CHIEF RASHEED LADOJA v. FEDERAL REPUBLIC OF NIGERIA & ANOR
(2014)LCN/6863(CA)
RATIO
CAN A PROSECUTOR FRAMES A CHARGE UNDER A LAW CREATED FOR ANOTHER AGENCY
Exclusively, and without concurrent powers to be shared between the two and such a charge will not find a place to stand under section 167 of the Criminal Procedure Act, because the phrase therein “any objection to every perceived irregularity” in other words, can the absence of power under the substantive law, and not procedural be considered as an irregularity covered by virtue of section 167 of the Criminal Procedure Act. The important thing about “the charge” the law is already trite, in any Criminal case is that, it must tell the person accused enough, so that he may know the case alleged against him and prepare his defence for “the fact that a charge is made” is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. The charge must not therefore have defects or errors which could mislead the accused. In order to determine that every legal condition, required by law to constitute the offence charged was fulfilled, a distinction must be drawn between substantive and procedural laws. The Supreme Court in the case of Atolagbe V. Awuni (1977) 9 NWLR (Pt. 522) 536 at 575 stated as follows:
It is pertinent at this juncture to point out that distinction between substantive law and procedure can be quite difficult at times. Broadly speaking, however procedural or adjectival law relates to practice and procedure, that is the rules according to which the substantive law is administered. It prescribes the method for enforcement of rights and duties and obtaining redress for wrongful invasion of those rights as well as the enforcement of obligations or duties.
On the other hand, substantive law is concerned with the creation, definition, limitation of obligation. How then does a substantive law become applicable to a cause or matter? Again the Supreme Court in Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt.312) 382 at 472, stated as follows: It is trite Law that the substantive Law existing at the time a cause of action arises governs the determination of the action and the rights and obligations of parties must be determined in accordance with the substantive law when the cause of action arises. A change of Law after the cause of action has arisen will not affect accused rights and obligation unless the change is made retrospective. Attorney General of Lagos State V, Dosunmu (1989) 2 NWLR (Pt.111) 522; Alao V. Akano (1988) NWLR (Pt. 71) 431; Uwaifo V. Attorney General of Bendel State (1982) 7 SC 124.
In Rossek’s case (supra) the Supreme Court used the word MUST (underline mine) which is a command or directory that the rights and obligation of parties must be determined in accordance with the substantive Law when the cause of action arises. In the instant appeal, it is a common ground that the substantive Law that governs the cause of action from the charge was the Money Laundering [Prohibition) Act Cap M18 LFN 2004, and it is exclusive only to the National Drug Law Enforcement Agency to place surveillance on such issue. As the trial judge puts it “I cannot find any provision in the Act which empowers the Economic and Financial Crimes Commission to prosecute alleged offenders under the Act.” It follows therefore, from the views of the trial court that by law, only the National Drug Law Enforcement Agency had the powers to have filed the charge against the Appellant. Also therefore, it is the only Agency that can initiate prosecution of the Appellant under the enabling Law. In effect therefore, for the Economic and Financial Crimes Commission to prosecute the Appellant under that Act, such prosecution cannot be said to have been initiated under a due process of the Law.
Since the Supreme Court said the rights and obligations of the parties must be determined in accordance with the substantive Law when the cause of action arises, the condition precedent for the exercise of the jurisdiction of the trial court has not been fulfilled. The submission of the learned Senior Counsel to the Appellant that, the issue of jurisdiction of a Court to adjudicate over a matter before it is a threshold issue and goes to the root or foundation of adjudication. This stems from the trite position of the Law that once it is discovered that a court has no jurisdiction to adjudicate over a matter, any decision/proceeding emanating from such a court regarding that matter, no matter how well rendered or conducted is a nullity. The authorities cited by the learned Senior Counsel on this subject are: See: Madukolu & Ors. V. Nkemdilim (1962) 1 All N.L.R. 581; Leedo Presidential Motel v. B.O.N. Ltd & Anr. (1998) 10 NWIR (Pt. 570) 353 at 390 – 391 and Management Enterprises Ltd. V. Otusanya (1987) 2 NWLR (Pt. 55) 179 (all cited). The issue of the substantive Law therefore, touches on the very foundation or the substratum of the entire matter and the power of the trial court to assume jurisdiction on such a matter. This no doubt has gone beyond the phrase “used in section 167 of the Criminal Procedure Act. The matter of substantive cannot be waived by the act or the conduct of the accused person/Appellant, as against the procedural or adjectival Law. I find a lot of relevance here, the Supreme Court’s decision in Ndayako V. Dantoro (2004) 13 NWLR (Pt.889) 187 at 219 (cited by the learned Counsel to the Respondent). At paragraph C – H the apex court stated thus:
“It is noteworthy that a distinction must be drawn between two types of jurisdiction V12 – jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction in the court where the constitution or a statute or any provision of the Common Law say that the Court shall have no jurisdiction. A litigant may submit to the procedural jurisdiction of the court e.g. where a writ has been served outside jurisdiction without Leave. Reor V. Ewing (1883) 22 Ch.D 456, 463. See Practice and Procedure of the Supreme Court; Court of Appeal and High Courts of Nigeria by T. Akinola Aguda, 1980 Editional page 86 paragraph 7.03. In the case of Noibi V. Fikolati (1987) 1 NWLR (Pt.52) 619 at 632, it was held that where a party consented to a wrong procedure at the trial court and infact suffers no in Justice, it would be too late to complain on appeal that a wrong procedure was adopted. Thus, where an action was commenced by irregular procedure and Defendant did not complain but took active part therein, he cannot later be heard to complain and take advantage of the irregularity. See also Nasco Management Service Ltd. v. A.N. Amaku Transport Ltd. (1999) 1 NWLR (Pt. 588) 576 at 588. Per SIDI DAUDA BAGE, J.C.A
