DR. ERASTUS B.O. AKINGBOLA v. FEDERAL REPUBLIC OF NIGERIA & ANOR.
(2012)LCN/5201(CA)
In The Court of Appeal of Nigeria
On Monday, the 5th day of March, 2012
CA/L/706/11
RATIO
THE POSITION OF THE LAW WHERE AN ACT IS REPEALED
A repeal is a removal or reversal of a law. There are two basic types of repeal, a repeal with re-enactment (or replacement) of the repealed law, or a repeal without replacement. A typical situation where an Act is repealed and re – enacted is where the law in the area is being updated but the law being repealed needs to be replaced with a modern version. The Administration of Criminal Justice Law, 2007 is a replacement of the 2003 Law; so to all intents and purposes the 2007 Law is an update of the 2003 version of the same Law. An amendment of the information can be made to reflect the 2007 Law.
The crucial issue to be resolved is the interpretation of Section 256(1) of the Law which stipulates as follows:- “256(1) Subject to the provisions of this Section, an information shall be filed by the Attorney – General through the Director of Public Prosecutions or by any officer in his department, or by any other person authorised under this Law to do so, before the High Court charging any person with an offence for which that person shall lawfully be tried”. PER. KUMAI BAYANG AKAAHS, J.C.A.
CRIMINAL LAW: STATUTORY AND JUDIICIAL PROVISIONS ON THE POWER OF THE ATTORNEY-GENERAL TO INSTITUTE CRIMINAL PROCEEDINGS
I agree with the submissions of learned senior counsel of the 1st respondent that Section 211(1) of 1999 Constitution as amended (which overrides sections 77, 256 and 373 of the Administration of Criminal Justice Law of Lagos State 2007) that other persons could institute criminal proceedings. The Section provides as follows:-
“211(1) The Attorney – General of a State shall have power:-
(a) To institute and undertake criminal proceedings against any person before any court of law in Nigeria other than court martial in respect of any Law of the House of Assembly
(b) To take overt and continue any such criminal proceedings that may have been instituted by any 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”
Anybody or authority is competent to initiate criminal proceedings against an offender, once he is granted the fiat to do as we are all our brothers’ keepers. See: Fawehinmi v Akilu (1987) 4 NWLR (Pt.67) 797. This includes an institution such as the EFCC set up to fight corruption in all its facets and economic crimes. In Comptroller of Prisons v Adekanye (2002) 15 NWLR (Pt.790) 318, Belgore J.S.C. (as he then was) in interpreting Section 160 of the 1979 Constitution which is similar to Section 211 of the 1999 Constitution stated at page 329:- “It is clear from the provision of section 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 the 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.” PER. KUMAI BAYANG AKAAHS, J.C.A. PER. KUMAI BAYANG AKAAHS, J.C.A.
CRIMINAL LAW: THE POWER CONFERRED ON THE ECONOMIC AND FINANCIAL CRIMES COMMISSION TO INSTITUTE CRIMINAL PROCEEDINGS
Recently, the Supreme Court knock the bottom out of the Appellant’s argument in the case of AMADI vs. FRN (2008) 18 NWLR (PT. 1119) 259 at page 276 of the report, where Mukhtar JSC held: “Indeed, the EFCC is a common agency for both the Federal and the 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 1999 Constitution. That being the case, Mr. Hassan, being a staff of the EFCC who signed the charge was competent to do so. Any staff of the EFCC can exercise the power delegated to the EFCC in exhibit A.” Since the Attorney General of Lagos State does not have the Monopoly of initiating criminal proceedings in the Lagos State High Court under the state law, the argument of the Appellant cannot in any way stand. The point therefore is that from the foregoing, even if Information was filed without the Attorney General of Lagos State signing same, that would be of no moment as the words of the provisions quoted above show that, any person or authority other than the Attorney General of Lagos than the Attorney State can sign the Information herein. The EFCC has rightly initiated criminal proceedings under the state law but the Attorney General of Lagos State only has an overriding power to either take over or discontinue such action. That being so, it is only the Attorney General of Lagos State that can complain about the exercise of the power by the EFCC, but definitely not the Appellant herein. Furthermore, the Economic and Financial Crimes Commission (EFCC) is expressly conferred with power under sections 6(m), 7 (2) and 13 (2) of the ECONOMIC AND FINANCIAL CRIMES COMMISSION (ESTABLISHMENT) ACT, 2004 to initiate criminal proceedings in any Court in Nigeria for any offence bordering on economic and financial crimes even under the Criminal Code. Section 7 (2) (f) states: “In addition to the powers conferred on the Commission by this Act, the Commission shall be the co-ordinating agency for the enforcement of the provisions of (f) any other law or regulation relating to economic and financial crimes, including the Criminal Code and Penal Code.” PER. KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
DR. ERASTUS B. O. AKINGBOLA Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA
BAYO DADA Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Lagos State delivered on 31st day of May, 2011, wherein the Court dismissed the appellant’s application and assumed jurisdiction to entertain the information by the Economic and Financial Crimes Commission in charge No.ID/148C/2011.
On the 5th of May, 2011, the 1st respondent filed an information at the Ikeja Division of the High Court of Lagos State in Charge No. ID/14BC/2011.
In the said information the appellant and the 2nd respondent were charged with several offences bordering on stealing and obtaining, money under false pretences under the Criminal Code of Lagos State. Before the appellant was arraigned and his plea taken in respect of the counts contained in the information the appellant filed an application dated 19th May, 2011 wherein he urged the court to inter alia decline jurisdiction to entertain the information and a further order of injunction restraining the 1st respondent from arraigning him. Written addresses were filed by counsel to the parties and oral submissions were also made at the hearing of the application on the 31st May, 2011. In his ruling the learned trial Judge dismissed the application and assumed jurisdiction to try the appellant.
Being dissatisfied with the Ruling the appellant filed a Notice of Appeal dated 10th June, 2011 which was subsequently amended by leave of this Court granted on 15th September, 2011 containing 11 grounds of appeal from which the appellant formulated the following 8 issues for determination:-
1. Whether the lower court was right when the learned trial Judge held that the 1st respondent is empowered to file an information and prosecute offences under the Criminal Code of Lagos State and that the information filed by the 1st respondent in that Court was competent (Grounds 1 and 3).
2. Whether it was proper for the learned trial Judge to raise the issue of conflict between the Administration of Criminal Justice Law of Lagos State and the provisions of the Economic and Financial Crimes Commission Act and resolve same suo motu? (Ground 2)
3. Whether the lower court was right when the learned trial Judge held that the fiat – exhibit EFCC 1, purportedly issued by the Attorney – general of Lagos State is valid notwithstanding same was not personally signed by the said Attorney General and that the Criminal Procedure Law pursuant to which it was issued had been repealed (Grounds 4 and 5).
4. Whether the lower court was right when the learned trial Judge held that there was no single fact in the affidavit filed in support of the appellant’s motion dated 19th May, 2011, which contested the convenience of the forum of the Court to try the information filed by the 1st respondent (Ground 6)
5. Whether the lower court was right when the learned trial Judge refused to give effect to the orders, made by the Federal High Court in favour of the appellant (Ground 7)
6. Whether the lower court was right when the learned trial Judge held that the proceedings before the said court did not amount to an abuse of court process? (Ground 8)
7. Whether the lower court was right when the learned trial Judge held that an officer of the 1st respondent was the proper person to certify the fiat – exhibit EFCC 1 and the same was valid and effective? (Ground 9)
8. Whether the ruling of the learned trial Judge was competent and not a violation of the appellant’s fundamental right to fair hearing when the trial judge heard lengthy and copious arguments from counsel and adjourned for fifteen minutes to deliver a ruling which was not in writing or was neither dated nor signed? (Ground 10 and 11)
On its part the 1st respondent raised 9 issues for determination. The Issues are:-
(i) Whether or not the information for the offences of stealing and obtaining by false pretence before the lower court is competent having being filed by the Economic and Financial Crimes Commission (Ground 1 and 3)
(ii) Whether or not the issue of conflict between the Administration of Justice Law 2007 and the Economic and Financial Crimes Commission (Establishment) Act was raised suo moto by the Lower court Ground 2.
(iii) Whether or not the letter dated 12 May, 2004 was for the purpose of prosecuting offenders under the Criminal Code law and whether or not the repeal of the Criminal Procedure law affected the said letter. Ground 4
(iv) Whether the letter, Exhibit EFCC 1, dated 12th may, 2004 from the Attorney General of Lagos State to the Economic and Financial Crimes Commission signed by the Director of Public Prosecution was proper. Ground 5.
(v) Whether the lower court was right to hold that it had the jurisdiction to try the Appellant. Ground 6.
(vi) Whether or not the lower court was right when it held that in the circumstances of this case the arrest and detention of the Applicant had being completed and there is nothing the lower court can do that will affect the rights of the Appellant made in the judgment of the Federal High Court heavily relied on by the Appellant. Ground 7.
(vii) Whether the Appellant herein was able to establish before the lower court that the Information against him at the lower court constitute abuse of court process. Ground 8.
(viii) Whether the lower court was right when it held that Exhibit EFCC 1 which was in custody of the Economic and Financial Crimes Commission was properly certified by an officer of the Commission. Ground 9.
(ix) Whether the ruling of the lower court was proper.
Grounds 10 and 11.
I shall determine the appeal based on the issues formulated by the appellant.
Issues 1, 3 and 7 can be taken together because they form the fulcrum of this appeal.
On issue 1, learned Senior Counsel for the appellant submitted that at the time the 1st respondent filed the information against him at the High Court of Lagos State on 5/5/2011, the Law regulating criminal proceedings in Lagos State was the Administration of Criminal Justice Law 2007. He referred to sections 373 and 374 of the said law and argued that in determining whether the information filed by the 1st respondent was competent, the issue should be resolved within the ambit of the provisions of the Administration of Criminal Justice Law of Lagos State. He submitted that going by section 256(1) of that Law, the information shall be filed by the Attorney General through the Director of public Prosecution or any officer in the department or by any other person authorized to do so. He argued that the phrase “or by any other person authorized under this Law to do so” in Section 256(1) cannot extend to the 1st respondent, since the 1st respondent does not belong to the category of persons who can lawfully institute criminal proceedings in the High Court of Lagos State by way of information. It is argued that the EFCC lacks the jurisdiction to prosecute offences of stealing and obtaining under false pretences as provided in the Criminal Code since the offences are not economic or financial crimes as defined in Section 46 of the EFCC (Establishment) Act, 2004.
In his response to the arguments on issue 1 learned senior counsel for the 1st respondent submitted that the authority to prosecute would come under section 211 of the Constitution. He argued that section 211(1) of the 1999 Constitution as amended envisages the power of other authorities or persons to initiate and institute criminal proceedings within the state aside from the Attorney General of Lagos State and other officers under his department. He cited the following cases in support of the submission: Comptroller of Prisons v. Adekanye (2002) 15 NWLR 318 at 329; F.R.N. v. Osahon (2006) 5 NWLR (Pt. 973) 361 at 406. F.R.N v. Adewumi (2007) 10 NWLR (Pt. 1024) 399 at 427. Amadi v FRN (2008) 18 NWLR (Pt. 1119) 259 at 276 and Pharma Deko Plc v N.S.I.T.F M.B (2011) 5 NWLR (Pt. 1241) 431 at 450 – 451. He further submitted that the EFCC is expressly conferred with power under section 6(m), 7(2) and 13(2) of the EFCC (Establishment) Act, 2004 to initiate criminal proceedings in Nigeria for any offence bordering on economic and financial crimes even under the Criminal Code. He also argued that the power of the EFCC to initiate criminal proceedings even in the State High Court cannot be in doubt. He also submitted that Sections 77 and 256 of the Administration of Criminal Justice Law 2007 do not and cannot derogate from section 211 of the Constitution.
In considering the arguments in issues 1, 3 and 7, I wish to quickly dispose of issue 5 which is questioning the lower court’s refusal to give effect to the orders made by the Federal High Court in favour of the appellant. In the appellant’s motion dated 19th May, 2011, apart from the prayer by the appellant that the lower court should decline jurisdiction to entertain the information filed by the 1st respondent he prayed for an order of injunction restraining the complainant from arraigning the 1st and 3rd defendants/applicants in respect of the information filed in the present charge. According to the learned counsel, upon the unlawful arrest and detention of the appellant by the 1st respondent, an application was filed at the Federal High Court to enforce his fundamental rights, whereupon the court directed the appellant to be released forthwith and the court also ordered that the order made in respect of the appellant should operate as a stay of all actions by the 1st respondent, including the arraignment of the appellant, pending the determination of the Originating motion filed for the enforcement of his fundamental rights. He said the 1st respondent detained the appellant illegally and unlawfully and did not charge the appellant to court for any offence until it became aware of the fundamental rights proceedings instituted at the Federal High Court. Even though the enrolled copy of the orders made by the Federal High Court was served on the 1st respondent, it refused to release the appellant but sought to arraign the appellant in utter disobedience of the orders of the Federal Court. Notwithstanding that the relevant facts relating to the orders of the Federal High Court were brought to the attention of the lower court, the Judge held as follows at page 1188 of the record:
“The facts of the arrest and detention of the 1st and 3rd Defendants and upon which the Federal High Court entered judgments have been consummated and completed and there is nothing this court can say in this present charge that will affect the rights of the first and third Defendants in the orders made in the two judgments. There is nothing in common between the two matters that were decided by the Federal High Court and this court save for, perhaps, the names of the parties….”
Learned counsel has urged this court to hold that the conclusion of the learned trial Judge was perverse and highly prejudicial to the appellant and led to a miscarriage of justice. He argued that whereas the learned trial Judge focused mainly on the arrest and detention of the appellant and did not consider whether the appellant should be released forthwith in line with the order of the Federal High Court or whether the appellant could be arraigned based on the information filed by the 1st respondent. He submitted that the orders of the Federal High Court were binding on the 1st respondent at the relevant time as same was still subsisting and had not been set aside citing the case of Babatunde v Olatunji (2000) 2 NWLR (Pt. 646) 557 at 568 in support. Being courts of co-ordinate jurisdiction the Federal High Court could not make an order for the enforcement of the appellant’s fundamental right to affect the arraignment of the appellant for an alleged offence before the Lagos State High Court. The order made enforcing the appellant’s right was therefore not a bar to the prosecution of the appellant. The learned trial Judge was right to reach the conclusion that there is nothing in common between the two matters that were decided by the Federal High Court and the present charge save for the names of the parties.
Section 373 and 374 of the Administration of Criminal Justice of Lagos State 2007 provide as follows-
“373 This Law shall apply to –
(a) All cases filed after the commencement of this Law; and
(b) Existing cases where the defendant elects to be tried under the Law
374. Subject to the provision of Section 373 of this Law, the Criminal Procedure Law Cap C18, 2003 shall cease to have effect from the commencement of this Law”
A repeal is a removal or reversal of a law. There are two basic types of repeal, a repeal with re-enactment (or replacement) of the repealed law, or a repeal without replacement. A typical situation where an Act is repealed and re – enacted is where the law in the area is being updated but the law being repealed needs to be replaced with a modern version. The Administration of Criminal Justice Law, 2007 is a replacement of the 2003 Law; so to all intents and purposes the 2007 Law is an update of the 2003 version of the same Law.
An amendment of the information can be made to reflect the 2007 Law.
The crucial issue to be resolved is the interpretation of Section 256(1) of the Law which stipulates as follows:-
“256(1) Subject to the provisions of this Section, an information shall be filed by the Attorney – General through the Director of Public Prosecutions or by any officer in his department, or by any other person authorised under this Law to do so, before the High Court charging any person with an offence for which that person shall lawfully be tried”
Learned counsel for the appellant has argued that the phrase ‘or by any other person authorised under this Law to do so’ used in the Section cannot extend to the 1st respondent for two major reasons namely:
(1) That when the issue was raised by the appellant at the lower court the 1st respondent did not tender any document to show that it was duly authorised by the Attorney – General of Lagos State to file the information; and
(2) Going by the settled rule on interpretation – ”
expressio unius est exclusio alterius”, the other persons referred to in the Section are category of persons specifically mentioned in that Section namely, (i) The Attorney General of Lagos State,
(ii) The Director of Public Prosecutions and
(iii) Officers in the office of the Attorney General.
I do not think that the express mention of one thing implies the exclusion of another applies in this instance. What the Section envisages is that apart from the Director of Public Prosecutions and Officer in the Department, any other person who has been given the requisite permission which is the fiat may also file the information before the High Court charging any person with an offence. See: The State v S.O. Ilori SC 42/1982 delivered on 25/2/83; The Federal Republic of Nigeria v. Senator Olawale Julius Adewunmi SC.287/2002 delivered on 27/4/2007. The issue should turn on whether the Director of public prosecution is the authority to issue the fiat to 1st respondent. I answer the question in the affirmative going by the wordings of S.256(1) of the Law. It is not the case of the Director of Public Prosecution, Lagos State exercising any delegated authority for the principle of delegatus non est delegare to apply.
Learned counsel for the appellant has argued that the Economic and Financial Crimes Commission lacked the jurisdiction to prosecute offences of stealing and obtaining under false pretences as provided in the Criminal Code of Lagos State because the said offences are not economic or financial crimes as defined in the EFCC Act. I find myself unable to accept this argument because the alleged stealing and obtaining by false pretences occurred in Intercontinental Bank Plc., a banking and financial institution where the appellant is the Chief Executive Officer.
I agree with the submissions of learned senior counsel of the 1st respondent that Section 211(1) of 1999 Constitution as amended (which overrides sections 77, 256 and 373 of the Administration of Criminal Justice Law of Lagos State 2007) that other persons could institute criminal proceedings. The Section provides as follows:-
“211(1) The Attorney – General of a State shall have power:-
(a) To institute and undertake criminal proceedings against any person before any court of law in Nigeria other than court martial in respect of any Law of the House of Assembly
(b) To take overt and continue any such criminal proceedings that may have been instituted by any 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”
Anybody or authority is competent to initiate criminal proceedings against an offender, once he is granted the fiat to do as we are all our brothers’ keepers. See: Fawehinmi v Akilu (1987) 4 NWLR (Pt.67) 797. This includes an institution such as the EFCC set up to fight corruption in all its facets and economic crimes. In Comptroller of Prisons v Adekanye (2002) 15 NWLR (Pt.790) 318, Belgore J.S.C. (as he then was) in interpreting Section 160 of the 1979 Constitution which is similar to Section 211 of the 1999 Constitution stated at page 329:-
“It is clear from the provision of section 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 the 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.”
3.09 Similarly, in FRN vs OSAHON (2006) 5 NWLR PT. 973 361 at 406 Belgore JSC held thus:
“Police authority can, by virtue of the aforementioned provisions of section 174 (1) of the Constitution prosecute any criminal suit either through its legally qualified officers or through any counsel they may engage for the purpose (See the Comptroller General v Adekanye…) Any other authority or persons can definitely institute criminal prosecution. The power of the Attorney General of the Federation or of the State are not exclusive, any other person or authority can prosecute. However, the Attorney General can take over or continue the prosecution from any such authority or person. He can also discontinue by way of nolle prosequi.” (emphases supplied)
Per Pats- Acholonu JSC at page 417 also restated the law when his Lordship said:
“The implication of the intendment of section 174 (1) aforesaid of the Constitution is that the office of the Attorney General does not have the monopoly of prosecution, though it has the power to take over any case in any court and decide whether to go on with it or not.”
See PHARMA DEKO PLC vs. N.S.I.T. F. M. B. (2010) 5 NWLR PT.1241 431 at 450-451.
See also FRN vs. ADEWUMI (2007) 10 NWLR (PT. 1042) 399 at 427.
3.10 Recently, the Supreme Court knock the bottom out of the Appellant’s argument in the case of AMADI vs. FRN (2008) 18 NWLR (PT. 1119) 259 at page 276 of the report, where Mukhtar JSC held:
“Indeed, the EFCC is a common agency for both the Federal and the 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 1999 Constitution. That being the case, Mr. Hassan, being a staff of the EFCC who signed the charge was competent to do so. Any staff of the EFCC can exercise the power delegated to the EFCC in exhibit A.”
Since the Attorney General of Lagos State does not have the Monopoly of initiating criminal proceedings in the Lagos State High Court under the state law, the argument of the Appellant cannot in any way stand. The point therefore is that from the foregoing, even if Information was filed without the Attorney General of Lagos State signing same, that would be of no moment as the words of the provisions quoted above show that, any person or authority other than the Attorney General of Lagos than the Attorney State can sign the Information herein. The EFCC has rightly initiated criminal proceedings under the state law but the Attorney General of Lagos State only has an overriding power to either take over or discontinue such action. That being so, it is only the Attorney General of Lagos State that can complain about the exercise of the power by the EFCC, but definitely not the Appellant herein.
Furthermore, the Economic and Financial Crimes Commission (EFCC) is expressly conferred with power under sections 6(m), 7 (2) and 13 (2) of the ECONOMIC AND FINANCIAL CRIMES COMMISSION (ESTABLISHMENT) ACT, 2004 to initiate criminal proceedings in any Court in Nigeria for any offence bordering on economic and financial crimes even under the Criminal Code. Section 7 (2) (f) states:
“In addition to the powers conferred on the Commission by this Act, the Commission shall be the co-ordinating agency for the enforcement of the provisions of (f) any other law or regulation relating to economic and financial crimes, including the Criminal Code and Penal Code.”
Section 6 (m) of the ECONOMIC AND FINANCIAL CRIMES COMMISSION (ESTABLISHMENT) ACT 2004 is very wide with the use of the word “all’ in it.
For ease reference section 6(m) reads:
“The Commission shall be responsible for – (m) taking charge of supervising, controlling co-ordinating all the responsibilities, functions and prosecution of all offences connected with or relating to economic and financial crimes.”
The word ‘all’ as used in section 6(m) of the ECONOMIC AND FINANCIAL CRIMES COMMISSION (ESTABLISHMENT) ACT 2004 has been interpreted in the case of BRAITHWAITE v G.D.M (1998) 7 NWLR PT. 557 307 at 327:
“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 con as this is to say that ‘all’ means ‘all’, and it does not mean ‘some’, unless you find a compelling con which forces you to place some limitation on the word.’
Issues 1, 3 and 7 are resolved against the appellant in favour of the 1st respondent.
Since the trial of the appellants is yet to commence, I do not think it is proper to comment on the other issues.
The appeal lacks merit and it is accordingly dismissed.
SAULAWA, J.C.A.: The draft of the lead judgment prepared and just delivered by my learned brother, Akaahs, JCA was served on me this morning. Having read, before now, the briefs of argument of the learned counsel to the respective parties vis-a-vis the record of appeal as a whole, I concur with the reasoning and conclusion reached in the said lead judgment, to the effect that the appeal lacks merits. Instructively, the issue as to whether the 1st Respondent has the statutory powers to file an information (criminal charge) and thereby prosecute offences, most especially under the provisions of the Economic And Financial Crime Commission Act (as amend), is very much germane to the determination of the instant appeal.
I would want to believe that the position of the law on the fundamental issue in question is not at all farfetched. By virtue of the provisions of section 174 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the Attorney General of the Federation has been conferred with the unequivocal powers to institute and undertake criminal proceedings in any court of law in Nigeria and to take over continue or discontinue at any stage before judgment is delivered, any such proceedings, that may have been instituted or undertaken by any person in a court of law. See section 174(1), (2) & (3) of the 1999 constitution (as amended) thus:
(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 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 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 of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
As emphatically, and aptly, held by this court –
Therefore, the decision whether or not to take over continue or discontinue any such criminal proceedings entirely depends on the Attorney General. The power in question in inarguably exclusive to the Attorney General … He does not share it with anybody, no matter how eminently placed.
See PROFESSOR M.B. AJAKAIYE & ANR v. FEDERAL REPUBLIC OF NIGERIA (2010) 11 NWLR (pt.1206) 500 at 526 paragraphs B – D per Saulawa, JCA.
It’s trite that the Economic And Financial Crimes Commission (EFCC) came into being in 2002 vide the EFCC (Establishment) Act, 2002, which was later repealed and replaced by the EFCC (Establishment), etc.) Act CAP. E1 Laws of the Federation of Nigeria, 2004.
The general functions of the EFCC have been set out in section 6 of the EFCC Act, 2004 (as amended). And by virtue of the provisions of section 7 of the said Act, the EFCC shall have the following special functions:
7. Special powers of the Commission (1) The Commission has Power to –
(a) cause investigations to be conducted as to whether any person, corporate body or organization has
committed an offence under this Act or other law relating to economic and financial crimes;
(b) cause investigations to be conducted into the properties of any person if it appears to be Commissions that the person’s lifestyle and extent of the properties are not justified by his source of income.
(2) In addition to the powers conferred on the Commission by this Act, the Commission shall be the co-coordinating agency for the enforcement of the provisions of –
(o) the Money Laundering Act, 2004; 2003 No. 7, 1995 No. 13;
(b) the Advance Fee Fraud and Other Related Offences Act, 1995;
(c) the Failed Banks (Recovery of Debt and Financial Malpractices in Banks) Act, as amended;
(d) the Banks and Other Financial Institutions Act, 1991, as amended;
(e) the Miscellaneous Offences Act; and
(f) any other law or regulation relating to economic and financial crimes, including the Criminal Code and Penal Code.
In the case of AMADI VS. FRN (2008) 18 NWLR (pt. 1119) 259, the Supreme Court was reported to have aptly and rather authoritatively held, inter alia, that –
Indeed, the EFCC is a common agency for both the Federal and the State Economic And Economic Financial Crimes and as such, it qualifies as any other authority to institute criminal proceedings under section (1)(b) of the 1999 Constitution. That being the case, Mr. Hassan being a staff of the EFCC who signed the charge was competent to do so. Any staff of the EFCC can exercise the power delegated to the EFCC in exhibit A. Per Mukhtar, JSC at 276.
The wisdom informing the above authoritative view of the Hon. Justice Mukhtar, JSC was undoubtedly predicated upon the high premium attached to speedy trial and determination of criminal cases. That’s absolutely so, because as the equitable principle goes – Justice delayed, is (invariably) justice denied. See AMADI VS. FRN (supra) at 276 thus:
The position in criminal trial is different. In view of the high premium attached to speedy disposal of criminal cases, the Attorneys General of the States delegate their powers to various State Commissioners of Police who initiate and prosecute criminal matter in the name of such Commissioner of police. Such powers are also delegated to Federal Board of Internal Revenue, Nigeria Customs and lately EFCC by the Attorney General of the Federation. This arrangement is made possible subject to the provisions of section 174 (1) (b) (c) and 211 (1) (b) (c) of the Constitution of the Federal Republic of Nigeria, 1999 which provide that the Attorney General of the Federation or State, as the case may be, shall have power to take over and discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person. That is the correct position of the law.
Thus, in view of the above authoritative decisions of the Supreme Court, any lingering doubt as to whether, or not, the 1st Respondent has the statutory powers to file information (charge) in question against the Appellant, would have by now been dissipated.
Undoubtedly, the fundamental thrust or objective of establishing the EFCC was to wage war against the hydra-headed monster called corruption in the country. Thus, the EFCC has the onerous duty, albeit unenviably, to radically sanitize the corruptly debilitated financial community and the endemically corrupt public (nay civil) service, with a view to ridding the society of corrupt officials and fraudsters. See AJAKAIYE VS. FRN (supra), at 528 paragraphs F – G and 529 paragraphs F, wherein I had the honour of observing, inter alia, thus:
It is a notorious fact, that over the years, Government had been taken to task for the executive indiscipline thereof. Efforts were made by the previous Military administrations to sanitize the polity and still 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 is the general belief that the government itself constitutes a major cause of indiscipline and corruption in the country. I think, it was Niccolo Machiavell!, who stated, rather aptly in my view, that –
“Public affairs are easily managed in a city (nation) where the body of the people is not corrupt”
See Machiavelli: The Prince, Wordsworth, Edition, 1997 at 113.
The above statement of Machiovelli was undoubtedly predicated on the sound reasoning that corruption, in all its ramification, is abhorrent and 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 an all his actions grandeur, courage, gravity and determination. And 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 concurred with the reasoning and conclusion reached in the lead judgment, to the effect that the instant appeal is grossly devoid of merits, I hereby dismiss same, without any further hesitation.
PEMU, J.C.A.: I have had the privilege of reading in draft, the lead Judgment just delivered by my brother KUMAI BAYANG AKAAHS J.C.A, and I concur with the reasoning and conclusions arrived thereat.
I also subscribe to the consequential order made, that the appeal lacks merit and same is accordingly dismissed.
Appearances
Chief F. O. Fagbohungbe SAN, Rickey Tarfa SAN, Deji Sasegbon SAN with Anyalewa Onoja (Miss), Odunola Jegede (Mrs.), Ayodeji Jolaoso, Michael Sunbola and W. Enyinnaya (Mrs)For Appellant
AND
G. Obla with E. C. Okpe, Damilola Babalola (Mrs), A. Arowolo, T. Adebutu (Mrs) and A. E. Adetomiwa for 1st Respondent
A. Adeniran for 2nd RespondentFor Respondent
