COMPTROLLER, NIGERIAN PRISONS SERVICES, IKOYI, LAGOS & ORS V. DR. FEMI ADEKANYE & ORS(2002)

COMPTROLLER, NIGERIAN PRISONS SERVICES, IKOYI, LAGOS & ORS V. DR. FEMI ADEKANYE & ORS

In The Supreme Court of Nigeria

On Friday, the 12th day of July, 2002

SC.183/1999

RATIO

CRIMINAL LAW: INSTITUTION OF CRIMINAL PROCEEDINGS

The Central Bank of Nigeria and Nigerian Deposit Insurance Corporation are also authorities that can institute criminal proceedings under Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994. (See s. 24 thereof). The Attorney-General can institute and undertake criminal proceedings in any court in Nigeria, other than a court martial in respect of any offence and can take over or discontinue any such proceedings instituted by any other authority or person. PER M. A. BELGORE, J.S.C.

CRIMINAL LAW: WAYS OF INSTITUTING CRIMINAL PROCEEDINGS

The Decree No 18 of 1994, that is Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree has clearly set out in s. 24(2) as follows: (2) 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 as he may authorise so to do, and in addition thereto, he may (a) after consultation with the Attorney-General of any State in the Federation, authorize the Attorney-General or any officer in the Ministry of Justice of that state; or (b) if a tribunal so directs or if the Central Bank of Nigeria or the Nigerian Deposit Insurance Corporation so requests authorize any other legal practitioner in Nigeria to undertake any such prosecution directly or assist therein.PER M. A. BELGORE, J.S.C.

LAW OF EVIDENCE: PRESUMPTION OF IRREGULARITIES

By presumption of regularity it is presumed, whenever a private legal practitioner appears for Nigerian Deposit Insurance Corporation or the Central Bank of Nigeria to prosecute criminal offences under Decree No. 18 of 1994, that s. 24(2) (b) has been complied with. PER M. A. BELGORE, J.S.C.

JUSTICES

SALIHU MODIBDO ALFA BELGORE Justice of The Supreme Court of Nigeria

IDRIS LEGDO KUTIGI Justice of The Supreme Court of Nigeria

SYLVESTER UMARU ONU Justice of The Supreme Court of Nigeria

ALOYSIUS IYORGYER KATSINA-ALU Justice of The Supreme Court of Nigeria

AKINTOLA OLUFEMI EJIWUNMI Justice of The Supreme Court of Nigeria

Between

COMPTROLLER, NIGERIAN PRISONS SERVICES, IKOYI, LAGOS
2. DEPUTY COMPTROLLER, IKOYI PRISONS
3. ATTORNEY-GENERAL OF THE FEDERATION Appellant(s)

AND

DR. FEMI ADEKANYE
2. USMAN ABUBAKAR
3. IFEANYI ARTHUR
4. R.K.OSAYAMEH
5. MUFTAU BALOGUN
6. EYO EFFIOM
7. SOLOMON ASEMOTA
8. CHUKA KESHI
9. IBOOK EYO ITA
10. KINGSLEY B.EFFIOM
11. IME EYO
12. INYANG EFFIOM
13. MONDAY ODIYE
14. O. A. FOLORUNSHO
15. ABUBAKAR GABI
16. ELENDU C. C.
17. AGABI JOE I.
18. ETIM UDO
19. PHILIP OGUNSANYA
20. RASHIDI SULAIMAN
21. AKINGBAGBE
22. OLAWALE AFOLABI
23. BABATUNDE AKINYEMI
24. EDWIN ERINMWINGBOVO
25. KINGSLEY IGBOGBO
26. GODWIN OGBONNA Respondent(s)
M. A. BELGORE, J.S.C. (Delivering the Leading Judgment): The appellant, Comptroller, Nigerian Prisons Service, was before the High Court of Lagos by way of an application before the court under habeas corpus for the alleged offences under Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994. The decree provides for bail in exceptional circumstance as provided in s. 26(2) thereof. The conditions for bail, admittedly draconian, could perhaps not be met by the respondents and this led to their choice of High Court to pray for their freedom under habeas corpus proceedings. All the respondents were standing trial in various zones of the tribunals set up purposely under the decree aforementioned. The decree in part II provides for recovery proceedings to be initiated by receiver or liquidator appointed by Central Bank of Nigeria or the Nigerian Deposit Insurance Corporation before the tribunal. The decree provides for jurisdiction exclusively before the tribunal or if expedient, for purpose of their habeas corpus application went before Lagos High Court instead of the tribunal. They claimed they were not on bail, or precisely that they were not granted bail. The present appellants, on being served with motion on notice in respect of habeas corpus proceedings filed notice of preliminary objection challenging the jurisdiction of Lagos State High Court. The objection was argued by a state counsel from Federal Ministry of Justice. The preliminary objection was overruled, meaning that the Lagos High Court ruled it had jurisdiction. This led to appeal to Court of Appeal, Lagos Division.
At the Court of Appeal, the appellants were represented by a Fidelis Nwadialo, SAN, Emeka Ngige, Esq., with him. Nwadialo (now deceased) was a private legal practitioner but claimed he was briefed by Nigerian Deposit Insurance Corporation, the receiver of many failed banks. As a result of the appeal to Court of Appeal, the receiver applied for stay of proceedings before Lagos High Court pending decision in the appeal. But prior to the motion being heard the counsel to respondents, Dickson Osuala, Esq., objected to the appearance of Nwadialo, SAN., which the trial Judge, Hunponu-Wusu, J., overruled. But another application for adjournment of the habeas corpus proceedings was refused. The appellants then proceeded to Court of Appeal with the same motion for stay of proceedings and attempts made to serve the trial court and respondents were resisted as none of them accepted service. Learned trial Judge  went ahead with the habeas corpus proceedings despite this court’s decisions in Vaswani v. Savalakh (1972) 12 SC 77, and Mohammed v. Olawunmi (1993) 4 NWLR (Pt 287) 254. It is of great interest to recast the occurrences before Court of Appeal and trial Lagos High Court. When the appellants discovered that trial Judge was determined to proceed on hearing the habeas corpus application they got Court of Appeal to stay further proceedings on 11th day of February, 1999. On 12th February, the trial Judge was to continue the hearing and his attention was drawn to the order of stay of proceedings by Court of Appeal of the previous day, but he ignored this order. In ignoring this he went ahead to deliver his ruling holding that the motion before Court of Appeal was incompetent! In further proceedings before the Court of Appeal, Osuala, Esq. raised objection that Nwadialo, SAN had no locus standi to appear for the Attorney-General of the Federation. This, to say the least, is bizarre, because the court in normal circumstance regards counsel appearing before them as officers of court who would not deceive the court. The stand of the counsel, Osuala, Esq. to say the least, connotes Mr. Nwadialo had no instruction whatsoever to appear in the case. The presiding Justice then asked Mr. Nwadialo as follows:
“Where is the letter authorising you to appear for the Attorney-General of the Federation” .
Learned senior advocate had to produce confidential letters from Attorney-General of the Federation and from NDIC about how he got briefed. In normal practice these letters were not to be produced lightly as they were privileged communication between client and counsel. Mr. Osuala’s argument was predicated on section 160 of constitution of Federal Republic of Nigeria, 1979 which provides:
“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) to 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,
2. The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department.
(3) In exercising his powers under this section the Attorney General  shall have regard to the public interest, the interests of justice and the need to prevent abuse of legal process.
It is clear from the provisions of s. 160 of the 1979 constitution that the Attorney-General’s powers of public prosecution is not exclusive; the “any other authority or person” in subsection (1) can institute and undertake criminal proceedings. The Central Bank of Nigeria and Nigerian Deposit Insurance Corporation are also authorities that can institute criminal proceedings under Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994. (See s. 24 thereof). The Attorney-General can institute and undertake criminal proceedings in any court in Nigeria, other than a court martial in respect of any offence and can take over or discontinue any such proceedings instituted by any other authority or person.
The Decree No 18 of 1994, that is Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree has clearly set out in s. 24(2) as follows:
(2) 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 as he may authorise so to do, and in addition thereto, he may
(a) after consultation with the Attorney-General of any State in the Federation, authorize the Attorney-General or any officer in the Ministry of Justice of that state; or
(b) if a tribunal so directs or if the Central Bank of Nigeria or the Nigerian Deposit Insurance Corporation so requests authorize any other legal practitioner in Nigeria to undertake any such prosecution directly or assist therein.
By presumption of regularity it is presumed, whenever a private legal practitioner appears for Nigerian Deposit Insurance Corporation or the Central Bank of Nigeria to prosecute criminal offences under Decree No. 18 of 1994,  that s. 24(2) (b) has been complied with. Whoever asserts that it has not been complied with must prove.
To my mind, objection leading to this appeal instead of expanding the horizon of legislative interpretation has unfortunately delayed hearing of the substantive issue. From the foregoing I allow the appeal as deserving great merit and set aside the decision of Court of Appeal. Therefore s. 24(2)(b) of the Decree No. 18 of 1994 has not derogated from the constitution of 1979, s.160 (supra).I. L. KUTIGI, J.S.C.: I read in advance the judgment just delivered by learned brother Belgore, JSC, I agree with his conclusion that the appeal is meritorious. It is accordingly allowed and the judgment of the Court of Appeal is set aside.

S. U. ONU, J.S.C.: Having had the opportunity to read in draft the judgment of my learned brother Belgore, JSC just delivered, I subscribe to his reasoning and conclusion by allowing the appeal. I make similar consequential orders as contained in the leading judgment.

A. I. KATSINA-ALU, J.S.C.: I have read in advance in draft the judgment of my learned brother Belgore, JSC in this appeal. I entirely agree. There is nothing I can usefully add.

A. O. EJIWUNMI, J.S.C.: I have had the privilege of reading in advance the judgment just delivered by my learned brother Belgore, JSC.
For the reasons given in the said judgment leading to the conclusion that the above appeal must be allowed, I also allow the appeal. Appeal allowed.