PROFESSOR M.B. AJAKAIYE & ANOR v. FEDERAL REPUBLIC OF NIGERIA (2010)

PROFESSOR M.B. AJAKAIYE & ANOR v. FEDERAL REPUBLIC OF NIGERIA

(2010)LCN/3673(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 30th day of March, 2010

CA/L/129/2001

RATIO

WORDS AND PHRASES: MEANING OF HABEAS CORPUS

Most undoubtedly, the term HABEAS CORPUS is a Latin Maxim, which simply means “that you have the body” As a prerogative writ, it is employed to bring a person before a court of law, most frequently that the party’s imprisonment, detention or incarceration is not illegal. PER I. M. M. SAULAWA, J.C.A

ORDERS: USES OF THE WRIT OF HABEAS CORPUS

The writ may also be used to obtain a judicial review of (i) the regularity of the extradition process; (ii) the right to or amount of bail; or (iii) the jurisdiction of a court that has imposed a criminal sentence. Also termed writ of habeas corpus; Great writ. See Black’s Law Dictionary, Eighth edition, 2004 at page 728; SECRETARY OF STATE FOR HOME AFFAIRS VS. OBRIEN (1923) AC 603 at 609. PER I. M. M. SAULAWA, J.C.A

ORDERS: NATURE OF THE WRIT OF HABEAS CORPUS

“1504 RE-ARREST AFTER DISCHARGE

“A person who has been discharged from illegal custody on habeas corpus cannot be again imprisoned or committed for or in respect of the same offence: but he is not privileged from being immediately re-arrested on criminal process in relation to some matter other than that in respect of which he has been discharged, although he is privileged from re-arrest an civil process whilst returning to his place of abode from the discharging him. There is therefore, no wound for discharging from custody under a second valid warrant merely because the prisoner has been previously discharged an habeas corpus for an unlawful imprisonment.” PER I. M. M. SAULAWA, J.C.A

LEGAL PRACTITIONER: WHO CAN CHALLINGE A LAWYER’S AUTHORITY TO APPEAR IN COURT

It is a trite and well established principle of law, that when a lawyer (legal practitioner) appears in a court of law and announces that he is duly instructed by a party, the court will have no business inquiring into his authority to appear. The only person that can challenge a legal practitioner’s right or authority to appear in a court of law, is the party he claims to be representing. See ADEKANYE VS. FRN (2005) 15 NWLR (pt. 949) 433. PER I. M. M. SAULAWA, J.C.A

JUSTICES

RAPHAEL CHIIWE AGBO Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMAD MUSA SAULAWA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

1. PROFESSOR M.B. AJAKAIYE
2. MR. DAVID OLUFEMI ADELANA Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

I. M. M. SAULAWA, J.C.A (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, Lagos judicial Division which was delivered on 27th November, 2000 by D. O. Abutu, J in charge No FHC/L/FBCR/17/99, regarding the parties herein, The facts and circumstances surrounding the appeal could be briefly stated as follows:-
The 1st Appellant was the erstwhile Managing Director of the Nigerian Agricultural and Cooperative Bank Limited (NACB) and Chairman of the Board of Nigerian Agricultural & Cooperative Bank Consultancy And Finance Company Limited (NACB-CFC). The 2nd Appellant was the General Manager of NACB-CFC.
The Appellants and two others were sometime in 1994 arrested and investigated for various offences committed against the Failed Banks (Recovery of Debts) And Financial Malpractices in Banks, Decree No 18 of 1994. However, in the course of their detention, the Appellants and others filed an application in suit No M/492/98 upon the prerogative writ of Habeas corpus Ad subjiciendum at the Lagos High Court. They were accordingly released by the said court, but neither discharged nor acquitted.
The two Appellants were later arraigned before the Federal High Court, Lagos, on a 7 counts charge, No FHC/L/FBCR/17/99, thus:-

“COUNT 1
That you Professor Michael Babatunde Ajakaiye (m) being the Managing Director of the Nigerian Agricultural & Cooperative Bank Limited (NACB) and Chairman of the Board of Nigerian Agricultural & Co-operative Bank Consultancy and Finance Limited (NACB-CFC), Alhaji Muhammed Gidada Bakari (m) being the Executive Director Finance of NACB and a member of the Board of NACB-CFC, David Olufemi Adelana (m) being the General-Manager of NACB-CFC and Alhaji Garuba Bature (m) being a Civil Servant with the Kaduna State Urban Property Development Authority (KASUPDA) between the 2nd day of December, 1991 and 18th day of February, 1993 at Kaduna within the jurisdiction of the Tribunal conspired together to engage in illegal acts to wit: granting unautharized and unsecured loons to Alhaji Garuba Bature and thereby committed on offence contrary to Section 96 and punishable under Section 97 of the Penal Code Cap 89 Laws of the Northern Nigeria 1963 read together with Section 3(1)(d) of the Failed Banks (Recovery of Debts) Decree No. 18 of 1994 (as amended).

COUNT 2
That you, Professor Michael Babatunde Ajakaiye (m) being the Managing Director of the Nigeria Agricultural & Cooperative Bank Limited (NACB)and Chairman of the Board of Directors of the Nigerian Agricultural & Co-operative Bank Consultancy and Finance Limited (NACB-DFC) Alhaji Muhammed Gidado Bakare (m) being the Executive Director of Finance of the NACB and a member of the Board of Directors of NACB-CFC, David Olufemi Adelana (m) being the General-Manager of NACB-CFC between the 2nd day of December, 1991 and 25th day of May, 1993 at Kaduna within the jurisdiction of the Tribunal granted or connected with the grant of unautharized and unsecured loans to Alhaji Garuba Bature to the tune of N148,854.557.60 (one hundred and forty eight million, eight hundred and fifty four thousand, five hundred and fifty seven Naira, sixty kobo only) interest inclusive in contravention of the Central Bank of Nigeria Monetary Policy Guidelines and Directives, contrary to Section 58(2)(a) and punishable under Section 58(3) of the Banks and other Financial Institutions Decree No. 25 of 1991 (as amended) read in conjunction with Section 3(1)(d) of Decree 18 of 1994 (as amended).

COUNT 3
That you David Olufemi Adelana (m) between 1991 and 1993 at NACB-CFC Limited, Kaduna within the jurisdiction of the Tribunal being the General Manager of NACB-CFC Limited granted a loan of N2,626,756.26 (two million, six hundred and twenty six thousand, seven hundred and fifty six Naira, twenty six Kobo only) interest inclusive to Regal Quality Limited, a company in which you have a personal interest without disclosing it to Board of Directors of NACB-CFC in breach of the Central Bank of Nigeria Monetary Policy Guidelines and Directives, contrary to Section 58(2)(a) and punishable under Section 58(3) of the Banks and other Financial Institutions Decree No. 25 of 1991 (as amended) and read together with section 3(1)(d) of Decree No. 18 of 1994 (as amended).

COUNT 4
That you David Olufemi Adelana (m) being the General Manager of NACI3-CFC Limited on or about the 16th day of May, 1993 at NACB-CFC Office, Kaduna within the jurisdiction of the Tribunal with intent to defraud forged a resolution purporting that it to be a resolution adopted by the Board of Directors of NAC8-CFC Limited and thereby committed an offence contrary to Section 362 and punishable under Section 364 of the Penal Code Cop 89 Lows of Northern Nigeria 1963 read in conjunction with Section 3(l)(d) of Decree 18 of 1994 (as amended).

COUNT 5
That you David Olufemi Adelana (m) being the General Manager of NACB-CFC Limited, Kaduna on or about the 16th day of May, 1993 at Kaduna within the jurisdiction of the Tribunal fraudulently presented a forged Board resolution of NACB-CFC Limited to Trade Bank Plc as a genuine resolution adopted by the Board of NACB-CFC Limited and used the resolution to obtain the sum of N5,000,000.00 (five million Naira only) from Trade bank Plc and thereby committed an offence punishable under Section 366 of the Penal Code Cap 89 Laws of Northern Nigeria 1963 read together with Section 3(1)(d) of December 18 of 1994.

COUNT 6
That you David Olufemi Adelana (m) being the General Manager of NACB-CFC Limited between January, 1992 and December, 1994 at Kaduna within the jurisdiction of the Tribunal dishonestly misappropriated the sum of N51,009,027.50 (fifty one million, nine thousand and twenty seven Naira, fifty kobo only) being part of the repayment made by the Federal Government to NACB in respect of loans syndicated by the bank for the construction of the Middle/Lower Ogun Kampe and Swashi Dams and thereby committed an offence contrary to Section 311 and punishable under Section 312 of the Penal Code Laws of Northern Nigeria 1963 road in together with Section 3(1)(d) of Decree 18 of 1994.

COUNT 7
That you Alhaji Garuba Bature being a Civil Servant with the Kaduna State Urban Property Development Authority between 2nd day of December, 1991 and 18th day of February, 1993 at Kaduna within the jurisdiction of the Tribunal with intent to cheat, fraudulently induced the Managing Director of NACB, Professor Michael Babatunde Ajakaiye, the Executive Director of NACB Alhaji Muhammed Gidado Bakori, David Olufemi Adelana General Manager NACB-CFC to grant you loans to the tune of N148,854,557.60 (one hundred and forty eight million, eight hundred and fifty four thousand, five hundred and fifty seven Naira and sixty kobo only) interest inclusive by falsely represented yourself to them that you are obtaining the loan on behalf of or as agent of the Kaduna State Government and thereby committed an offence punishable under Section 235 of the Penal Code Cap 89 Laws of Northern Nigeria, 1963 read in conjunction with Section 3(1)(d) of the Decree 18 of 1984.”
The 7 Count charge in question was accompanied by a summary of evidence and list of witnesses, which are contained at pages 5 – 7 of the Record.
It is evident from the Record (pages 8 & 9), that when the case was first mentioned on 21st July, 1999 and later on 3rd August, 1999 in the lower court, only the 4th Accussed, Alhaji Garba Bature appeared in court. The rest of the 1st to 3rd Accused were said to have been at large, thereby warranting the lower court to order thus:-
“It is hereby ordered that a bench warrant be issued for the arrest of the Accused persons to compel their attendance in this court on the 3rd of August, 1999 to which this matters (sic) stands adjourned for mention.” However, on the 30th August, 1999, a motion on notice dated 27th August, 1999, was filed in the lower court by one Ozioko Walter Esq of Dickson D. I. Osuala & Co. seeking the following reliefs:-
“(1) An order setting aside the proceedings of this Honourable court conducted on Tuesday, the 3rd day of August, 1999, and actions (s) (sic) taken there under.
(2) An order setting aside the order for the arrest of the Applicant arising from the proceedings of this Honourable court dated 3rd August, 1999.
(3) An order setting aside charge No.FHC/L/FBCR/17/99 against the Applicant and the proceedings conducted there under.
OR IN THE ALTERNAT1VE
(4) An order striking out the name of the Applicant in charge No FHC/L/FBCR/17/99.
And for such further or other orders as the Honourable court may deem fit to make in the circumstances.”
The said motion was predicated on a total of eleven grounds, a 7 paragraphed affidavit of urgency and an 18 paragraphed affidavit, respectively. A notice of appeal, dated 10th December, 1998 and a ruling of the Lagos State High Court, dated 7th January, 1999, were also attached to the affidavit as exhibits.
The motion proceeded to hearing, at the conclusion of which the lower court delivered a ruling on 2nd November, 1999, wherein the learned trial Judge, Abutu, J; (as he then was) held, inter alia, thus:-
“On the whole I am of the firm view that the charge is competent and that the prosecutor is competent to institute the proceeding. The motions are therefore hereby dismissed.”
Not unnaturally, dissatisfied with the above ruling, the 1st and 2nd Appellants filed the notice of appeal thereof, dated 2nd June, 2003, in the lower court’s registry on 4th June, 2003. The notice of appeal in question was predicated on a total of 8 original grounds of appeal, specifically seeking the following relief:-
“(1) An Order striking out charge No FHC/FBCR/17/99 and restoring the decision of the Lagos High Court (Corum OLUGBANI, J;) doted 7th January, 1999.”
On 22nd May, 2003, the Appellants filed a motion on notice seeking an order for an extension of time within which to file the notice of appeal against the ruling of the lower court ill charge No FHC/L/FBCR/17/99, dated 2nd November, 1999. The application was duly granted by this court on 26th May, 2003.
Parties filed and served their respective briefs of argument. The Appellants’ brief was filed on 8th December, 2005, but deemed properly filed and served on 21st May, 2007. The Respondent’s brief, on the other hand, was filed on 26th October, 2006, but deemed properly filed and served on 26th April, 2009. In the course of writing this judgment, I have observed that a notice of preliminary objection was filed on 25th June, 2007 by the Respondent’s counsel, in the person of one S. K. Atteh. However, the notice is neither supported by any reasonable ground, nor incorporated in the Respondent’s brief. What is more, the Respondent did not seek the leave of the court to move same at the hearing of the appeal. Thus, the purported notice of preliminary objection is incompetent and deemed abandoned. Consequently, it’s hereby struck out.
The Appellants have raised, in the brief thereof, two issues for determination, viz:
“3.1 …
Whether there was 6 valid criminal charge or process commenced before the lower court from which legal consequences can flow?
3.2 …
Whether a person set at forge on a writ of Habeas Corpus Ad subjiciendum can again be re-arrested and prosecuted on the same cause or matter?”
On the other hand, two issues have equally been formulated in the Respondent’s brief, to wit:-
“3.1 …
Whether there was a valid criminal charge or process commenced before the lower court from which legal consequences can flow OR whether the prosecutor who signed the charge has power to institute the criminal proceedings against the Appellants before the lower court.
3.2 …
Whether a person set at large on a writ of Habeas corpus Ad subjiciendum can again be re-arrested and prosecuted on the same cause or matter OR whether having regard to the Order of Olugbami, J; releasing the Appellants un conditionally a Habeas corpus application the Appellants have been acquitted and are therefore not liable to be arrested and prosecuted for the offence charged before the lower court.”
I have appraised the nature and circumstances of this case, the submissions of the learned counsel contained in the respective briefs of argument thereof of vis-‘C3 -vis the record of appeal as a whole. There is every good reason for me to appreciate, and accordingly hold, that the two issues raised in each of the two briefs of the respective learned counsel are not in any way mutually exclusive. Thus, I have deemed it most appropriate to determine this upon the basis of the two raised in the Appellants’ brief, which I believe are more concise than those raised in the Respondent’s brief. However, I have deemed it expedient that the determination of issue No. 2 should precede that of No. 1. That being the case, therefore, the two issues are hereby renumbered in the reverse order i.e. issue No. 2 now becomes No.1, while issue 2 is now No.1, accordingly.

ON ISSUE NO.1:
Issue No.1, as alluded to above, raises the question of whether a person set at large on a writ of Habeas corpus Ad subjiciendum can be re-arrested and prosecuted on the same cause or matter. I have accorded an ample consideration upon the submissions of the learned counsel contained in the respective briefs thereof. Most undoubtedly, the term HABEAS CORPUS is a Latin Maxim, which simply means “that you have the body” As a prerogative writ, it is employed to bring a person before a court of law, most frequently that the party’s imprisonment, detention or incarceration is not illegal.

It is rather instructive, that the notorious case of R. VS. JOHN WILKES (1770) 4 BURR. 2527 at 2563, aptly serves as a good illustration of the efficacy of the prerogative writ of habeas corpus. As it were, John Wilkes had been arrested and detained by the authority of the Secretary of State. He was not charged before any court of law. At the instance of the prisoner, the court issued a writ of habeas corpus and thereby ordered that he be produced at once to inquire whether his detention was lawful or not. The principle had since then been applied by the courts in England in a plethora of cases. The House of Lords was reported to have applied that principle in the case of R. VS. HOME SECRETARY, EX-PARTE KHAWAJA; (1983) 1 ALL ER 765. In that case, the HOUSE OF LORDS affirmed the dictum of Lord Denming, MR (of blessed memory) profounded in the case of R. VS. GOVERNOR OF PENTONVILLE PRISON, EX PARTE AZAM, (1974) AC 18 at 32, wherein the foremost common law erudite jurist postulated thus:
“If a man can make a prima facie case that he is not an illegal entrant, he is entitled to a writ of habeas corpus as of right: See Greene Vs. Home Secretary (1942) AC 284, 302 by Lord Wright. The court has no discretion to refuse it. Unlike certiorari or mandamus, a writ of habeas corpus is of right to everyone who is unlawfully detained. If a prima facie case is shown that a man is unlawfully detained, it is for the one who detains him to make a return justifying it.”

It is a trite and well established general principle of law, that a person released on a prerogative writ of habeas corpus is neither discharged, nor acquitted of the offence for which he was detained, because he has not been formally charged and tried in court of law under the due process of law. Thus, contrary to the contention of the learned counsel of the Appellants, a person released from detention in consequence of a writ of habeas corpus can be rearrested on criminal process, and arraigned before a competent court of law upon a criminal charge. See HALBURY’S LAW OF ENGLAND, it edition vol. II paragraph 1504 at 797 thus:
“1504 RE-ARREST AFTER DISCHARGE
“A person who has been discharged from illegal custody on habeas corpus cannot be again imprisoned or committed for or in respect of the same offence: but he is not privileged from being immediately re-arrested on criminal process in relation to some matter other than that in respect of which he has been discharged, although he is privileged from re-arrest an civil process whilst returning to his place of abode from the discharging him. There is therefore, no wound for discharging from custody under a second valid warrant merely because the prisoner has been previously discharged an habeas corpus for an unlawful imprisonment.”

I think it’s apt to also allude to the well set out provisions of the Habeas corpus Law, CAP 58, Laws of Lagos State, 1994. Most especially, section 7 of that law is to the following effect:
“7. No prisoner delivered or set at large upon any writ of habeas corpus shall at any time be again committed or imprisoned for the same offence by any person. Whatsoever other than by the legal order and process of such court See RE: DOUGLAS (1842) 3 UB 825; R. VS. GOVERNOR OF BRIXTION PRISON, EX PARTE STALLMANN (1912) 3 KB 424; R. VS. SECRETARY OF STATE FOR HOME AFFAIRS, EX PARTE BUDD (1942) 2 KB 14; (1942) 1 ALL ER 373 CA.
wherein he may be bound by recognizance to appear or other court having jurisdiction in the cause, and if any person shall, contrary to this law, unknowingly recommit or imprison or knowingly procure or cause to be recommitted or imprisoned for the same offence or pretended offence any prisoner delivered or set at large as aforesaid, or knowingly and or assist therein, he shall forfeit to the prisoner or person aggrieved, notwithstanding colourable pretence or variation in the warrant of commitment, the sum of thousand Naira to be recovered by an action as for debt In any court of competent jurisdiction.”
See also section 5 of the Habeas Corpus Act, 1679 to statute of general application) which similarly provides, inter alia, that any person who unknowingly recommits a discharged prisoner in consequence of a writ of habeas corpus shall be liable, to a penalty of 500 pounds sterling payable to the aggrieved party.
Thus, in view of the above postulations, it’s rather obvious that a suspected person set at large upon a prerogative writ of habeas corpus ad subjiciendum can be re-arrested and prosecuted on the same cause or matter in a court of competent jurisdiction. The answer to issue No. 1 is undoubtedly in the affirmative, and same is hereby resolved in favour of the Respondent.

ON ISSUES NO.2:
The submission of the Appellants’ learned counsel, Dr. Dickson D. I. Osuala, on issue No.2 is to the effect, inter alia, that as on 27th August, 1999, when the objection to the criminal charge was raised in the court below, the Constitution in force was the Constitution of the Federal Republic of Nigeria 1999. However, when the charge (dated 3rd March, 1999) was filed, the Constitution in force was that of 1979. Reference was made to section 160(1), (2) & (3) of the 1979 Constitution (which is in pari materia with section 174(1), (2) & (3) of the 1999 Constitution) which confers the power of public prosecution on the Attorney-General of the Federation.
It was submitted that the charge was filed on 3,d March, 1999 pursuant to the provisions of the Failed Banks (Recovery of Debts) And Financial Malpractices in Banks Decree No 18 of 1994. See section 24(2) (b) & (b) of the Decree.
A question was posed as to whether the prosecutor was competent to initiate the criminal proceeding against the Appellants when he is not from the Attorney General’s office? That question was said to have been answered in the affirmative by the learned trial judge at page 7 of the ruling (pages 58 – 59 of the Record). It was argued, that the ruling is unsupportable because:
(i) Seidu Kazeem Atteh Esq is a police officer and not a law officer, and not (therefore) competent to initiate and prosecute the Appellants at the lower court. See OSAHON VS FRN (20003) 16 (pt. 845) 89 at 94 to 95 ratios 1 & 4.
(ii) That the ruling was reached per incuriam, without adequate consideration of section 24(2) (b) of Decree No. 18, 1994 and Decree No. 62 of 1999. No evidence of compliance with section 24 (2) (b). That, it’s not controvertible that the charge as formulated is at variance with the express provisions of section 24 (2) (b). The charge is in valid, null and void and no legal consequences can flow (from) or (b) founded upon it.
As the Decree No 62 of 1999 came into force on 28th May, 1999, the “TWENTY-ONE DAYS” commanded in section 4(1) of the Failed Banks Decree No. 18 of 1994 had allegedly elapsed. Consequently, the defunct zone VI of the Failed Banks Tribunal had lost jurisdiction before coming in to force of Decree No 62.
There was no valid charge on which the lower court could have found authority to adjudicate. See Supreme Court’s decision. in SC/31/1997; MISCELLANEOUS OFFENCESTRIBUNAL & ANOR VS. NWAMMIRI EKPE OOROAFOR (2001) 12 SCM 165 per Ejiwunmi, JSC (of blessed memory); MADUKOLU VS. NKEMDILIM 2 SC; NLR 341; SKEN CONSULT & ANOR VS. SECONDY UKEY(1981) 1 SC 15.
It was contended, that the appeal ought to succeed having regard to the Respondent’s reckless disregard of the 1999 Constitution. See OLU OF WARRI VS. PERGBEYI(1994) 4 NWLR (pt. 339) 416 at 437 paras. D – E; 438 – 439 paras. G – A; C; AG BENDEL STATE VS. AG FEDERATION (1982) 3 NCLR 1 at 10; MIL. GOV. OF ONDO STATE VS. ADEWUMI (1988) 3 NWLR (pt. 82) 280; GOV. OF KADUNA STATE VS. KAGOMA (1982) 3 NCLR 1032 at 1044.
It was further argued, that the provisions of Decree No 18 of 1994 are in conflict with Articles of the African Charter on Human and peoples’ rights (Ratification and Enforcement) Act, Cap 10, Laws of the Federation 1990 See ABACHA VS. FAWEHINMI (2000) NWLR (pt.660) 228 at 251 ratio 8.
That, there was no valid charge or process before the lower court to warrant the said court assuming jurisdiction to try the Appellants. See AG. FED. VS. GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (pt. 618) 187 at 233 para D; MADUKOZU VS. NKEMDILIM (1962) 2 SC NLR 341; SI(EN CONSULT VS UKEY (1981) 1 SC; ADEOYE VS. STATE (1999) 6 NWLR (pt. 60S) 74 at 87 paras. E – G; EYORO KOROMO VS. THE STATE (1979) NSCC 61; NDAEYO VS. OGUNAYA (1977) 1 SC 11.
On the whole, it was submitted that the appropriate forum for the determination of the matter is the Kaduna State High Court, and not the Federal High Court Lagos or anywhere in the country, as both count charges are outside the jurisdiction of the lower court. We have been urged to accordingly allow the appeal on this issue (not grounds).
The Respondents’ learned counsel C. O. Aduroja Esq; submits, inter alia, on issue No. 2 that the provision of section 160(1) of the 1979 Constitution recognizes the fact ,that any other authority or person can equally institute criminal proceedings against any person before any court of law in Nigeria. That, by virtue of section 23 of the police Act 1990, where the Attorney General has not exercised his powers under section 160 (1) of the 1979 Constitution, the police officers are (therefore) empowered to conduct the prosecution of any person (including the Appellants) before any court of law. See OLUSEMO VS. COP (1998) 11 NWLR (pt. S7S) S47, per Kalgo, JCA (as he then was).
It was likewise submitted, that sections 4(1) and 24(2) (b) of Decree No. 18 of 1994 were deleted by the Tribunals (certain consequential Amendments, ETC.) Decree No 62 of 1999. That, assuming that the said provisions are still relevant to this case, the Appellants are not competent to question whether or not the authority of the central Bank of Nigeria or the NDIC requested or authorized any other legal practitioner to prosecute the Appellants.
It was contended, that the fact that S.K. Atteh, the police prosecutor was a lawyer is not in dispute, as he was so addressed at pages 11, 19, 28, 43, 56, and 68 of the Record. That the question of who has the locus standi to institute criminal prosecution under section 24(2) of Decree No 18 of 1994 does not arise in view of the fact, that section has been repealed or deleted by Decree No 62 of 1999. See STATE VS. AIBANGBEE (1988) 3 NWLR (pt. 84) 548 at 578 – 579 per Eso, JSC. ADEKANYE VS. FRN (2005) 15 NWLR (pt. 949) 433 at 438 paras. B – C. per Onnoghen, JCA (as he then was).
Most especially, the court has been urged upon to adopt the decisions in ADEKANYE VS FRN (supra) and that of STATE VS. AIBANGBEE (supra). It was further submitted, that, the police Act, 1990, being an existing law within the provisions of section 274 of the 1979 Constitution, it’s a law (equally) recognized by the 1999 Constitution. That, by virtue of section 214 (2) (b) of the 1999 Constitution, the members of the (Nigeria) Police Force are enjoined to exercise such powers and duties as may be conferred upon them by law. The powers conferred on the Attorney General under the Constitution to prosecute any person is allegedly not exclusive. Such powers can be exercised by the police, where the Attorney General fails to initiate criminal proceedings.
The learned counsel also contended, that the case of SAHON VS. FRN (2003) 16 NWLR (pt. 845) 89, relied upon by the Appellants, was allegedly decided without reference to the decision of the Supreme Court in STATE VS. AIBANGBEE (supra). That, the representation of parties does not affect the jurisdiction of the court. See ADEKANYE VS. FRN (supra) at 458 paras D – E; 462 paras D; MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLW 587.
That, by virtue of section 251 (1) & (3) of the 1999 Constitution, it’s the Federal High Court, and not the Kaduna State High Court, that has jurisdiction to entertain the instant case. See NEPA VS EDEGBERO (2002) 18 NWLR (pt.798) 79 at 97 paras. E – G, per Uwais, CJN; section 230 of the 1979 Constitution which is the same with section 251 of the 1999 Constitution.
Issue No.2, as alluded to above, raises the vexed question of whether there was a valid charge or process commenced before the lower court from which legal consequences can flow. The said issue is predicated on grounds 1- 5 of the grounds of appeal. The argument of the learned counsel is contained at pages 3- 22 of the Appellant’s brief.
A charge, as a noun denotes a formal accusation of an offence as a preliminary step to the prosecution of an accused before a court of law. In the instant case, it’s rather obvious from the submissions of the learned counsel in the respective briefs thereof vis-a-vis the records of appeal as a whole, that Seidu Kazeem Atteh, apart from having been a senior police officer, was also a qualified lawyer and legal practitioner in Nigeria within the meaning and contemplation of the provisions of the Legal Practitioners Act CAP207 of Laws of the Federation of Nigeria, 1990 (CAPC. 23 Laws of the Federation, 2004). He is by virtue of the law in question alone, entitled, and has the absolute right and privilege, to appear and be accorded an audience in any court of law or tribunal throughout the country. See OLUSEMI VS. COP (1998) 11 NWLR (pt. 575) 547 at 558 paras. G-H.
Thus, most undoubtedly, Mr. Atteh had the right to appear and prosecute cases, both criminal and civil, in any court, the lower court inclusive, without the authorization or fiat of the Attorney General, Federal or State, or any body for that matter.
The issue under consideration inarguably questions the locus standi or competence of Mr. Atteh, as a senior police officer simpliciter, to prosecute criminal cases before the lower court without the authority or fiat of the Attorney General of the Federation. The provision of section 23 of the police Act (CAP.359 of the Laws of the Federation of Nigeria, 1990) (and now Laws of the Federation of Nigeria, 2004) is to the following effect.
“23 subject to the provisions of sections 160 and 191 of the Constitution of the Federal Republic of Nigeria (relating to the Federal and State Attorney-General’s power to institute and undertake, take over, continue and discontinue criminal proceedings against any person before any court of law in Nigeria) any police officer may conduct in person all prosecutions before and court whether or not the information of complaint is laid in his name.” Bradlets added for clarification.
By virtue of the above provision of section 23 of the police Act (supra), it’s rather indisputable that any police officer, Mr. Atteh inclusive, has the power to conduct in person all prosecutions before any court of law in Nigeria, including the lower court, although the exercising of such power is strictly subject to the well set out provisions of sections 160 and 190 of the 1979 constitution (supra). For ease of reference, I have deemed it expedient to reproduce herein below the provisions of the said sections 160 of the 1979 constitution:
“160.(1) The Attorney-General of the Federation shall have power:-
(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly;
(b) take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.” See also sections 174 and 211 of the 1999 constitution, which are in pari material with sections 160 and 190 of the 1979 constitution (supra).
I think, it’s apt to, at this stage in time, clarify the meaning and effect of the phrase ‘subject to’ as couched under section 23 of the police Act (supra). In the notorious case of TUKUR VS. GOVT OF GONGOLA STATE (1989) 4 NWLR (pt.117) 517 at 565, the Supreme Court was reported to have held, inter alia, thus:
The expression “subject to” is often used in statutes to introduce a condition, a proviso, a restriction, a limitation. See THOMPSON OKE VS. ROBINSON OKE (1974) ALL NLR (pt.1) 443 at 350.”
…whenever the expression (“subject to”) is used at the commencement of a statute, it is an expression of limitation the section or sub section is “subject to” shall govern, control, and prevail over, what follows in that section or subsection of the enactment.”
It was likewise authoritatively held by the apex court in the case of LABIYI VS. ANRETIOLA (1992) 8 NWLR (pt. 258) 139 at 163 – 164 that:-
“The phrase “subject to” in a statute introduces a condition, a proviso, a restriction and a limitation. The effect is that the phrase evinces an intention to subordinate the provisions of the subject to the section referred to which is intended not to be affected by the provisions of the latter. Thus, where the expression is used article commencement of a statute, as in section 1(2) of Decree 1 of 1984, it implies that what the subsection is “subject to” shall govern, control and prevail over what follows in that section or subsection of the enactment.”
See also OKE VS. OKE (1974) ALL NLR (pt.1) 443; AQUA LTD VS. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (pt. 9) 622; TUKUR VS. GOVT OF GONGOLA STATE (supra) 517, respectively.
Thus, it’s rather obvious, that by the interpretation of the apex court in the plethora of authorities referred to above, the provisions of section 23 of the police Act (supra) ought to be considered to be rather restricted, limited, or controlled by the provisions of sections 160 and 190 of the 1979 (supra) That’s to say, the provisions of the constitution shall govern and prevail over the provisions of section 23 of the police Act (supra).
However, it must be reiterated, for the avoidance of doubt, that while the provisions of the constitution evince an intention to substitute the provisions of section 23 of the police Act, the latter are not rendered ineffective altogether, except where the former provisions are applicable. That’s to say, the exercise of the power to prosecute in court of law by a police officer, under section 23 of the police Act, can only be effected where the provisions of sections 160 & 190 are not invoked.
It’s trite that by virtue of the provisions of sections 160 (1) (a), (b) & (c) and 191 (1) (a), (b) & (c) of the 1979 constitution (supra), the Attorney General of the Federation and of the State, as the case may be, have been conferred with unequivocal powers to institute and undertake any criminal proceedings in any court of law in Nigeria; to take over, continue or discontinue at any stage of the proceedings of any criminal proceedings, that may have been instituted or undertaken by any person in a court of law. Thus, the decision whether or not to take over, continue or discontinue any such criminal proceedings entirely depends on the Attorney General concerned. The power in question is inarguably exclusive to the Attorney General concerned. He does not share it with anybody, no matter how eminently placed.
In the instant case, it’s rather indisputable that the Attorney General had not opted to exercise the powers conferred there upon under section 160 of the constitution to institute or undertake any criminal proceedings against the Appellants. The powers of the police to prosecute or institute the criminal proceedings against the Appellants in the court below had not been limited restricted or controlled in any way. Thus, Mr. Atteh, qua police officer, was undisputably competent to institute and prosecute the criminal proceedings against the Appellants in any court of law in Nigeria, the court below inclusive.
A question was posed by the Appellant at page 13 of the brief thereof as to:-
“Who has the locus standi to institute criminal prosecution under section 24 (2) of the Decree No. 18 of 1994.”
The provisions of the Failed Banks (Recovery of Debts) And Financial Malpractices in Banks Decree No. 18, 1994 are to the following effect:
“24 (1) ”
(2) …
(a) prosecutions for offences under this Decree shall be instituted before the Tribunal in the name of the Federal Republic of Nigeria by the Attorney General of the Federation or such officer in the Federal Ministry of Justice so to do, and in addition, he may …
(b) if a Tribunal so directs or if the Central Bank of Nigeria or the Nigeria Deposit Insurance Corporation so requests, authorize any, other legal practitioner in Nigeria;
To undertake any such prosecution directly or assist there in.”
It was the contention of the Appellants’ learned counsel that Mr. Atteh being a police officer, and not a law officer, he cannot, therefore, institute and prosecute the Appellants at the lower court. The case of OSAHON VS. FRN (2003) 16 (pt. 845) 89 at 94 – 95, a decision of this court was cited and relied upon in support of the above contention.
I entirely agree with the contention of the Respondent’s learned counsel (page 13 of the Respondent’s brief) to the effect that in view of the fact that section 24 (2) of Decree No. 18, 1994 had been repealed or deleted by Decree No. 2 of 1999 (at page A 1962 under part 1 of the schedule), the question of the locus standi to institute criminal prosecution did not arise.
It is a trite and well established principle of law, that when a lawyer (legal practitioner) appears in a court of law and announces that he is duly instructed by a party, the court will have no business inquiring into his authority to appear. The only person that can challenge a legal practitioner’s right or authority to appear in a court of law, is the party he claims to be representing. See ADEKANYE VS. FRN (2005) 15 NWLR (pt. 949) 433. In the instant case, it is rather obvious that neither the court, nor the Appellants have the authority or locus standi to question the representation of the Respondent by Mr. Atteh, a police officer, a qualified practitioner in his own right.

I have appraised the nature and circumstances surrounding the case of SAHON VS. FRN (2003) 16 NWLR (pt. 845) 89, cited and relied upon by the Appellants’ learned counsel in the submission thereof. That case, I must hold, does not seem to support the case of the Appellants, especially in view of the decisions of this court in OLUSEMO VS. COP (supra); ADEKANYE VS. FRN (supra); the Supreme Court’s decision in STATE VS. AIBANGBEE (1988) 3 NWLR (pt 84) 548 at 578 – 579; NEPA VS. EDEGBERO(2002) 18 NWLR (pt.798) 79 at 97 paras. E – G; MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 587, respectively.
As postulated above, there is no doubt that the provision of section 23 of the police Act (supra) is not, in any way whatsoever, in conflict with the provisions of sections 160 and 191 of the 1979 constitution. Undoubtedly, the said provisions of section 3 of the police Act supplement, rather than whittle down or being in conflict with sections 160 and 190 of the 1979 constitution. And I so hold! See OLUSEMO VS. COP (supra) at 563 para. H and 564 para. A, per Ejiwunmi, JCA, of blessed memory, (as he then was) thus:
“It is self evident from the legislation to which reference have been made that the only fetter in law to the prosecution of cases by a police officer is in the exercise of the power of the Attorney General of the Federation or that of the State to which reference have been made above. Lower court was therefore right to have held that the police officer who appeared for the respondent had the right to so appear and conduct criminal prosecution against the appellant.”
In the light of the foregoing far reaching postulations, I have no hesitation whatsoever in coming to the inevitable conclusion that the answer to the second issue ought to be in the positive, and same is hereby resolved in the Respondent’s favour.
I have, at this point in time, deemed it expedient to observe that the fundamental thrust or objective of setting up the defunct Failed Banks Tribunals under the Failed Banks (Recovery of Debts) And Financial Malpractices Decree No. 18 of 1994, was to radically sanitize the corruptly debilitated financial community, with a view to ridding the institutions of corrupt officials and fraudsters.
It is a notorious fact, that over the years, Government had been taken to task for the executive indiscipline thereof. Efforts were made by previous Military administrations to sanitize the polity and instill discipline in the public service by introducing various programmes, including War Against Indiscipline (WAI) and War Against Indiscipline And Corruption (WAIC), et al. However, it is an altruism, that a genuine war against indiscipline and corruption cannot successfully be fought by the government alone. This is definitely so, because it’s the general belief that the government itself constitutes a major cause of indiscipline and corruption in the country. I think, it was NICCOLO MACHIAVELLI, Who stated, rather aptly in my view, that:-
“Public affairs are easily managed in a city (notion) where the body of the people is not corrupt.”
See MACHIAVELLI: THE PRINCE, WORDSWORTH Edition, 1997 at 113.
The above statement of Machiavelli was undoubtedly predicated on the sound reasoning that corruption, in all its ramification, is abhorrent and
I despicable in the eyes of the people, and thus demeans any leader who happens to be corrupt. According to Machiavelli:-
“Above all, a prince (a leader) makes himself odious by rapacity, that is, by taking away from his subjects their property and their women, from which he should carefully abstain …
A prince becomes despised when he incurs by his act, the reputation of being variable, inconstant, effeminate, pusillanimous, and irresolute; he should therefore guard against this as against a dangerous rock, and should strive to display in all his actions grandeur, courage, gravity and determination. And in judging the private causes of his subjects, his decisions should be irrevocable.” See MACHIAVELLI, opcit, at 70.
Inarguably, the above exhortation by Machiavelli remains as relevant in today’s World, as it was in the sixteenth century (1513), when the book was written. Thus, a genuine war against indiscipline and corruption must be waged by Nigerians, and the well meaning civil society and non-governmental organizations.
Hence, having resolved both issues in the Respondent’s favour, there is no gainsaying the fact that the present appeal is devoid of any merit, and ought to thus be dismissed by this court. Consequently, the appeal is hereby dismissed by me for being unmeritorious. The ruling of the lower court, dated 2nd November, 1999, is hereby affirmed.

RAPHAEL CHIKWE AGBO, J.C.A.: I have read before now the lead judgment of my learned brother SAULAWA, JCA and I agree with the conclusions contained therein. The judgment is quite exhaustive and I have nothing useful to add. I too dismiss the appeal as unmeritorious and affirm the ruling of the lower court.

REGINA OBIAGELI NWODO, J.C.A.: I was privileged to read in draft the Judgment just delivered by my learned brother, SAULAWA, J.CA I agree with the reasoning contained therein and the conclusion arrived thereat that this appeal is devoid of any merit.
I also dismiss the appeal and abide by the consequential orders made therein.

Appearances

C. O. Aduroja with him Miss O. OlusanyaFor Appellant

AND

Appellants counsel was served on 22/12/2009 but absent and unrepresented.For Respondent