OKEY JIBULU V FRN
In the Court of Appeal
HOLDEN AT LAGOS
Thursday, July 9, 2015
Suit number: CA/L/635/2013
JIBSON MOTORS ……. Appelant
FEDERAL REPUBLIC OF NIGERIA ……. Respondent
UZO I. NDUKWE – ANYANWU JUSTICE COURT OF APPEAL
TIJJANI ABUBAKAR JUSTICE COURT OF APPEAL
YARGATA BYENCHIT NIMPAR JUSTICE COURT OF APPEAL
Judgment delivered by Yargata Byenchit Nimpar (JCA).
This appeal is against the ruling of HON. JUSTICE D. O. OLUWAYEMI of the Lagos State High Court delivered on the 18th day of March, 2013 wherein the trial court dismissed the preliminary objection challenging the competence of the charge against the appellants.
Summary of facts
The respondent initiated criminal proceedings against the appellants for the issuance of dud cheques. Upon commencement of trial, the appellant as accused person made an application on notice to the court seeking an order striking out the seven counts and statement of offence against him on the grounds that the court lacked jurisdiction to entertain same and that the charge against him constitutes an abuse of court process. This was opposed by the respondent. The court after considering the parties argument on the application dismissed same. Aggrieved with the dismissal, the appellant appealed to the Court of Appeal.
The appellant formulated 4 issues for determination namely:
(1) Whether the Federal Republic of Nigeria can file a competent charge and/or information before the High Court of Lagos State.
(2) Whether the Trial Court has jurisdiction to adjudicate over the charge and/or information filed by the Economic and Financial Crimes Commission.
(3) Whether in the circumstances of this case, the trial court was right to have held that the counter – affidavit of the respondent wrongly dated 9th January, 2012 instead of 9th January 2013 was competent and worthy of consideration.
(4) Whether in the circumstances of this case, the trial court ought not to have decided between the parties herein on the basis of what was canvassed and argued in court.
The appellants raised questions as to whether the respondent can file a competent charge because it has no authority to do so before the Lagos State High Court. They contended that the charge is incompetent and robs the court of jurisdiction while citing Section 69, 70 and 77 of the Administration of Criminal Justice Law of Lagos State, 2011.
Appellants challenged the finding of the court that the EFCC has authority to file charges citing Section 249 of the ACJL, 2011 arguing that the charge should have been in the name of “The People of Lagos State.” They argued that the word “shall” used in the above section, implies mandatoriness as held in the case of ACHINEKU V ISHAGBA (1988) 4 NWLR (Pt 89) 411 at 420. They submitted that where the law stipulates a procedure for doing an act, it must be adhered to or else the court is divested of jurisdiction citing NWANKWO V YAR’ADUA (2011) 13 NWLR (Pt 1263) 81 at 133 and DANTATA V MOHAMMED (2012) 8 NWLR (Pt 1302) 366 at 380.
On the effect of want of jurisdiction, appellants relied on ALHAJI RAIMI EDUN V ODAN COMMUNITY & ORS (1980) 12 NSCC 279 at 287 and also stated the role of the judiciary which is to interpret the law, the different arms of government clearly stated in the case of AMOSHIMA V STATE (2011) 14 NWLR (Pt 1268) 530 at 562.
Appellants submitted that criminal proceedings can no longer be done in the name of the Attorney General of Lagos but “The People of Lagos State” and that the manner the charges were filed contravenes the law and robs the court of jurisdiction. They relied on GOVERNOR, KWARA STATE V DADA (2011) 14 NWLR (Pt 1267) 384 at 392; KADA V STATE (1991) 8 NWLR (Pt 208) 134 at 155 and MELAYE V TAJUDEEN (2012) 15 NWLR (Pt 1322) 315 at 341 on an incompetent process.
On the fiat EFCC exhibited as authority, appellants contended that it has expired because the Criminal Code and Criminal Procedure Law existing in 2004 have been repealed and what is subsisting in Lagos State is the ACJL, 2011. Appellants in their submissions contended that only the Attorney General of the State is empowered by the constitution to institute criminal proceedings and relied on AMADI V F.R.N. (2008) 18 NWLR (Pt 1119) 275 where Section 211 (1) of the 1999 Constitution was interpreted.
They urged the court to find for the appellants under issue one.
The appellants challenged the jurisdiction of the trial court and contended that the case of MADUKOLU V NKEMDILIM (1962) 2 SCNLR 341 settled the parameters of jurisdiction and also the case of AMADI V F.R.N. (SUPRA) which expanded the 3 factors necessary for jurisdiction. They argued that the charge here was not initiated by proper process as the fiat issued by the Attorney General in 2004 tied it to the Criminal Code and Criminal Procedure Law which existed as at 2004. But, that upon repeal of the said two laws, the fiat also lapsed thereby robbing the court of jurisdiction, they relied on KANO TEXTILE PLC V G & H (NIG) LTD (2002) 2 NWLR (Pt 751) 420 at 450 to urge the court to find for the appellants under issue two.
This is an interlocutory appeal against the ruling of the lower court dismissing the preliminary objection of the appellants and challenging the competence of the charge against the appellants and the jurisdiction of the trial court. The charge was reproduced earlier in this judgment.
Issue one borders on the competence of the Federal Republic of Nigeria to file a charge and or information before the High Court of Lagos State. The constitution of the Federal Republic of Nigeria by Sections 211 empowers the Attorney General of the state to institute, take over or discontinue criminal proceedings in the state.
The EFCC which initiated the proceedings has been described in the case of AMADI V FRN (2008) 18 NWLR (Pt 119) 259 at 276 as follows:
“Indeed the EFCC is a common agency for both the Federal and State economic and financial crimes, and as such, it qualifies as any other authority to institute criminal proceedings under Section 211 (1) (b) of the constitution of the Federal Republic of Nigeria, 1999.”
The appellants here challenged the use of the name of Federal Republic of Nigeria which presupposes that they have no problem with EFCC initiating the proceedings. The issue of what name to initiate proceedings by the EFCC has been settled by the Supreme Court in the case of NYAME V FEDERAL REPUBLIC OF NIGERIA (SUPRA) which held thus:
“The Economic and Financial Crimes Commission which initiated the charges can only do so in the name of the Federal Government and not Taraba State as an agency of the Federal Government.”
The appellants in their reply on points of law contended that this authority cannot apply herein because the charge was under the penal code and the issue there was the appropriate venue and territorial jurisdiction. And I say that if as in that case venue and territorial jurisdiction could not stop the EFCC from initiating prosecution over cases that it has been empowered by the EFCC Act to do, how then, can it be an issue where venue and territorial jurisdiction is not in issue? The appellants have failed to appreciate the capacity of the EFCC as empowered by the EFCC Act particularly Section 6M, 7(2), 13(2).
The EFCC is vested with powers to initiate proceedings in any court in Nigeria for the offences bordering on economic and financial crimes even under state laws. The most interesting part is the use of the word ‘all’ in Section 6(m) which is wide and encompassing.
The word “all” was given judicial consideration in the case of BRAITHWAISE V G.D.M (1998) 7 NWLR (Pt 557) 307 at 327 where the court said thus:
To be continued next week
“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.
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).
The affidavit was deposed to by a person competent to be a witness. It cannot be discountenanced on that basis. It is worthy of note to see that the wrong date is earlier or before the actual date and year in question and not in advance. But the most fundamental question to ask is if it occasioned a miscarriage of justice or misled the appellants. They did not say so. They only complained about a wrong date which they admitted was an error and the appellants also knew the date meant to be reflected. If there is no miscarriage of justice occasioned by the error, then it is not a complaint that has any substance. This issue is resolved against the appellants.
It is the duty of the court to decide all issues put forward by the parties in any matter. Are there 2 incompetent charges before the court? The appellants’ complaint is that there is a charge sheet dated 11th September, 2012 and another one dated 12th November, 2012 which is not accompanied by proof of evidence. They admitted arraignment on the amended charge sheet on 12th November, 2012. Having accepted that there was an amendment and that they were duly arraigned on the said amended charge, what then is the complaint? The prosecution has the unfettered right to amend charges at any time before judgment with leave of court. The Supreme Court in the case of UGURU V THE STATE (2002) LPELR – 3325 (SC) held thus:
“This section empowers a court to alter, amend or add to any charge in any criminal case before it at any time before judgment is given in the case. It does not give any condition precedent to its application but ensures that the amended charge be read out and explained to the accused. This mean that whenever the prosecution decides to amend the charge already before the court, it can proceed to do so without asking for permission or leave to do so it then applies to the court to accept the amendment pursuant to the provisions of Section 163 (ibid) and the court after hearing parties, may or may not accept or allow the amendment. If it allows the amendment, the amendment charge shall replace the original charge and shall be read and explained to the accused as the new charge. If it rejects the charge, the original charge remains.”
An amendment relates back to the original date of the document so amended, see F.R.N. V ADEWUMI (2007) 10 NWLR (Pt 1042) 399. The necessity of a charge is to give the accused person adequate notice of the case against him to enable him prepare to meet the case in court with his defence. The beauty in criminal trials is that the burden of proof is entirely on the prosecution from beginning to the end.
Should the prosecution have filed a fresh proof of evidence? I think not. The only aspect affected by the amendment was the charge and therefore there is no need to file fresh proof of evidence. Furthermore, once there is an amendment, the original charge is replaced by the amended charge and that is why the accused must take a fresh plea on the amended charge. The prosecution still has the right to file additional proof of evidence if it so desires before the close of its case.
Arraignment having taken place without objection to the charge, can the appellants complain at this stage? Again, the appellants did not state that the amendment occasioned a miscarriage of justice to them. There is no substance in this issue and it is resolved against the appellants.
This appeal is devoid of substance, it is merely a ploy to delay the trial of the case at the lower court.
Accused persons should know that the prosecution has a higher burden to prove the allegations against persons accused beyond reasonable doubt before there can be conviction. It is only fair to also allow the prosecution ventilate its allegations before a court of law. As parties, they are entitled to a fair hearing too. The practice of appealing to the Court of Appeal on any ruling of a trial court against suspects should stop. It does not augur well for our administration of criminal justice.
This appeal lacks merit and is hereby dismissed. The ruling of the trial court delivered by HON. JUSTICE D. O. OLUWAYEMI on the 18th day of March, 2013 is hereby affirmed.
Counsel: ABIDUN AKINBIYI – APPELLANT