.N & 3 Ors (2016) 2 SC (Pt.ii) p.166; FRN v Wabara (2013) 5 NWLR (Pt.1347) p.331

…………………….C…………………….

He urged this Court to resolve the issue in favour of the respondent by affirming the decisions of the trial Court and the Court of Appeal in that the appellant was charged, tried and convicted under a valid and subsisting law of the National Assembly.
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.
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.”
What did the Court of Appeal have to say on the above. That Court said:
“…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 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.
There is in existence the Corrupt Practices and Other Related Offences Act of 2000. In 2003 the National Assembly promulgated the Corrupt Practices and Other Related offences Act of 2003. It has as its commencement date 18 May 2003. In Section 55 supra the Corrupt Practices and Other Related Offences Act, 2000 was repealed. See Laws of the Federation Vol.3 Chapter C31 – 1. 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

…………………….D…………………….

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.
I must observe that since 2003, in the compilation of laws of the Federation the Corrupt Practices and Other Offences Act 2003 could be found. See Laws of the Federation, Vol.3 Chapter C 31 -1 (updated to the 31st Day of December, 2010). A law attains legitimacy and is valid only after it passes through the well laid down procedure. When a law is declared null and void by a Court of law, as is the case with the 2003 statute, it remains so in the absence of a contrary declaration from the Court. When legislation that should not be in the statute books finds its way there, it can only mean that those that did the compilation were not aware of the Court order.
The Corrupt Practices and Other Related Offences Act, 2000 was very much in force when the offences for which the appellant was charged and arraigned were committed.
We are satisfied that the Order of a Federal High Court in Hon. Bala Kaoje & 5 Ors v. The National Assembly of the Federal Republic of Nigeria & 13 Ors. Suit No.: FHC/ABJ/CS/93/2003 which declared the 2003 statute null and void revalidated the 2000 statute.
Consequently, the Corrupt Practices and Other Related Offences Act 2000 is valid. The appellant was tried and convicted on a valid law.
To succeed under count 1 and 3 the prosecution must prove the following beyond reasonable doubt.
(a) That the accused person is a public officer.
(b) That the accused person received or obtains any property or benefit of any kinds for himself or for any other person for anything already done or omitted to be done or for any favour or disfavor 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.

(c) That he asked for the benefits in the course of his official duties.
(d) That the accused person failed to report the offer of gratification to any officer of the Independent Corrupt Practices Commission (ICPC).

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.”
Learned counsel for the appellant submitted that evidence led by the respondent was riddled with inconsistencies and contradictions enough to raise reasonable doubt in the minds of the Courts below.
He further submitted that these doubts should have been resolved in the appellants favour. Learned counsel observed that in testimony in Court PW1 said:
“I and the team members sought and got the sum of N500,000 from the operations funds set aside for such operations in the ICPC. As was standard practice, we photocopied the whole N500,000 in N500 notes of ten bundles totaling 1000 pieces. I also recorded the serial numbers of N500,000 in my own handwriting in the exhibit register kept in my custody.
But in his statement he said:
“….On arrival, I took the lawyer before my head of Department – Bar Falade. We deliberated on the petition and Bar Iluobe arranged for the exhibit money. Suffice it to say that while arrangements were being made, the petitioner was asked to reach DSP Temple to accept N500,000 as part payment for the total sum of N1,000,000.”

…………………….E…………………….

He observed that the only reasonable interpretation is that the complainant, PW2, lawyer Barrister IIuobe who testified as PW3 had provided the exhibit money, contending that this is contrary to the testimony of PW1. He submitted that PW1 is not a credible witness. Reliance was placed on Nwabueze & Ors v. State (1988) 7 SC (Pt.ii) p.157.
He further submitted that another piece of inconsistency was in respect of the date on which the demand was made contending that the respondent’s case did not clear the air around the date the demand for the bribe was made and the source of the money. He further submitted that PW1, PW2 and PW3 are tainted witnesses Reliance was placed on Ishola v. State (1978) 9-10 SC p.59.
Finally he submitted that count 3 lacked precision and is ambiguous contending that the conviction of the appellant on it occasioned a grave miscarriage of justice. He urged this Court to set aside the conviction.
Learned counsel for the respondent observed that the three ingredients for counts 1 and 3 to wit:
(a) the offender must be a public officer.
(b) that he asked for benefit of any kind for or for any other person in respect of something to be after words done.
(c) that he asked for the benefit in the course of the discharged of his official duties.

Were each proved beyond reasonable doubt, contending that the evidence of the prosecution witnesses was uncontroverted and not contradicted. Reliance was placed on Ajibade v. State (2013) 8NCC p.221.
Concluding he observed that the appellant failed to provide compelling and convincing reason to overturn concurrent findings of the two Courts below.
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. The issue is whether a demand was actually made.
A mix up as to the dates the demand was made in the testimony of PW1 and PW2 to my mind is a minor discrepancy. If these discrepancies do not prop up in testimony in Court it may lead to the suspicious that the witnesses were tutored.
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.
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.
Whether there was miscarriage 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

…………………….F…………………….

v. Ukonu (1986) 4 NWLR (Pt.36) p.505.
I fail to see any error in the proceedings which led to the conviction of the appellant by the learned trial judge. I find the handling of the trial by the learned trial judge commendable. That explains why the Court of Appeal had no hesitation affirming the judgment of the trial Court and describing it as a sound decision. I am satisfied that there was no miscarriage of justice.
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. (b) was proved beyond reasonable doubt.
(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.
In the end the appeal lacks merit. The judgment of the Court of Appeal is affirmed.

…………………….G…………………….

Appeal dismissed.
MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with my learned brother, Olabode Rhodes Vivour JSC in the judgment and the reasonings from which he arrived at the decision just delivered. To register that support, I shall make some comments.
This is an appeal against the decision of the Court of Appeal, Benin Division or Court below or Lower Court which upheld the judgment of High Court of Edo State holden at Benin delivered on the 25th January, 2012 wherein the appellant was convicted and sentenced to seven (7) years imprisonment with hard labour for violation of the Corrupt Practices and Other Related Offences Act, 2000.
The appellant’s conviction was consequent upon a two count charge which was later amended with leave of Court to a three count charge bordering on the violations of the provisions of the Corrupt Practices and Other Related Offences Act, 2000 (hereinafter) referred to as “The ICPC ACT 2000”. The prosecution now respondent called four witnesses and tendered fifteen documents, EXHIBITS A-P. The appellant testified in his defence and called one witness and at the conclusion of the trial, E.- F., Ikponmwen J (as she then was) convicted the appellant on count 1 and sentenced him to 7 years imprisonment, discharged and acquitted him on count 2 and convicted, cautioned and discharged him on count 3.
Being dissatisfied with the judgment of the trial Court he appealed to the Court below which affirmed the decision of the trial Court, dismissing the appeal, hence the recourse to the Supreme Court on appeal.
The background facts leading to this appeal have been well set out in the lead judgment and no useful purpose will be achieved to repeat them except for when the occasion calls for a reference to any part thereof.
On the 29th November, 2017 date of hearing, learned counsel for the appellant, Ogaga Ovrawah Esq, adopted his brief of argument filed on 28th July, 2016 and in it framed two issues-for determination, viz:-
(i). Whether the learned Justices of the Court below were correct when they held that the trial, conviction and sentence of the appellant under the Corrupt Practices and Other Related Offences Act,2000 was valid whereas the Corrupt Practices and Other Related Offences Act, 2003 had expressly repealed the 2000 Act? (Ground 1).
(ii). Whether the learned Justices of the Court below were right when they held that the respondent had proved the offences with which the appellant was charged.

Learned counsel for the respondent, George Lawal Esq. adopted the brief settled by Paul Ahmed Bassi Esq. (as he then was), filed on 1st February 2017 and deemed filed on the 1st November 2017. He equally adopted the issues as identified by the appellant.
I shall make use of the said issues as crafted for ease of reference.
ISSUES 1 & 2
i. Whether the Corrupt Practices and Other Related Offences ACT, 2000 under which the appellant was tried and convicted is a-valid law.
ii. Whether the respondent proved its case against the appellant beyond reasonable doubt.

Learned counsel for the appellant submitted that the appellant was charged, tried and convicted under a repealed statute, the ICPC Act of 2000 while the extant law is the ICPC Act of 2004 and the charge initiated in 2006. That by virtue of Section 36 (6) and (8) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the appellant was not charge under an existing law. He cited in aid the cases of Osadebay v. A.G Bendel State (1991) 1 NWLR (pt.169) 525 at 579; Obmiami Brick & Stone (Nig) Ltd v. A.C.B. LTD 1992 (Pt.229) 260 at 309; Akintokun v Legal Practitioners’ Disciplinary Committee (LPDC) (2014) 13 NWLR (PT.1413) 1 at 75 etc.
Mr. Ovrawah of counsel for the appellant contended further that the evidence led by the respondent in proof of the two counts 1 & 3 were full of inconsistencies and contradictions which raised reasonable doubt that ought to have been resolved in favour of the appellant. He referred to the testimonies of PW1 and PW2 which narrowed these contradictions to which the respondent offered no explanations. He cited Raphael Nwabueze & Ors v. The State (1988) 7 SC (Pt.11) 157; Sunday Onuoha & 3 Ors v. The State (1989) 2 SC (Pt.11) 115.

…………………….H…………………….

That in the peculiar circumstances of this case the issue of the date when the demand for the bribe was made is critical and this was not established with certainty which goes to support the denial by the appellant that the demand for bribe did not happen and that he had a loan transaction with PW1 who was the debtor. That a reasonable doubt occurred thereby as PW1, PW2 and PW3 were tainted witnesses whose evidence the trial Court should have taken with circumspection. He relied on Jimoh Ishola v The State (1978) 9-10 SC 59; Oluwole Akindipe v The State (2012) 6 SC (Pt.11) 120; Fred Dapere Gira v The State (1996) 4SCNJ 94;Edoho v. The State (2010)14 NWLR (1214) 651 at 694-695 etc.
Learned counsel for the respondent, submitted that the ICPC Act, 2000 under which the appellant was charged still remains a valid law of the National Assembly. That the 2003 ICPC Act was not a valid Act and this as stated in the case of Hon. Bala Kaoje & 5 Ors v. The National Assembly of the Republic of Nigeria & 13 Ors in Suit No:FHC/ABJ/CS/93/2003 before the Federal High Court Abuja and on the 21st day of May, 2003, E.S. Egbo-Egbo J. Court declared the ICPC Act, 2003 as null and void and revalidated the ICPC Act, 2000 purportedly repealed by the National Assembly and the decision has not been set aside and so the 2000 Act remains extant. He referred to I.F.C. v DSNL Offshore Ltd (2008) 7 NWLR (Pt.1087) 592 at 604; Udeh v Okoli (2009) 9 NWLR (Pt.1141) 571 at 588; A.G. Ondo State v. A.G. Federation & 36 Ors (2002) 9 NWLR (Pt.772).
That there are numerous decisions of the Supreme Court which utilized the ICPC Act of 2000.
For the respondent it was further submitted by learned counsel that the respondent proved the case against the appellant beyond reasonable doubt in counts 1 & 3. That the ingredients of the offences charged and upon which the appellant was convicted were established as required by law through the uncontroverted evidence of the prosecution witnesses. He cited Ajibade v The State (2013) 8 NCC 221 at 245.
That the appellant admitted receipt of part of the money under cross-examination and so no further proof was necessary. He cited Section 29(1) Evidence Act, 2011; F.M.H. v. C.S.A. Ltd (2009) 9 NWLR (Pt.1145) 193 at 214; Akran v. IGP (1960) 1 NSCC 2 at 5; Onyenye v State (2012) 7 NCC 304 at 328-329.
The slant of the challenge by the appellant is that the appellant was tried, convicted and sentenced under the ICPC Act, 2000 which had been repealed by the ICPC Act, 2003 and assuming the Court rules there was a valid Act that the prosecution witnesses PW1, PW2 and PW3 lacked credibility.
Respondent’s counter is that the position of the appellant was from a misconception as to the extant law and that the prosecution effectively discharged the burden on it.
A foray into the historic journey of what really is the extant law, the original Act on the Corrupt Practices and Other Related offences Act (ICPC) was promulgated in 2000 which incidentally is the Law under which appellant was charged, convicted and sentenced. Indeed there was an attempt in 2003 to repeal the 2000 Act and substitute it with an amended version in 2003 but before the process at the National Assembly could be concluded an order of the Federal High Court, Abuja restrained all parties from taking further action on the proposed amendment. Curiously the National Assembly proceeded and produced a Bill of 2003 which when sent for the presidential assent was returned, the President pointing out that there was a valid Court order of restraint. The National Refusal and some of their members approached the Court in the case of Hon. Bala Kaoje & 5 Ors v The National Assembly of the Federal Republic of Nigeria & 13 Ors (suit No: FHC/ABJ/CS/93/2003) before the Federal High Court Abuja.
In a ruling delivered on the 21st day of May, 2003, Egbo-Egbo J declared the said ICPC Act, 2003 passed by the National Assembly in violation of the subsisting order of Court as null, void and of no effect and revalidated the ICPC Act 2000.
I shall quote the salient part of that decision which is thus:-
“…but the Act passed by the National Assembly in violation of a valid order of this Court is hereby declared null and void and of no effect. Consequently the Corrupt Practices and Other Related Offences Act, 2000 which came into effect on 13th June 2000 and was sanctioned by the Supreme Court of Nigeria in Attorney General of Ondo State v. Attorney General of Federation & Ors in a judgment dated 7th June 2002 shall continue to operate in this country until amended or voided by a valid law made through due process of law by the National Assembly.
That Ruling has not been appealed against and so remains valid and subsisting thereby re-enthroning the ICPC Act, 2000

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until such a time in future something is done repealing or amending it. This is so because decisions of Courts of law continue to operate until set aside or overruled on appeal and since that has not happened, the ICPC Act, 2000 remains the extant law. See I.F.C. v. DSNL Offshore Ltd (2008) 7 NWLR (Pt.1087) 592 at 604; Udeh v. Okoli (2009) 7 NWLR (Pt.1141) 571 at 588; A. G. Ondo State v A.G. Federation & 36 Ors (2002) 9 NWLR (Pt.772).
On whether or not the prosecution proved its case against the accused appellant beyond reasonable doubts, it has to be borne in mind that the standard of proof required is beyond reasonable doubt. It is not tantamount to proof beyond all shadow of doubt; as all that is expected is that the evidence is strong enough against the accused to leave only a remote possibility in his favour which can easily be dismissed with the fact that, “it is possible but not in the least probable”, then the burden of proof is discharged, I referred to Mukhtar JSC (as she then was) in the case of Jimoh Michael v. The State (2008) 3 NCC 660 at 690.
The appellant was charged in counts 1 and 3 of the ICPC Act 2000 and in respect to count 1, the ingredients required in the offence created by Section 10 (a) (ii) of the Act which must be proved beyond reasonable doubt are thus:-
(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 the benefit in the course of discharge of his official duties.

In the case at hand the appellant was a serving Deputy Superintendent of Police (DSP) attached to the homicide section of the Assistant Inspector General of Police (AIG), Zone 5, Benin City, Edo State when the alleged offence took place. The prosecution brought PW1, PW2, PW3 and PW4 excerpts of whose testimonies would be stated hereunder, thus:-
PW2.
“I know the accused person. I knew him on the 11th of October, 2006. On that day at 8am, he came to my office with a team of policemen.
He was a Deputy Superintendant of Police (DSP). He came to arrest me upon a petition by one Monday Ebhohimen, an ex-employee of mine. Accused took me to his office at A.I.G Zone 5 and I made a statement. The accused told me that I am a petroleum products diverter, a pipeline vandal and that I owe the petitioner Monday Ebhohimen N2.7 million. 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 18th October, 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 in the process of taking out bail all the persons he would arrest and releasing my vehicles, he would make at least N2 million. That he prefers me 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 on the same point stated categorically:
“…I went to the office of the ICPC in Abuja following my petition on 3rd November, 2006. I went alone . My lawyer went on another date. I see Exhibit ‘C’. I did not know when it was made. I was not present when it was made. The money N500,000 produced was not by me but by ICPC. It was after 11th October, 2006 that the accused person demanded a bribe from me. After I was arrested. I cannot remember the exact date. I cannot remember exactly if it was after the following day I was arrested that the accused demanded the bribe. After, on the 11th October, 2006, the accused person arranged with me that I should come the next day i.e. 12th October 2006, I cannot-remember Whether it was that day that he made a demand for bribe on me because I went on some occasions and did not meet him in the office..
…the only time the issue of N300,000 came up was when I pleaded with accused that I did not have N1 million he demanded. I could only offer N300,000. He still refused. I cannot remember the day I asked accused to come down to N300,000 but it was by telephone…”

In support of the Respondent case, PW3 stated thus: :
“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

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asked PW2 if he will allow me confront the accused with the claim and he agreed and I asked him to come the next day so we can go together.
The next day, we both went to the accused office where I met the accused sitting under a tree behind his office. They brought chairs for us to sit with the accused there as he said anywhere he was, was his office. I told him what PW2 told me and he confirmed it. That he demanded for N1 Million to help PW2, He said he is the O/c pipe line and he was investigating vandalization and diversion of fuel against PW2. That the One Million Naira is little compared with what he would make if he decided to arrest everyone involved in the matter. He told me that if he allowed (sic) to investigate the matter, PW2 would lose more than One Million Naira.”
The learned trial judge held thus:-
”The accused person was acting on his own as his team members were unaware of this payment to PW2 was to make on the day of accused arrest. I cannot find any doubt to puncture the case of the prosecution in this case the deposition of PW2 in EXHIBIT ‘G’ confirms the prosecutions case. More so when by the accused person’s showing in his statement and conduct in going outside the police Zone 5 premises personally to receive the money the allegation is shown to be true.”
The evidence of the prosecution witnesses were not controverted. The PW3 had stated further as follows:-
”…PW2 told me that the general meeting, the accused person called him and told him privately that the alternative to paying that N2Million to Monday is that PW2 would pay N1Million 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 confront the accused with the claim and he agreed and I asked him to come the next day so we can go together. The next day, we both went to the accused office where I met the accused sitting under a tree behind his office. They brought chairs for us to sit with the accused there as he said anywhere he was, was his office. I told him what PW2 told me and he confirmed it. That he demanded for N1 million to help PW2. He said he is the O/c Pipeline and he was investigating vandalization and diversion of fuel against PW2. That the One Million Naira is little compared with what he would make if he decided to arrest everyone involved in the matter. He told me that if he is allowed to investigate the matter, PW2 would lose more than One Million Naira”.
The appellant in evidence admitted meeting PW2 in the course of his official duties thus:-
“..We then invited the suspect- Alexander Okiye (PW2), to react to the petition by Monday Ebhohimen. He made statement to the police.
In respect to count 3 of the charge which had to do with appellants failure to report the offer of gratification contrary to Section 23(1) of the ICPC Act 2000. The ingredients are,
a. The offender must be a public officer.
b. The public officer to whom the offer of gratification is made to must report same together with the name of the person who made the offer, if known to the nearest Officer of the ICPC or a Police Officer.

Section 2 of the Act defines Public Officer thus:-
“Public Officer means a person employed or engaged in any capacity in the public service of the Federation, State or Local Government, Public Corporation or Private Company…”
The appellants testimony under cross-examination helped the prosecution carry out its bouden duty of proof when he answered thus:-
“As O/c Homicide, I had superior officers to whom I report. They are CSP Rabiu Husseni and he reports to Deputy Commissioner of Police who in turn reports to the AIG Zone 5. On 6th November, 2006, Alex Okiye called me on my cell phone and asked me to give him 
my account number, I refused to do so. That he wanted to bring N500,000.00 to pay to Monday Ebhohimen, DW1 the IPO or any other member of the team i.e. Sgt. Iredia Samuel, Sgt. Emmanuel Ngwoke, CPL Francis Akor etc. I did not get to the officers that PW2 was bringing N500,000 because I did not get to the office to inform that my bosses in that I was arrested on the way… before 9am on 5th November 2006 and 9am on 6th November 2006, I did not tell any member of the investigating team of PW2’s phone call that he was bringing N500,000.00 because we do not live together”.
Clearly even from the testimony of the appellant is that there was an offer of N500,000, it is immaterial whether or not appellant received the money, what is important or crucial is that he failed to report to a police officer or to officer of the ICPC of the bribe to him in a matter relating to the duties and functions of his office, See Akran v IGP (1960)

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1 NSCC 2 at 5; Chiokwe v State (2013) 8 NCC 185 at 202-203; Onyenye v. State (2012) 7 NCC 304 at 328-329.
In the confessional statement of the appellant admitted as EXHIBIT B’ he stated as follows:-
“He has offered me money severally in the office in presence of some officers and his lawyer but I told him I do not take bribe.”
This piece of evidence by the appellant was also corroborated by PW3 when he stated thus:-
“At about six o’clock, John Okokhue and some others negotiated the bail running from the accused person to the other officers begging them to assist in begging the accused person to reduce the amount for PW2’s bail from N150,000. At about 7pm I was with John Okokhue when he was gathering money, he personally brought out N10,000 from his pocket, that the accused had agreed to take N50,000. They contributed N50,000. The accused person sent for a bail bond which he filed and PW2 was asked to sign in my presence and asked to go home.
Under cross-examination appellant stated thus:-
”PW2 attempted to bribe me in the presence of his lawyer B.A, Iluobe Esq. his in-law a taxi driver and one Sgt. Irabor through a hand shake with me. He attempted to bribe me twice. The second time was in my office when he bent over my desk to introduce money into my desk but I took him outside”.
Indeed what is at play is an open and shut case as even the evidence of PW3 corroborated the appellant’s extra-judicial statement and that PW3 evidence remained un-impeached. That together with even the testimony of the appellant under cross-examination provided the corroboration if that was asked for. Clearly the prosecution laid before the Court compelling evidence which can only admit remote and fanciful possibilities in the accused/appellant’s favour as to the commission of the offences for which he was charged and there is no fighting chance escaping from the conviction and sentence which the trial Court meted out to him and which the Court of Appeal easily acceded to and affirmed there being no way out of the same findings and conclusion of the trial High Court.
This Court I must say is in the same boat, having no material on which it can hang a reason for an interference with such well grounded concurrent findings.
From the foregoing and the well articulated lead judgment. I too see no merit in this appeal which I dismiss.
I abide by the consequential orders made.
CLARA BATA OGUNBIYI, J.S.C.: I read in draft the lead judgment just delivered by my learned brother Rhodes-Vivour, JSC. I agree that the appeal lacks merit and should be dismissed.
There is no gainsaying that I should over flog the issues raised in this appeal with my learned brother having considered same adequately in his lead judgment which I adopt as mine also and dismiss the appeal in like terms.
Appeal is therefore dismissed.
EJEMBI EKO, J.S.C.: The Appellant, until his arrest and prosecution; was a Deputy Superintendent of Police in the Nigeria Police Force. He was tried on a three count charge of demanding a bribe of N1,000,000.00 from one ELDER ALEXANDER OKIYE, a person being investigated for a criminal offence. He was also alleged to have received as gratification the sum of N500,000.00 from the same ELDER ALEXANDER OKIYE in order to write and confer a report in favour of the said ALEXANDER OKIYE. The two offences are punishable under Section 10(a)(ii) of the ICPC Act, 2000. He was also charged for refusing and or failing to report offer of gratification. The offence is punishable under Section 23(1) of the ICPC Act, 2000.
The Appellant was found guilty and convicted for the offences in count 1 and 3, and ordered to serve 7years in prison in respect of the offences in count 1.
His appeal challenging his conviction and sentence by the trial Court was dismissed by the Court of Appeal, Benin – City. The two issues argued at the Lower Court and this Court are that his conviction and sentence for the offences under the Corrupt Practices and Other Related Offences Act, 2000 (ICPC Act, 2000) cannot stand; the said ICPC Act 2000 having been repealed, and that the Respondent did not prove the allegations against him beyond reasonable doubt.

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My Learned brother, OLABODE RHODES-VIVOUR, JSC, in the lead judgment just delivered has considered in extenso the two issues and found them unmeritorious. I am in complete concurrence.
It is correct, as submitted by the learned counsel for the Appellant, that the Appellant can only be charged and prosecuted for an offence under an existing statute: OSADEBAY v. A.G. BENDEL STATE (1991) 1 NWLR (Pt.169) 525. Section 36(8) of the 1999 Constitution reiterates that rule of law: that no person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence.
The peculiar circumstance of this case, however, does not support the submission of the learned counsel for the Appellant. The ICPC Act 2003, that purportedly repealed the ICPC ACT 2000 under which the Appellant was tried, was declared a nullity by the Federal High Court on 21st May, 2003 in HON. BALA KAOJE & ORS v. THE NATIONAL ASSEMBLY & ORS. This decision of a Court of competent jurisdiction having not been appealed or set aside remains extant, persistent and binding. The effect is that the ICPC Act, 2000, and not the ICPC Act, 2003, remains a valid statute in the corpus juris of the Laws of the Federation. It is not in dispute, and it has to be pointed out, that Section 4(8) of the Constitution expressly subordinates “the exercise of the legislative power by the National Assembly to the jurisdiction of Courts of law” unless the Constitution otherwise provides. The Federal High Court exercising this undoubted superior jurisdiction nullified the ICPC Act. 2003.
Historically, the ICPC 2000 has survived several assaults on it. A.G. ONDO STATE V. A.G., FEDERATION & ORS (2002) 9 NWLR (PT.772) 222 affirmed the constitutional authority of the National Assembly to enact this same ICPC Act, 2000 in one of the earliest assaults on this ICPC Act 2000. This latest attack, on the grounds that the still born ICPC Act, 2003 had repealed the ICPC Act 2000 is a non starter.
The second issue argued in this appeal in a clear invitation to this Court to disturb the concurrent judgment of the trial Court and the Court of Appeal on facts. This Court has stated and re-stated for decades in several consistent judgments the policy that this Court, as the third tier appellate Court will not lightly interfere with concurrent findings of fact: OMETA v. NUNA (1934) 11 NLR 18 (PC). It will not, unless under special circumstances, hear arguments seeking to disturb concurrent judgments of the two Courts below on pure questions of fact: SERBEH v. KARIKARI (1939) 5 WACA 34. It has always remained the policy, since the days of the Privy Council, that the Apex Court will decline to review the evidence for the third time unless there are some special circumstances which justify the departure from that practice: NANKA-BRUCE V. GBEKE PC No. 56 of 1948 -OLISA CHUKURA: PRIVY COUNCIL DIGEST. The Appellant has not shown any good cause why this Court should depart this fossilised practice in this case. In any case, My Learned brother, OLABODE RHODES-VIVOUR, JSC has taken time to painstakingly review the evidence the third time. He finds no substance in the complaint of the Appellant on this issue. I agree, having participated in the conference before the preparation of his Lordship’s opinion expressed in the judgment just delivered.
The appeal lacks substance. I dismiss it and affirm the decision of the Court of Appeal, the subject of this further appeal. Appeal dismissed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Olabode Rhodes-Vivour, JSC., just delivered. I agree entirely with the reasoning and conclusion reached. The appeal lacks merit, and it is accordingly dismissed by me.

Appearances

O. Ovrawah with him,E. Osunde.For Appellant

AND

G. Lawal with him, K. K. Anabraba.For Respondent

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