FEDERAL REPUBLIC OF NIGERIA v. CHIEF JOSHUA CIBI DARIYE
(2011)LCN/4479(CA)
RATIO
SUBJECT TO: MEANING OF THE PHRASE “SUBJECT TO”
In the case of Oloruntoba-Oju v Abdul-Raheem (2009)13 NWLR (Pt.1157) 83 at 138-139, Adekeye, JSC, had this to say’ of subject to: “Whenever the phrase “subject to” is used in a statute the intention, purpose and legal effect is to make the provisions of the section inferior, dependent on, or limited and restricted in application to the section to which they are made subject to. In other words, the provision of the latter section shall govern, control and prevail over the provision of the section made subject to it. It renders the provision of the subject section subservient, liable, subordinate and inferior to the provision of the other enactment.” See, also, FRN v. Osahon (2006)5 NWLR (Pt.973)261; Balonwu v. Gov., Anambra State (2009)18 NWLR (Pt.1172) 13; Dingyadi v. INEC (No.1) (2010) 18 NWLR (Pt.1224) 1. PER OBANDE F. OGBUINYA. J.C.A.
IMMUNITY: WHETHER THE IMMUNITY PROVIDED UNDER SECTION 308 OF THE CONSTITUTION EXTENDS TO CASES INSTITUTED AGAINST THE SAME PERSONS IN WHICH THE PERSONS ARE NOMINAL PARTIES
In the demonstration of the law that the provision of subsection (1) is subject to that of subsection (2) of section 308 of the Constitution, Onnoghen, JSC, in the case of Global Excellence Comm. Ltd. v. Duke (supra), at 41 stated: “…By the provision of subsection 2 of section 308, it is clear that the immunity conferred on the persons occupying the offices mentioned under section 308 of the 1999 Constitution does not extend to cases or actions instituted against the same persons in which the persons are nominal parties and in their official capacities such as the President, Vice-President, Governor or Deputy Governor.” See, also, Tinubu v. IMB Securities Plc (supra). PER OBANDE F. OGBUINYA. J.C.A.
NOMINAL PARTY: MEANING OF NOMINAL PARTY
I hold the view that he is not a nominal party which, in law, is “a party in name only and not in reality … or existing in name only,” as sanctified by Ogbuagu, JSC, in the case of Agbareh v. Mimra (2008)2 NWLR (Pt.1071)378 at 426. PER OBANDE F. OGBUINYA. J.C.A.
PRINCIPLE OF INTERPRETATION: HOW DOCUMENTS SHOULD BE INTERPRETED
…I employ a common and cardinal principle of interpretation that a document must be read holistically, not in fragments, so as to garner the intention of the author. The apex court blessed this hallowed canon of documentary construction in the case of Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt.1188) 429 at 457, when Muhammad, JSC, opined: “… Although exhibit P45 is not an Act of Parliament or a piece of any legislation, it is a document written with a particular purpose. In order to read the mind of the maker/author of that document it is necessary to subject such document to an appropriate rule of interpretation that a passage is first interpreted by reference to what follow’s it. This makes it mandatory for one to read the whole passage or document and every part of it should be taken into account.” See, also, Agbareh v. Mimra (supra). PER OBANDE F. OGBUINYA. J.C.A.
In The Court of Appeal of Nigeria
On Friday, the 15th day of April, 2011
OBANDE F. OGBUINYA. J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision, ruling, of the Federal High Court, Kaduna, presided over by Hon. Justice A. M. Liman, delivered on 16th December, 2004 – striking out the name of the respondent from the charge against him and counts 1 and 2 of that charge.
Flowing from the processes filed, the facts leading to this appeal are straightforward. On 06/12/2004, the appellant, through a famous anti-graft agency, the Economic and Financial Crimes Commission, commenced criminal prosecution of the FHC/KD/144c/04. In counts 1 and 4 of it, which related to the respondent, he was charged with fraudulent presentation of a Central Bank Cheque for the sum of N1,161,162,900.00 billion in favour of Plateau State to the sixth respondent and dishonest misappropriation of the said sum of money contrary to section 3(2) of the Miscellaneous Offences Decree as amended by Tribunals Certain Consequential Amendments etc) Decree No.62 of 1999 and section 309 of the Penal Code respectively.
Before the court below, on 07/12/2004, the respondent, unlike others, did not take his plea to that charge. On that same day, 07/12/2004, the court took judicial notice of the fact that the respondent was the then Governor of Plateau State. It then, on the behest of the learned counsel for the appellants, issued criminal summons on him to appear and address him on his immunity under section 308 of the 1999 Constitution.
Subsequently, on 13/12/2004, the respondent, through his counsel, filed a preliminary objection wherein he prayed the court below to quash the charge against him and strike out his name from it. His ground was mainly that he was immune from prosecution on the basis of section 308 of the Constitution. The preliminary objection was argued and replied to on that same day – 13/12/2004.
On 16/12/2004, the learned trial Judge delivered a considered ruling in which it upheld the objection. Consequently, he struck out the name of the respondent and counts 1 and 2 relating to him from that charge. He, also, set aside the criminal summons earlier on issued against him (the respondent).
The appellant was aggrieved by that decision and it appealed against same to this court. It filed a two-ground notice of appeal on 28/12/2004. It later, via a motion on notice, filed an amended notice of appeal on 30/06/2005.
When the appeal came up for hearing on 19/01/2011, the learned counsel for the appellant, C. Okoroma Esq., applied to withdraw the charge against the second to the eight respondents. There was no objection to that application by S. Ibiwoye, Esq., learned counsel for the respondent. Consequently, the court struck out the names of the second to the eight respondents from the appeal. Thereafter, learned counsel for the appellant adopted the appellant’s brief of argument as representing his submissions in favour of the appeal. In the same vein, the learned counsel for the respondent, S. Ibiwoye, Esq., adopted the respondent’s brief of argument, filed on 25/09/2009, via a motion on notice, and deemed filed on 26/05/2010, as representing his submissions against the appeal.
In the appellant’s brief of argument, the appellant crafted a solitary issue for determination to wit:
“What is the purpose or purport of section 308(2) of the 1999 Constitution of the Federal Republic of Nigeria in relation to a person to whom section 308 of the 1999 Constitution when such a person is charged with a criminal offence? (This issue is covered by the two grounds of appeal).”
Contrariwise, in the respondent’s brief of argument, a different lone issue for determination was framed as follows:
“Whether the trial court rightly declined jurisdiction to entertain the charges against the 1st Respondent who as at the time he was arraigned was a sitting Governor of a State in Nigeria; having regard to the provisions of section 308 of the Constitution of the Federal Republic of Nigeria, 1999.”
I have situated the two issues formulated by the two sides of the duel in this appeal. They exhibit symmetrical feature of oneness in terms of substance. However, given the facts and arguments herein. I hold the view that the issue couched by the respondent is more apposite for the determination of this appeal.
On that singular issue, learned counsel for the appellant outlined the provision of section 308 of the Constitution and highlighted the substance of the offences with which the respondent was charged with in counts 1 and 4 of the charge, No. FHC/KD/144C/2004. He drew the court’s attention to the ruling of the court below – that the respondent was charged as a principal party, not as a nominal party, and that the charge could not stand having regard to section 308 of the Constitution. Learned counsel then, forcefully, submitted that the section did not make a distinction between a nominal party and a principal party. He referred to the Blacks Law Dictionary, 7th edition, wherein the word nominal was defined as “existing in name only”. He conceded that it was possible to have a nominal party in civil proceedings, but not possible in criminal proceeding the purpose of which was to administer punishment on persons convicted of a criminal offence. He added that except in public welfare offences, like public nuisance, no vicarious liability in criminal proceedings because of the absence of the actus reus and mens rea residing in the same person. He placed reliance on the English case of R. v. Huggins (1730)2 Ld. Rym 1574; 92 E.R. 518.
Learned counsel took the view that the words “nominal party” in section 308(2) of the Constitution, as it related to criminal proceedings, was ambiguous. He then urged the court not to adopt the literal rule of interpretation as it would lead to absurdity. He, therefore, prayed the court to adopt a narrow interpretation that could restrict the doctrine of immunity, under section 308 of the Constitution, to civil proceedings based on the provision of subsection (2) thereof. He cited the cases of PDP v. INEC (1999) 11 NWLR (Pt.626) 200; Grey v. Pearson (1857) 6 H.L.C. 61 at 106; Professor cross, Precedent in English Law (1961) p.182 to support his proposition of the golden rule of interpretation.
He maintained that giving literal meaning to section 308(2) of the Constitution, as it related to criminal proceedings, would be contrary to the purpose of section 308(1)(a), (b) and (c) and 308(3) of the constitution and the entire spirit of the said Constitution. Learned counsel posited that the purpose of section 308 of the Constitution was to protect a person to whom it applied from being inhibited from the performance of his duties and not a licence to engage in criminal acts. He pegged that postulation on section 15(5) under the Fundamental Objectives and Directive Principles of State policy as enshrined in Chapter II of the Constitution, the oath of office subscribed to by the person to whom section 308 applied to and Section 182 (d) and (e) of the constitution dealing with disqualification of persons wishing to be Governors on offences bordering on fraud or dishonesty. He noted that the Supreme Court had adopted the above approach in a number of cases and excluded election petitions from the protection of the provision of section 308 of the Constitution. He cited the cases of Obi v. Mbakwe & Ors (1984)15 N.S.C.C. 127; AD v Fayose (No.1) (2004)26 WRN 34; Turaki v. Dalhatu (2003)38 WRN 54.
Learned counsel concluded that adopting the golden rule of interpretation could accord with the entire spirit of the Constitution and interest of justice as in election petition cases. He, finally, based on this above submissions, urged the court to allow the appeal.
Arguing per contra, learned counsel for the respondent contended that the provision of section 308 of the Constitution, includings nominal party, was patently clear and unambiguous on immunity of an incumbent president or governor, and ordinary, grammatical interpretation should be given to it. He insited that there was no ambiguity in the provision to necessitate invoking the golden rule of interpretation. He placed reliance on the cases of Tinubu v I.M.B Securities Plc (2001) 16 NWLR (Pt.740) 670; Bamaiyi v. A-G., Fed. (2001) 12 NWLR (Pt.727)-168; Fawehinmi v. IGP (2002) 7 NWLR (Pt.767) 606.
Learned counsel further contended that the respondent was charged as a principal party, not as a nominal party; and that subsection (2) of section 308 of the Constitution did not remove him from the immunity, under subsection (1) of section 308. He noted that, it was the person of Chief Joshua Dariye that was charged and not in his official capacity as the Governor of Plateau State. He persisted that whether or not there was no nominal party in criminal proceedings, the respondent could not be charged with any criminal offence or convicted for any under section 308 of the Constitution. He added that the essence of the provision of that section (308) was to protect those it applied to from being inhibited from the performance of their official duties so that good governance’ would not be defeated. He concluded that the provisions of the Constitution were supreme and any law inconsistent with them would to the extent of that inconsistency be void and relied on section 1 (3) of the Constitution. On the strength of those arguments, learned counsel urged the court to dismiss the appeal.
A balanced resolution of the mono issue in this appeal turns on the interpretation of the provision of section 308 of the Constitution. To this end, it is imperative to cull that section out from the Constitution, verbatim ad literatim, thus:
“308-(1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section-
(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;
(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and
(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued:
Provided that in ascertaining whether any, period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.
(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to criminal proceedings in which such a person is only a nominal party.
(3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.”
This provision, which traces its genealogy or roots to section 161( 1) (c) of the 1963 Constitution through section 267 of the 1979 Constitution, had fallen for interpretation in galore of cases. In the course of those frequent interpretations, the Supreme Court had held, in a plethora of authorities, that a beneficiary of the provision, particularly subsection (1) thereof, cannot be sued or prosecuted in any court of law during the period he holds the reins of office. The locus classicus on that, under the 1999 Constitution, is the case of Tinubu v I.M.B Securities Plc (supra). See, also, Farvehinmi v IGP (supra); Amaechi v INEC (2008)5 NWLR (Pt.1080)227; Global Excellence Comm. Ltd. v Duke (2007)16 NWLR (Pt.1059); Hassan v Aliyu (2010)17 NWLR (Pt.1223)547. I must add pronto that there is no corresponding disability on the beneficiary not to sue a citizen during the tenure of his office, see Global Excellence Comm. Ltd. v Duke (supra).
The raison d’etre for the immunity clause entrenched in section 308 of the Constitution was graphically captured by Oguntade, JSC, in the case of Amaechi v INEC (supra) at page 310, in these illuminating words:
“Section 308 above is not meant to deny a citizen of this country his right of access to the court. It is a provision put in place to enable a Governor, while in office, to conduct the affairs of governance free from hindrance, embarrassment and the difficulty which may arise if he is being constantly pursued and harassed with court process of a civil or criminal nature while in office. It is a provision designed to protect the dignity of the office.”
Thus, the provision is aimed to forestall an undignified situation whereby, an occupant of the office outlined in subsection (3) of section 308 is hounded, inundated or awash with court processes of whatever nature or form in order not to distract him from the expected good -governance.
Now, the hub of this appeal is whether the respondent can take a benefit of non-prosecution under the sanctuary of subsection (1) of section 308 of the Constitution. To start with, parties herein are consensus ad idem that the respondent was, at the time he was hauled up before the court below, a person subsection (1) applied to by virtue of subsection (3) and as the then Governor of Plateau State. It is settled, beyond any equivocation, that subsection (1) is subservient or plays a second fiddle to-subsection (2) of section 308 owing to the use of the term “subject to” in the former subsection. The provision of subsection (1) loses steam or breaks down, in terms of application, in the face of the dominant provision of subsection (2) of section 308. In the case of Oloruntoba-Oju v Abdul-Raheem (2009)13 NWLR (Pt.1157) 83 at 138-139, Adekeye, JSC, had this to say’ of subject to:
“Whenever the phrase “subject to” is used in a statute the intention, purpose and legal effect is to make the provisions of the section inferior, dependent on, or limited and restricted in application to the section to which they are made subject to. In other words, the provision of the latter section shall govern, control and prevail over the provision of the section made subject to it. It renders the provision of the subject section subservient, liable, subordinate and inferior to the provision of the other enactment.”
See, also, FRN v. Osahon (2006)5 NWLR (Pt.973)261; Balonwu v. Gov., Anambra State (2009)18 NWLR (Pt.1172) 13; Dingyadi v. INEC (No.1) (2010) 18 NWLR (Pt.1224) 1.
In the demonstration of the law that the provision of subsection (1) is subject to that of subsection (2) of section 308 of the Constitution, Onnoghen, JSC, in the case of Global Excellence Comm. Ltd. v. Duke (supra), at 41 stated:
“…By the provision of subsection 2 of section 308, it is clear that the immunity conferred on the persons occupying the offices mentioned under section 308 of the 1999 Constitution does not extend to cases or actions instituted against the same persons in which the persons are nominal parties and in their official capacities such as the President, Vice-President, Governor or Deputy Governor.”
See, also, Tinubu v. IMB Securities Plc (supra).
The vexed question, begging for an answer’ is: did the first respondent come under the limitation or restriction clause under subsection(2) to deny, him benefit from the immunity clause in subsection (1) of section 308 of the constitution? In dealing with this stubborn query, a convenient starting point is to pluck out counts 1 and 4, affecting the respondent, from the said charge, charge No. FHC/144c/04 on pages 12 and 13 of the record. Counts I and 4 of that charge read:
“CHARGE
COURT 1
That you, Chief Joshua Cibi Dariye being the Governor of Plateau State of Nigeria, on or about June 2001 in Abuja and Jos within the jurisdiction of the Federal High Court fraudulently presented a Central Bank of Nigeria Cheque for the sum of N1, 161 ,162,900.00 (one billion, one hundred and sixty one million, one hundred and two thousand and nine hundred and sixty thousand and nine hundred (sic) naira only) in favour of Plateau State to All States Trust Bank plc Wuse Abuja knowing it to be unlawfully procured and thereby committed an offence contrary to section 3(2)(a) of the Miscellaneous -: Offences Decree and punishable under section 3(3) of the same decree as Amended by, Tribunals (Certain Consequential Amendments etc) Decree No. 62 of 1999. That you, Joshua Cibi Dariye being the Governor of Plateau State of Nigeria, on or about June 2001 in Abuja within the jurisdiction of the Federal High Court dishonestly misappropriated the sum of N1,161,162,900.00 (one billion, one hundred and sixty one million, one hundred and two thousand and nine hundred (sic) naira only,) due to Plateau State by directing the All States Trust Bank plc Wuse Abuja to disburse in the following manner namely;
Pinnacle Communication Ltd. :N250,000,000.00
Plateau State Government : N550,000,000.00
Union Home : N80,000,000.00
PDP South West : N100,000,000.00
Ebenezer Retnan Ventures owned
by Chief Joshua Dariye N160,000,000.00
Ebenezar Retnan Ventures owned
by Chief Joshua Dariye N16,000,000.00
COT 4,300,000.00
and thereby committed an offence punishable under section 309 of the Penal Code.”
I have subjected these counts, which are very susceptible to easy comprehension, to microscopic examination. My understanding of them is that the respondent is charged eo nomine, id est, in that his name, Chief Joshua Cibi Dariye. Indeed, he is the only party in the two counts and none other. The corollary of that is not a second guess. He will be tried, and if convicted, he will personally serve the punishment/imprisonment attendant upon that charge. To this end, I hold the view that he is not a nominal party which, in law, is “a party in name only and not in reality … or existing in name only,” as sanctified by Ogbuagu, JSC, in the case of Agbareh v. Mimra (2008)2 NWLR (Pt.1071)378 at 426.
In sticking to this view, I employ a common and cardinal principle of interpretation that a document must be read holistically, not in fragments, so as to garner the intention of the author. The apex court blessed this hallowed canon of documentary construction in the case of Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt.1188) 429 at 457, when Muhammad, JSC, opined:
“… Although exhibit P45 is not an Act of Parliament or a piece of any legislation, it is a document written with a particular purpose. In order to read the mind of the maker/author of that document it is necessary to subject such document to an appropriate rule of interpretation that a passage is first interpreted by reference to what follow’s it. This makes it mandatory for one to read the whole passage or document and every part of it should be taken into account.” See, also, Agbareh v. Mimra (supra).
It was part of the argument of the learned counsel for the appellant that nominal party was unknown to criminal proceedings which, generally, did not accommodate vicarious liability. I ”buy this argument in toto – because it is in consonance with the law – that there is no transferred criminal liability or agency in the Nigerian criminal justice system, see Dina v. Daniel (2010) 11 NWLR (Pt.1204) 137.
Nevertheless, I must hasten to observe that this ageless rule of law, seriously, counts against the appellant in this appeal. The reason is not far-fetched. If a nominal party is a stranger or alien to criminal proceedings, it becomes axiomatic that the respondent is a principal party in the two counts of that charge. Thus, the appellant by its own showing has conceded that the respondent is not a nominal party in the counts so as to be stripped of the benefits under the immunity clause in subsection (1) of section 308. By that argument and admission, the appellant has played into the hand of the respondent who holds an ace on this critical point.
The appellant, via learned counsel, invited the court to construe the words “nominal party” as ambiguous and adopt the golden rule of interpretation of statutes. I will, without much ado, decline that invitation on justifiable legal grounds. To begin with, there is no modicum of ambiguity in the words “nominal party” which had been construed to mean “a party in name only and not in reality … or existing in name only”, see Agbareh v. Mimra (supra), per Ogbuagu, JSC. Besides that, the provision of section 308 and subsection (2) thereof had been held to be plain and unambiguous by the Supreme Court, see Tinubu v. IMB Securities Plc (supra); Fawehinmi v. IGP (supra). That-means, the term, nominal party, has not acquired any technical meaning to justify, a departure from its ordinary meanings. It is trite that once the provisions of the Constitution or statute are clear and unambiguous, a court should deploy the literal rule of interpolation and give them their ordinary grammatical meanings without any interpolation or embellishment. The reason for adopting or employing the literal canon of construction is simple. The function of the court, or its alter ego, the Judges, is jus dicere, not jus dare, that is, to declare the law not to make one. This timeless literal rule, which triumphed over the golden rule after months of ancient struggle for superiority, does not allow a court to stray away or sniff around for meanings of provisions beyond the legislation itself. The rule has been recognized in a legion of cases, see A.-G., Fed v. Abubakar (supra); Elabanjo v. Dawodu (2006) 15 NWLR (Pt.1001)76; Nigerian Army v. Aminu-Kano (supra); Action Congress v. INEC (2007) 12 NWLR (pt.1048) 222; Nwankwo v. Yar’Adua (2010) 12 NWLR (pt.1209) 518; Balonwu v. Gov., Anambra State (supra); Oyegun v Nzeribe (2010) 7 NWLR (Pt.1194) 577.
In the case of Rhein Mass v. Rivway Lines (1998)4 SCNJ 18 at 29, Ogundare, JSC, said of the dominant literal rule of interpretation:
“Moreover, it is a cardinal rule of interpretation which has been accepted in numerous cases in this country that if the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense as the words themselves in such case best declare the intention of the legislature.”
In the case of Global Excellence Comm. Ltd. v Duke (supra), at pages 47-48, Tobi, JSC, observed:
“In the interpretation of the Constitution, the court is bound by the provisions of the Constitution. Where the provisions of the Constitution are clear and unambiguous, the court must give a literal interpretation to them without fishing for a likely or possible meaning. This is because by the clear and unambiguous provisions, the makers of the Constitution do not intend any other likely or possible meaning.”
That is not all. I must bear in mind that this appeal revolves around an interpretation of the provisions of the Constitution. In that regard, a court is mandated to take into account some variable factors. Such paramount considerations have been duly and elaborately chronicled in a galaxy of cases. In the case of Nafiu Rabiu v. The State (1986) NSCC 291 at 300-301/ (1989)3-11 SC 130 at 148-149, Sir Udoma, JSC stated:
“My Lords, it is my view that the approach of this court to the construction of the Constitution should be, and it has been one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat. I do not conceive it to be the duty of this court to construe any of the provision of the Constitution to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the records and senses of such provisions will serve to enforce and Protect such ends.”
For simplicity, reasons, Obaseki, JSC, in the case of A.-G. of Bendel State v. A.-G. of Federation (1981) 10 SC 1/ (1982) 3 NCLR 1 catalogued the principles of interpretation of the Constitution into twelve twelve items. Paragraphs 4,7,10 and 12 in that succinct categorisation are of note and they are:
“In the interpretation and construction of our 1979 Constitution, I must bear the following principles of interpretation in mind:
(4) The language of the Constitution where clear and unambiguous must be given its plain evident meaning.
(7) A Constitutional provision should not be construed so as to defeat its evident purpose.
(10) Words are the common signs that mankind make use of to declare their intention one to another and when the words of a man express his meaning plainly and definitely and perfectly, there is no occasion to have recourse to any other means of interpretation.
(12) Words of the Constitution are therefore not to be read with stultifying narrowness … Courts, it must be emphasized, cannot amend the Constitution. They cannot change the words. They must accept the words…”
See, also, FRN v. OSAHON (2006)5 NWLR (Pt.973)361; A.T. Ltd. v. A.D.H Ltd. (2007) 15 NWLR (Pt.1056) 118; Nyame v FRN (2010)7 NWLR (Pt.1193) 344; Balonwu v. Gov., Anambra State (supra); Action Congress v. INEC (supra).
To top it all, the words under contention’ nominal party, as already noted, have been judicially defined, see Agbareh v. Mimra (supra). The law, remains that once words and phrases have been judicially defined, they take those meanings assigned to them, by the courts, without any room for any further connotations. Put starkly, the courts are bound to follow those defined meanings in subsequent proceedings. Indeed, in such a situation, the defined words relinquishes or sheds its any other meaning which melts into the former. In the case of Dapianlong v. Dariye (2007) 8 NWLR (Pt.1036)332 at 441, Aderemi, JSC, observed:
“… the arguments of the 1st respondent … have persuaded me to examine other relevant provisions of the Constitution such as sections 90, 91 and 102 …. Before I do that let me quickly remind myself that where words or expressions in the provisions have been legally or judicially defined or determined, their ordinary meaning will definitely give way to their legally or judicially defined meanings; that was the decision in Acme – Builders Ltd. v K.S.W.B. (1992) 2 SC 1; (1992) 2 NWLR (Pt.590)288. This is in conformity with the principle of Judicial Precedent or Stare Decisis as it is called.”
I believe I have offered sufficient reasons why I will not sidetrack the ‘literal rule of interpretation for the golden rule of interpretation in the construction of the words “nominal party” in subsection (2) of section 308 of the Constitution. To do that, as pressed by the learned counsel for the appellant, will be an affront to the established law. In the end, I find no absurdity germinating from the literal interpretation of those words to compel me to settle on the golden rule for their interpretation. The law, as dissected above, makes mincemeat of learned counsel’s supplication.
The finding of the learned trial Judge, on page 108 of the record, was that:
“It is my view however, having regard to the facts and circumstances of this case the charge before me, it is plain that the 1st accused (the respondent) does not appear in all the counts of the charge to be a nominal party…. He is a principal offender. … In charge No. 144c the 1st accused is charged alone in count 1 and 4 of the charge. The 1st accused in all the counts is charged as a principal accused and not as a nominal accused and accordingly, the charges having regard to section 308 of the Constitution cannot stand.”
Going by the law, as x-rayed above, the finding of the court below is quite unassailable. The law does not give me the nod to tinker with such an unimpeachable conclusion.
The learned counsel for the appellant, perhaps, in apparent bid to leave no stone unturned, solicited this court to exclude the immunity clause in section 308 of the Constitution from criminal proceedings as done in election petition proceedings. I agree, without reservations, with the contention of the learned for the appellant, for that is the law, that the immunity clause does not find succour in election petition matters, see Obi v. Mbadiwe (supra); AD v. Favose (supra); Turaki v Dalhatu (supra); Amaechi v. INEC (supra); Hassan v Aliyu (supra).
Be that as it may, I will, without mincing words, turn down the request of the appellant. In this wise, I draw on the reason offered by Onnoehen JSC. in the case of Hassan v. Aliyu (supra) at 598. He stated:
“However, the provisions of section 308 of the 1999 Constitution do not protect a president or governor from legal proceedings in a matter of his election per se in a matter connected therewith even when he has been, as a contestant, declared duly elected and sworn in as such. The reason for that is that election petitions and election related proceedings are really special proceedings distinct from civil or criminal proceedings which fall within the province of the said section 308 of the 1999 Constitution.”
Taking a cue from Hassan’s case supra, my major reason for refusing that application, by the appellant, is that election petitions are sui generis. They stand aloof on their own. They are species of proceedings that are distinct and independent of civil or criminal proceedings, see Orubu v NEC (1988) 5 NWLR (Pt.94) 323; Amaechi v. INEC (supra); Baido v. INEC (2008) 12 NWLR (Pt.1100)379; Hassan v Aliyu (supra). In the light of the above analyses, I am at home with the law in refusing the supplication of the appellant in this regard. Having regard to the totality of the foregoing analyses, I am of the, humble, view that the respondent was not a nominal party in counts 1 and 4 of the charge in the court below. The implication of that is not a moot point. It is that he takes refuge under the immunity clause donated to him then by subsection (1) of section 308 of the Constitution. Put simply, the respondent was then, totally, immune from the charge lodged against him in the court below and could not, under any guise, be tried and or convicted on it.
Before handing down the verdict in this appeal, I must observe that the order made by the court below, exculpating the respondent is keeping with the tenets and spirit of the law, see Colonel Olu Rotimi & Ors v. Macgregor (1974) 11 SC 133.
This is more so when all courts have the bounden duty to enforce the operation of the inviolable provision of section 308(1) (a) of the Constitution. In the case of Tinubu v. I.M.B Securities Plc (supra), at pages 696-697, Iguh, JSC stated:
“It is pertinent to point out that the said provisions of section 308(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 in issue in the present case is clearly in pari materia with those of section 161 (1)(c) of the 1963 Constitution. Accordingly, I entertain no doubt:-
(IV) That the Court of Appeal, indeed all courts are bound in appropriate cases to give effect to the said immunity prescribed under section 308(1) (a) of the 1999 Constitution during the period office of the holder of any of the posts prescribed under section 308(3) of the 1999 Constitution and it would not matter whether or not such immunity is pleaded or relied on by the parties to any proceedings.”
It follows that non-enforcement or non-observance of the sacrosanct prescription of section 308(1)(a) of the Constitution by the court below and this court will definitely fly in the face of the law. I will not indulge in that judicial sacrilege. In a word, I resolve this single issue against the appellant.
On the whole, for the reasons I have advanced above, I find the considered view, that this appeal is devoid of any iota of merit. It is a non-starter and ill-fated. In line with the law, I will visit dismissal on it. Accordingly, I order that this appeal, filed by the appellant on 28/12/2004, be and Parties shall bear their respective costs of prosecuting and defending the doomed appeal.
MARY U. PETER-ODILI, J.C.A.: I had the opportunity of reading the draft judgment of my learned brother Obande F. Ogbuniya JCA which decisions and reasoning I agree with a position which tallies with the position of the Respondent, Chief Joshua Dariye. The matter, of the immunity of the Respondent at the time the Appellant commenced the criminal prosecution against the respondent on the two charges was unassailable. This stems from the protection made available to the Respondent who was the current Governor of Plateau State at the time of the attempted assault on his right to the immunity as guaranteed by the 1999 Constitution precisely Section 308. This assault was clearly an affront or confrontation on the supreme law of the land – the constitution. Neither the Appellant nor anyone institution inclusive has the right to so challenge and here is a surfeit of judicial authorities in support of this view and I will hereunder refer to them as follow:-
Tinubu v. I.M.B. Security Plc (200L) 16 NWLR (pt.740) 570; Bamaiyi v. A. G. Federation (2001) 12 NWLR (pt 727) 468; Global Excellence Communications Ltd V Duke (2007) 16 NWLR (pt 1059) 41; Hassan v. Aliyu (2010) 17 NWLR (Pt 7223) 547.
As my brother found and stated in no uncertain terms the exotic interpretation of section 308 of the 1999 Constitution as postulated by the Appellant who taught to remove the immunity of a serving governor within the same mould as in an election petition cannot just be accepted as nothing justifies that line of thinking nor can it be found within the provisions of a clearly and unambiguously concluded constitutional provision. I place reliance on Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (pt.1157) 83 at 138-139; Federal Republic of Nigeria v. Osahon (2006) 5 NWLR (pt.973) 261; Dingyadi v. INEC (No.1) (2010) 18 NWLR (pt.1224) 1.
In view of the foregoing and the more elaborate reasonings of Obande F. Ogbuniya JCA, I too dismiss this unmeritorious appeal and affirm the judgment of the court below.
JOSEPH TINE TUR J.C.A.: I have listened to the judgment delivered by OBANDE F. OGBUINYA J.C.A. and I agree with his summary of the facts, the reasoning and conclusions arrived at. I shall add the following comments of mine.
The Father of the Constitution of the Federation Republic of Nigeria, 1999 provided under Section 176(1) and (2) thereof that a Governor shall be the Chief Executive of each State. They envisaged that perhaps, before being voted into office or thereafter the person might have done or committed acts that constituted civil liabilities or criminal offences. Civil or criminal proceedings might have been instituted before or during the person’s tenure in office. Whatever may be the situation they provided in Section 308 of the Constitution as follows:
“308(1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section:-
(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;
(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and
(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued:
Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period in office.
(2) The provisions of subsection (1) of this Sections shall applies to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.
(3) This section applies to a person holding the office of President or Vice President, Governor or Deputy Governor, and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.”
There is no dispute that Chief Joshua Cibi Dariye was the Executive Governor of Plateau State of Nigeria as at December, 1999 when he was arraigned with seven other accused persons by the agents of the Federal of Nigeria hence, he comes within the phrase “…a person to whom this section applies during his period of office” pursuant to Section 308(1) (a) (b) and (c) of the 1999 Federal Constitution. In that wise no criminal or civil proceedings were to be applied or instituted against him during his period of officer; neither was he subject to arrest or imprisonment which is the purpose of initiating this criminal proceedings against him by agents of the appellant.
The appellant lacked the jurisdiction to have sought by criminal process that the Respondent should be compelled to appear in Court to answer to the charges. The Court also lacked the jurisdiction to have issued the processes even if the appellant’s agents had applied for it. Thus the process of initiating the criminal proceedings and the issuance of the process by the learned trial judge, namely, signing the criminal processes (See Mobil Oil Nig. Ltd. v. Alhaji Hameed Ijaiya (1964) L.L.R. 60 at 61) were all acts done without jurisdictions by the agents of the appellant and the learned trial judge. By the provisions of Section 308 (1) (a) (b) and (c) of the 1999 Federal Constitution the criminal proceedings should not have been applied for instituted nor the processes issued by the learned trial judge.
Where a court has no jurisdiction it cannot make binding orders. See Nyarko vs. Akowuah 14 WACA 426 and Ede vs. Commissioner for Works and Housing (1980) 1 PLR 318 at 326.
Jurisdiction must be vested in a Court of law before the rights of the parties can be determined. See Kalu vs Odili (1992) 6 SCNJ (Pt.1) 76.
His Lordship should have suo motu raised the issue of the immunity of the Governor which is a matter relating to the competence of the appellant’s agents to initiate the criminal proceedings and refused to issued the process. The criminal proceedings involved the jurisdiction of the Court to entertain the proceedings against the Respondent. See Katto v. CBN (1991) 12 SCNJ 1 at 19; Oloriode vs Oyebi (1984) 5 SC I at 32; Ezomo vs. Oyakhere (1985) 2 SC 260 at 282.
There are cases where the court can take objection without waiting for counsel or the accused to raise it at the trial. See Bayero vs. Mainasara & Sons Nig. Ltd. (2007) All FWLR (Pt.359) 1285 at 1314 paragraph “F – G”; Idris v. Archibong (2001) 9 NWLR (Pt.718) 447 at 457 – 459; Nwakama v. Iko Local Government Council, Cross Rivers State & 2 Ors (1996) 3 NWLR (Pt.439) 732 at 739.
Judges are presumed to know the law. See Oshianie vs. Okundayo (1980) 2 FCA 51 at 55; Bello v. Police (1957) 2 FSC 48.
Learned counsel appearing for the Federal Republic of Nigeria however sought refuge under the provisions of Section 308(2) of the Constitution as authority to initiate criminal proceedings against the Respondent on the ground of his being a only nominal party to circumvent the provisions of Section 308(1) (a)-(c) and (3) of the Constitution.
The State arraigned the Respondent in his name and not in his official capacity as the Executive Governor of Plateau State. The appellant’s agents were thereby attempting to remove the immunity conferred upon the Respondent by the Constitution. To remove the immunity conferred on the Respondent will require a constitutional amendment of section 308(10 (a)-(c) and (3) of the constitution.
Section 4(1) to (4) of the 1999 Federal Constitution reads as follows:-
“4- (1) The legislative powers of the Federals Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in part 1 of the second schedule to this constitution.
(3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States.
(4) In addition and without prejudice to the powers conferred by subsection (2) of this Section, the National Assembly shall have power to make laws with respect to the following matters, that is to say:-
(a) any matter in the Concurrent Legislative List set out in the first column of part II of the second schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
(5) xxxxxxxxxxxxxxxxxxxxxxxxxxxxx
The National Assembly thought it wise to provide immunity to the President. Vice President, Governor and the Deputy Governor during their period in office. They thought this will provide for the peace, order and good government of the Federation and the thirty six States thereof. That immunity has not been removed or suspended by the National Assembly hence the Respondent was immuned from any civil or criminal proceedings during the period of office.
Experience has however shown that immunity clause in the Constitution has been abused by many Governors and Deputy Governors and Nigerians have been clamouring for its removal from the constitution. That has been the yearnings of those who want to rid Nigeria of corruption by persons thrust with the responsibility of executing governmental affairs of the Federation or the States. Nevertheless, without a constitutional amendment, removing, altering or amending the immunity provision, the Respondent is a person to whom Section 308(1)(a)-(c) and (3) of the Constitution applies during his period of office.
The fact that the Respondent was sued in his name does not debar him from enjoying the protection afforded him under the immunity provision in the Constitution. What is important is that the Respondent is “a person to whom this section applies during his period of office” as contemplated under Section 308(1) (a)-(c) and (3) of the Constitution.
The phrase “a person” is not defined in Section 308(1) (a)-(c) and (3) of the 1999 Federal Constitution. But in John Salmond, Jurisprudence, 10th edition by Glanville L. Williams, page 318 appears the following statement of the law:
“So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person; even though he be a man. Persons are the substance of which rights and duties are the attributes. It is only in this respect that persons posses juridical significance, and this is the exclusive point of view from which personality receives legal recognition.”
Section 18(1) of the Interpretation Act, Cap 192, Laws of the Federation of Nigeria 1990 says the word “person’ includes corporate or unincorporated.
Therefore, whether criminal proceedings were instituted or applied for in the name of Chief Joshua Chibi Dariye simpliciter or as Chief Joshua Chibi Dariye, the Executive Governor of Plateau State, he still comes within the phrase “..a person to whom this section applies during his period of office” under Section 308(1) (a) (b) (c) (2) and (3) of the Constitution. It does not therefore matter the capacity in which Chief Joshua Chibi Dariye the Executive Governor of Plateau State was been proceeded against in the criminal proceedings leading to this appeal.
The provisions of 308(2) of the Constitution supra is authority that in civil causes and matters the Executive Governor of any State can be sued in his official capacity or as a nominal party.
Suing in a nominal or official capacity is very common in land causes and matters. For instance, where a party seeks declaratory releifs, example, that a statutory right of occupancy issued by the Executive Governor be revoked in favour of another party, the Governor often has no interest in the outcome of the litigation yet, he may be required to comply with the orders of the court if ever made or granted in favour of any of the parties. In that wise, in order to save time. Cost and multiplicity of actions, the Executive Governor, or at times the Attorney-General of the State is sued in their official capacities or as nominal parties. In the light of the above situation happening I adopt the definition of the phrase “nominal party” in Blacks Law Dictionary, 8th edition, page 1154 which is:
“A party to an action who has no control over it and no financial interest in its outcome; esp., a party who has some immaterial interest in its outcome; esp., a party who has some immaterial interest in the subject matter of a lawsuit and who will not be affected by any judgment, but who is nevertheless joined in the lawsuit to avoid procedural defects. An example is the disinterested stakeholder in a garnishment action.”
The appellant sought to prosecute the Respondent for criminal offences as shown in the charges framed. Can it be seriously argued by the appellant’s learned counsel that criminal proceedings were instituted against Chief Joshua Chibi Dariye as “only a nominal party” within the contemplation of Section 308(2) of the Constitution of the Federal Republic of Nigeria, 1999? I do not think so.
There are two separate charge sheets, namely, FHC/KD/143C/2004. The complaints against the Respondent are set out in Count 1 and 2 as follows:
“COUNT 1
That you, Chief Joshua Chibi Dariye, Governor of Plateau State of Nigeria, Awe Odessa Being a former Deputy General Manager Regional Manager (North) of All State Trust Bank Plc and a former relationship Manager of Ebenezer Retnan Ventures account with All States Trust Bank Plc, Wuse Abuja and presently a Deputy General Manager of Liberty Bank Plc, Dorothy Uko a former Area Manager of All States Trust Bank Plc Abuja and presently Deputy General Manager of All States Trust Bank Plc Abuja. Duate P. Iyabi former Managing Director of All State Trust Bank Plc and presently the Managing Director International Trust Bank Plc, Lawson A. Omokhodion former Executive Director All State Trust Bank Plc and presently the Managing Director of Liberty Bank Plc, All State Trust Bank Plc a financial institution licensed to transact banking business in Nigeria and Adonye Roberts being and officer of All State Trust Bank Plc Wuse, Abuja, on or about December, 1999 at Abuja within the jurisdiction of the Federal High Court conspired among yourselves to commit a felony to wit: not to verify the identity and address of EBENEZER RETNAN VENTURES, a customer of All States Trust Bank Plc before opening an account for it and thereby committed an offence contrary to Section 16 of the Money Laundering Decree No.3 of 1995 and punishable under Section 15(2) (b) of the same Decree as amended by the Tribunals Certain Consequential Amendments etc.) Decree No.62 of 1999.
COUNT 2
That you, Chief Joshua Chibi Dariye, Governor of Plateau State of Nigeria, Awe Odessa being a former Deputy General Manager Regional Manager (North) of All State Trust Bank Plc and a former relationship Manager of Ebenezer Retnan Ventures account with All States Trust Bank Plc, Wuse Abuja and presently a Deputy General Manager of Liberty Bank Plc, Dorothy Uko a former Area Manager of All States Trust Bank Plc Abuja and presently Deputy General Manager of All States Trust Bank Plc Abuja. Duate P. Iyabi former Managing Director of All State Trust Bank Plc and presently the Managing Director International Trust Bank Plc, Lawson A. Omokhodion former Executive Director All State Trust Bank Plc and presently the Managing Director of Liberty Bank Plc, All State Trust Bank Plc a financial institution licensed to transact banking business in Nigeria and Adonye Roberts being and officer of All State Trust Bank Plc Wuse, Abuja, on or about December, 1999 at Abuja within the jurisdiction of the Federal High Court failed to verify the identity and address of EBENEZER RETNAN VENTURES, a customer of All States Trust Bank Plc before opening an account for it and thereby committed an offence contrary to Section 5(1) (f) of the Money Laundering Decree No.3 of 1995 and punishable under Section 15(2) (b) of the same Decree as amended by the Tribunals Certain Consequential Amendments etc.) Decree No.62 of 1999.
The second charge sheet was numbered FHC/KD/144C/2004 and had two counts namely:
COUNT 1
That you, Chief Joshua Dariye being the Governor of Plateau State of Nigeria, on or about June, 2001 in Abuja and Jos within the jurisdiction of the Federal High Court fraudulently presented a Central Bank of Nigeria cheque for the sum of N1,161,162,900.00 (one billion, one hundred and sixty one million, one hundred and sixty two thousand and nine hundred naira only) in favour of Plateau State to All State Trust Bank Plc Wuse Abuja knowing it to be unlawfully procured and thereby committed an offence contrary to Section 3(2) (a) of the same decree as amended by Tribunals (Certain Consequential Amendments etc) Decree No.62 of 1999.
COUNT 4
That you, Chief Joshua Dariye being the Governor of Plateau State of Nigeria, on or about June, 2001 in Abuja and Jos within the jurisdiction of the Federal High Court dishonestly misappropriated the sum of N1,161,162,900.00 (one billion, one hundred and sixty one million, one hundred and sixty two thousand and nine hundred naira only) due to Plateau State by directing the All State Trust Bank Plc Wuse Abuja to disburse in the following manner namely:
Pinnacle Communication Ltd. :N250,000,000.00
Plateau State Government :N550,000,000.00
Union Home : N 80,000,000.00
PDP South West : N100,000,000.00
Ebenezer Retnan Ventures owned
by Chief Joshua Dariy N160,000,000.00
Ebenezar Retnan Ventures owned
by Chief Joshua Dariye N16,000,000.00
COT 4,300,000.00
Thereby committed an offence punishable under section 309 of the Penal Code.”
From the facts set out in these charge sheets and counts it is crystal clear that Chef Joshua Chibi Dariye was the principal offender in Counts 1 and 2 in charge NO.FHC/KD/143C/2004 and in Counts 1 and 4 in charge No.FHC/KD/144C/2004. A trial and conviction on these counts by his Lordship would have sent the Respondent to various terms of imprisonment contrary to Section 308(1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 which provides that “a person to whom this Section applies shall not be arrested or imprisoned during that period in pursuance of the process of any Court or otherwise.”
Learned Counsel to the appellant ought to have seen the impracticability, futility and absurdity of instituting criminal proceedings against Chief Joshua Chibi Dariye either as the Executive Governor of Plateau State or in his name since he is not a nominal party under Section 308(2) of the Constitution but the principal offender alleged to have conspired with the other co-accused persons to commit those offences.
The onus of showing that the Respondent could be prosecuted as a nominal party in the criminal proceedings resided in the prosecution and not the Respondent. See Section 135(1) (2), 136 and 138(1) and (2) of the Evidence Act 19990. Unfortunately much time and energy was spent in the lower court in arguing under what circumstances the Respondent could be prosecuted as a nominal party in a criminal proceeding or trial.
Learned counsel appearing for the appellant in this appeal did not cite any authority or circumstance when the Executive Governor of any State in the Federation of Nigeria was ever prosecuted in a criminal proceeding either in his official or nominal capacity during his period in office. It does not lie within the province of the appellant but the National Assembly to remove or suspend the immunity granted any Executive Governor as “a person to whom this section applies during his period of office” so as to be sued in a civil cause or matter or in any criminal proceedings. See Section 308(1) (a) (b) and (c) of the Constitution.
A careful reading of the provisions of Section 308(2) of the Constitution will further reveal that the draftsman used the phrase “…civil or criminal proceedings in which such a person is only a nominal party”. In section 18(3) of the Interpretation Act, Cap 192 supra, it is provided that “The word “or” and the word “other” shall, in any enactment, be construed disjunctively and not as implying similarity.”
In Maxwell On The Interpretation of Statutes, 12th edition by P.St. J. Langan page 232 to 234 appears the following statement of the law:
“In ordinary usage, “and” is conjunctive and “or” disjunctive. But to carry out the intention of the legislature it may be necessary to read “and” in place of the conjunction “or”, and vice versa.”
See Anisminic, Ltd v. Foreign Compensation Commission (1969) 2 WLR 163; Tarkaa v. DPP (1961) NNLR 63.
Section 308(2) of the Constitution of the Federal Republic of Nigeria, 1999 governs two situations namely, where a person to whom section 308(1)(a)(c) and (3) applies during his period in office when he can be sued in his official capacity and secondly, where he may be sued in civil or in criminal proceedings as a nominal party.
The appellants agents did not tailor the facts of their case so as to fall within the provisions of Section 308 (2) of the Constitution supra hence I agree totally with the learned trial judge’s holding at page 107 lines 25 – 29 to page 108 lines 1 – 19 of the printed record as follows:-
“Accordingly. I hold that a nominal party in a criminal case within the con of the constitution depends not in his designation as such but in the manner in which the charge is couched. Whether or not a person is a party to a charge depends on the content of the charge and secondly, it also depend on the role he plays in the alleged commission of the offence and the likely punishment he is to earn after conviction. However, it seems the word nominal in its etymological sense simply means something in name only but not in reality. Whether therefore, there could be such a nominal party in criminal proceedings depends on each peculiar factual situation, no hard and fast rule could be laid down in the circumstance. It is my view however, having regard to the fact and circumstances of this case, the charge before me; it is plain that the 1st accused does not appear in all the counts of the charge to be a nominal party. He is a principal offender in the charge No.FHC/KD/143C/2004, the 1st accused, in count 1 and 2 is charged along with other with conspiracy and money laundering contrary to Section 16 and 5(1)(f) respectively of the Money Laundering Decree No.3 of 1995. In charge No.144C the 1st accused is charged aloen in count 1 and 4 of the charge. The 1st accused in all the counts is charged as a principal accused and not as a nominal accused and accordingly, the charges having regard to Section 308 of the Constitution cannot stand. I accordingly strike out count 1 and 4 in charge No.144C. However, in count 1 and 2 in charge No.143C, the 1st accused is jointly charged with others, and there being no challenge to the validity of the charge against the other accused persons, I will apply the blue pencil rule strike out the portions in the charge that relate to the first accused. Accordingly, I order that the name of 1st accused therein and all allegations relating to him shall be struck out. The summons issued against him is hereby set aside.”
Lastly, it should be borne in mind that Section 308(1) (a) (b) and (c) is couched as follows, “Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this Constitution…” which pre-supposes two things. Both are terms of exclusion. See Olatunbosun vs. NISER (1988) 3 NWLR (Pt.80) 25 at 46. Secondly, section 308(1) (a)-(c) is subject to the provisions of Section 308(2) of the 1999 Federal constitution. See Idehen vs Idehen (1991) 7 SCNJ (Pt.2) 196 at 215-216; Clement Ezenwosu vs Aaron Ngonadi (1992) 3 SCNJ 59.
From the facts presented in the charge sheet there are no circumstances to warrant a determination as to the application of the provisions of Section 308(2) of the Constitution of the Federal Republic of Nigeria, 1999.
For all these and the fuller reason given by my Lord OBANDE F. OGUNINYA J.C.A., I also dismiss this appeal and uphold the ruling of the learned trial judge.
Appearances
C. OkoromaFor Appellant
AND
S. IbiwoyeFor Respondent
