Appeal Court

“I do not think it is an exaggeration to say that the word “all” in construing a statute is extremely recalcitrant, and if the word “all” is to cut down so as to exclude certain things which might come under the description, that must be done in the clearest possible language. The proper way of construing a word like the word “all” in such a contest as this is to say that “all” means “all” and it does not mean “some”, unless you find a compelling context which forces you to place some limitation on the word.”

The EFCC therefore being an agency of the Federal Government can initiate proceedings in the name of the Federal Government even though it has been vested with powers to sue and be sued in its name. See OLUESE V. FRN & ANOR (2013) LPELR-22016(CA)

Section 211 of the Constitution talks about the power of the State Attorney-General to prosecute, but decidedly the word ‘may’ used in that Section does not restrict the delegation of the Attorney-General’s power to only officers in his department, see AMADI V. FRN (SUPRA). If we take Section 174(1) of the constitution, it is my view that the Economic and Financial Crimes Commission (Establishment) Act 2004 is one enactment by the National Assembly of the Federal Republic of Nigeria, and so the Attorney General of the Federation shall have power to institute and undertake criminal proceedings against any person before any court of law in Nigeria, in respect of any offence created by or under any Act of the National Assembly.

But the offences of stealing and issuance of dishonoured cheques contrary to Section 390 (8) (b) of the Criminal Code Law C17 Vol. 2 Laws of Lagos State of Nigeria 2003 and Section 1(1) (a) of the Dishonoured Cheques (offences) Act, Cap D11 Laws of the Federation of Nigeria 2004, cannot be isolated, as they constitute the phrase “any offence” in Section 174(1) (a) of the Constitution of the Federal Republic of Nigeria 1999.

The added authority which is more compelling is the constitutional provision which allows EFCC as any other authority to institute criminal proceedings under Section 211 (1) (b) of the 1999 Constitution, see the case of AMADI V FRN (SUPRA).

Flowing from above therefore even though the charge is based on a Lagos State Law, the EFCC can initiate such proceedings even without a fiat from the Attorney General of Lagos State and if so, it can do in its authorized name and not the name of the People of Lagos. Also, the Attorney – General of the Federation can prosecute in respect to the Economic and Financial Crimes offences, and can carry out such functions in the name and on behalf of the Federal Republic of Nigeria even when prosecuting under a corresponding State Law in the Federation. See AMADI V. FRN (SUPRA). It is my view that the Federal Attorney General has power to prosecute any offence in respect of which the EFCC is concerned.

There is something fundamental that the appellants are losing sight of, this is the supremacy of the constitution over the laws concerning the authority of the EFCC to initiate proceedings.

That is to say that the constitutional provision authorizing any other authority to initiate criminal proceedings cannot be whittled down by a state law like the Criminal Justice Law of Lagos State. Section 77, 69, 70 and 249 of the Administration of Criminal Justice Law, 2011 cannot whittle down the authority of the EFCC in this case.
Also, I have not seen, nor have I been told, what substantial miscarriage of justice the appellants have suffered by the EFCC prosecuting them under the name of Federal Republic of Nigeria.

Talking about the repeal of the law under which the fiat was issued, the contention of the appellants is that the fiat has expired. There are two types of repeal known to our jurisprudence which are:
(i) A repeal with re-enactment (or replacement) of the repealed law; or
(ii) A repeal without replacement
Consequently, the argument of the appellants that the fiat given to EFCC under the repealed law is expired cannot hold. The Interpretation Act saves such action and therefore the fiat is valid. Assuming the fiat was not given at all, the EFCC can still come under the “any other authority” as mentioned in Section 211 of the Constitution to initiate proceedings.

The appellant’s submissions on the procedural requirements are steps to be taken when the initiation of criminal proceedings are undertaken by the office of the Attorney General or when it is done under the powers bestowed on agencies of the state. EFCC has received the highest approval to initiate proceedings in the name of the Federal Government of Nigeria, being a federal agency. This issue is therefore resolved against the appellants.

On the second issue, it is trite that jurisdiction is a threshold matter in any adjudication. The challenge to jurisdiction is based on the use of the name Federal Republic of Nigeria which the appellants contend robs the trial court of jurisdiction. That aspect of the issue has been dealt with earlier and I find that the charge was initiated by due process and therefore the trial court has jurisdiction to hear the case as constituted.

ISSUE THREE & FOUR:
The appellant under issue three challenged the efficacy of a wrongly dated counter affidavit. Arguing issue four, the appellants submitted that the trial court had an obligation to decide between the parties based on the submissions of counsel that there are 2 incompetent charges or information before the court. That one is the original information dated 11th September 2012 while the second is dated 12/11/2012 without any proof of evidence and purporting to amend the first one. That it was filed without the prosecution applying to withdraw the original information. Appellants referred to page 117 – 118 of the record and the case of BASSEY V EKANEM (2001) 1 NWLR (Pt 694) 360 at 376 on duty of court to decide between the parties based on what was canvassed by the parties. They also argued that the charges were incompetent but the trial court glossed over it to find for the prosecution. They finally urged the court to find for the appellants.

RESOLUTION:
The appellants submitted that the counter affidavit dated 9th January 2012 instead of 9th January 2013 was incompetent. The other plank of the argument is that counsel swore to the affidavit. I will start with the second argument. The authority of IBE V ONUORAH (SUPRA) did not say categorically that counsel cannot depose to an affidavit in support of their client’s case. This is because it oftentimes, puts a counsel in a difficult situation if conflicts arise and the court has to take oral evidence to resolve such a conflict. However, the competence of a deponent largely stems from who is a competent witness. This is settled by the Evidence Act, 2011, Section 175 (1).
Therefore, anyone who has relevant evidence to give and is not disqualified by law is a competent witness to testify. See the case of LASUN V AWOYEMI (2011) LPELR – 5116 (CA), OMORINBOLA II V MILITARY GOVERNOR OF ONDO STATE (1995) 9 NWLR (Pt 418) 201 at 22, and SALISU V AMUSAN (2010) LPELR – 9103 (CA).
To be continued next week

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