IBRAHIM SHEHU SHEMA & ORS v. FEDERAL REPUBLIC OF NIGERIA(2018)

IBRAHIM SHEHU SHEMA & ORS v. FEDERAL REPUBLIC OF NIGERIA

(2018) LCN/4595(SC)

In The Supreme Court of Nigeria

On Friday, the 26th day of January, 2018

SC.814/2017

RATIO

WHETHER ISSUES FOR DETERMINATION MUST BE DISTILLED FROM A GROUND OF APPEAL

The law is trite that an issue must be distilled or distillable from a ground of appeal. PER SIDI DAUDA BAGE, J.S.C.

DUTY OF THE COURT TO CONSIDER ISSUES FORMULATED BY THE PARTIES.

The Court is not however expected to be a “slave” to the litigants and their Counsel by adopting whatever issues formulated hook, line and sinker irrespective of illogicality of such issues. The duty of Court is to consider all the issues, and where appropriate collapse, integrate, harmonise, extend, increase or generally structure and restructure such number of issues as are crucial to effectively and effectually determine the issues in the appeal or matter as the case may be to ensure that justice is done. PER SIDI DAUDA BAGE, J.S.C.

WHETHER THE EFCC IS VESTED WITH THE POWERS TO PROSECUTE IN ANY COURT OFFENCES RELATING TO ECONOMIC AND FINANCIAL CRIMES ALLEGEDLY COMMITTED UNDER THE PENAL AND CRIMINAL CODE OF A STATE

I begin by setting the law straight, by quoting verbatim, the exact provision of the Constitution, which states thus: “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 a Court-martial in respect of any offence created by or under any law of the House of Assembly: (b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and (c) to discontinue at any stage before judgement 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 a state 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 a State shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.” It is common knowledge that, to ensure speedy disposal of criminal cases, the Attorneys-General of the the States do delegate their powers to the various State Commissioners of Police who institute and prosecute criminal matters in the name of the State as Commissioners of Police. Such powers are also delegated to other agencies such as the Federal Board of Internal Revenue, Nigeria Customs Service, National Drug Law Enforcement Agency (NDLEA) 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 in respect of the powers of the Attorney-General of the Federation or State respectively. Nigerians have now internalised the reality of the challenges facing the country in the area of anti-corruption and related financial crimes. Our country people, agencies and institutions are now, or must now be, at home with the shift in the paradigm of impunity to recognise that both the case law and statute provisions recognise the fact that, indeed, the law empowers the EFCC to institute a case in the name of the Attorney General of the Federation, Federal Republic of Nigeria and not necessarily in its name only, and that it can so institute in any Court, State or Federal. This Court has held in several instances that the EFCC is a statutory body created under the laws of Nigeria to investigate and prosecute a class of criminal offences. To further buttress my position on this issue, I wish to reiterate the well settled position of this Court in the case. See NYAME VS. F.R.N. (2010) 7 NWLR (pt.1193) 344. In this case, this Court indicated, and very clearly, that there is nothing here that prevents the EFCC from prosecuting offenders in the name of the “Federal Republic of Nigeria” being the agency responsible for co-coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with Economic and financial crimes in the Federal Republic of Nigeria by virtue of Section 1(2)(c) of the EFCC Act. The effect of our clear and ambiguous stance in NYAME VS F.R.N.(supra) and which we have no reason to depart from, is that the commission (the EFCC) is the co-coordinating agency for the enforcement of the provisions of any other law or regulation on economicand financial crimes, including the criminal code and the penal code. The Commission has the power under Section 13(2) of the Act to prosecute offences so long as they are financial crimes. I have not seen what substantial miscarriage of justice the Appellants have suffered by the EFCC prosecuting them for those offences under the name of Federal Republic of Nigeria for crimes they have allegedly committed under Penal Code Law, Cap 96, Laws of Katsina State. To further amplify that legal authorities clearly support the stand of the trial judge and lower Court, that the EFCC can institute a case in the name of the Attorney-General of the Federation, and not necessarily in its name only, I refer to the case of AMAECHI V. INEC & 2 ORS (2008) 5 NWLR (Pt.080) 221 at 307, this Court, per Oguntade JSC held – “The EFCC is a statutory body created under the laws of Nigeria. Its duties include the investigation and prosecution of a class of criminal offences. In essence; once its investigation has shown prima facie that a person has committed a criminal offence, the duty of EFCC is to have such offender prosecuted in a Court of law…” There is nothing here that prevents the EFCC from prosecuting such offender in the name of the Federal Republic of Nigeria. After all, by Section 1(2)(c) of the EFCC Act, the EFCC has the “responsibility of coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with Economic and Financial Crimes in Nigeria,” i.e. of the Federal Republic of Nigeria. In NYAME VS. F.R.N.(2010) 7 NWLR (Pt.1193) 344, this Court held at page 403 that: – “The Commission is the coordinating agency for the enforcement of the provisions of any other law or regulation or economic and financial crimes, including the criminal code and the penal Code. The Commission has the Power under Section 13(2) of the Act to prosecute offences so long as they are financial crimes.” I need to add, at this stage, by re-echoing the voice of this Court Per NGWUTA, J.S.C. (P. 32, paras. E-G) (DARIYE VS FRN) that, institution of proceeding against any person before any Court in Nigeria other than a Court Martial is not the exclusive prerogative of the Attorney-General of the Federation and/or his counterpart in the State. S.174 (1)(b) and (c) and S.211(1)(b) and (c). This becomes more compelling given the provisions of the Act. I will take a few minutes to quote extensively from the specific provisions of the EFCC Act, to justify the position of this Court that there are several agencies, bodies and institutions, beyond the Attorney-General of the Federation and/or his counterpart in the State, with powers to prosecute specific offences. “7. (1) That the Commission has power to- (a) cause investigations to be conducted as to whether any person, corporate body or organisation has committed an offence under this Act or other law relating to economic and financial crimes; and (b) cause investigations to be conducted into the properties of any person if it appears to the Commission that the person’s life style 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 coordinating agency is charged with the responsibility of enforcing the provisions of- “(a) the Money Laundering Act 2004; 2003 No. 7. 1995 1995; No. 13 (b) the Advance Fee Fraud and Other Fraud Related Offences Act 1995; (c) the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994, as amended; (d) the Banks and other Financial Institutions Act 1991, as amended; and (e) Miscellaneous Offences Act; and (f) any other law or regulations relating to economic and financial crimes including the Criminal Code and Penal Code. “13. (1) The General and Assets Investigation Unit shall be charged with responsibilities for- (a) the prevention and detection of offences in violation of the provisions of this Act; (b) the arrest and apprehension of economic and financial crime perpetrators; (c) the investigation of assets and properties of persons arrested for committing any offence under this Act; (d) the identification and tracing of proceeds and properties involved in any offence under this Act and the forfeiture of such proceeds and properties to the Federal Government; and (e) dealing with matters connected with extradition and mutual assistance in criminal matters involving economic and financial offences. (2) The Legal and Prosecution Unit shall be charged with responsibility for- (a) prosecuting offenders under this Act; (b) Supporting the General and Assets Investigation Unit by providing the Unit with legal advice and assistance, whenever it is required; (c) conducting such proceedings as may be necessary towards the recovery of any assets or property forfeited under this Act and performing such other legal duties as the Commission may refer to it from time to time (3) There shall be appointed for each of the units a principal officer who shall be known by such designation as the Commission may determine. Clearly, it is absolutely impossible to agree less, that the above quoted provisions of the Economic and Financial Crimes Commission (Establishment) Act Cap. El, LFN, Vol. 5, 2004 empowers the prosecutors in Legal and Prosecution Unit of the EFCC to prosecute any person who commits any of the offences that the Commission is empowered to prosecute under the Act. The lower Court was therefore, right in my view to have applied the law correctly when it held that the powers and duties of the EFCC as stated under Section 13 (2) allows the Legal and Prosecution Unit of the Commission to prosecute offenders under the Act. PER SIDI DAUDA BAGE, J.S.C.

POSITION OF THE LAW ON THE HIERARCHY OF LAWS IN NIGERIA

…as stated by Kalgo JSC (as he then was) in ATTORNEY GENERAL, ABIA STATE VS. ATTORNEY GENERAL, FEDERATION (2002) 6 NWLR (Pt. 763) 264 at PAGES 479-480: “The Constitution is what is called the grundnorm and the fundamental law of the land. All other legislations in the land take their hierarchy from the provisions of the Constitution. By the provisions of the Constitution, the laws made by the National Assembly come next to the Constitution, followed by those made by the House of Assembly of a State.” PER SIDI DAUDA BAGE, J.S.C.

POSITION OF THE LAW ON THE RIGHT OF AN ACCUSED TO “BE GIVEN ADEQUATE FACILITIES FOR THE PREPARATION OF HIS DEFENCE”

…it is pertinent to reproduce the provisions of Section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides: “Every person who is charged with a criminal offence shall be entitled to: (a) Be informed promptly in the language he understands and in detail of the nature of the offence; (b) Be given adequate time and facilities for the preparation of his defence…” To all intent and purposes, the phrase “be given adequate facilities for the preparation of his defence” in the above provision is general and open-ended. It is meant to ensure that the accused person or persons receive necessary hints, aid and assistance necessary that would assist him in preparing his defence to the charge, including the statements of the prosecution witnesses and his own written statements. See OKOYE VS COMMISSIONER OF POLICE (supra), AKABOGU VS THE STATE (supra); IBRAHIM VS STATE (supra). PER SIDI DAUDA BAGE, J.S.C.

JUSTICES

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

IBRAHIM SHEHU SHEMA
2. SANI HAMISU MAKANA
3. LAWAL AHMAD SAFANA
4. IBRAHIM LAWAL DANKABA Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): We are this morning constituted as a Court to determine preliminary issues, by way of interlocutory appeal, from the judgment of Court of Appeal sitting in Kaduna, dated 12th day September, 2017, which affirmed the decision of the Katsina State High Court delivered on 21st February, 2017, which dismissed the Appellants’ Motion on Notice dated 3rd day of January, 2017 and filed on 4th day of January, 2017 seeking to (i) declare the filing of the charge sheet by EFCC as incompetent on constitutional grounds and (ii) declare as inchoate the entire proceedings as the charge sheet was not accompanied by proof of evidence as known to law thereby dislodging the Appellants’ right to fair hearing as recognised by Section 36(6) (b) of the 1999 Constitution as amended.

The trial Court’s decision refusing and dismissing the Appellants’ application for lack of merit can be found at pages 34 – 47 of the records; while the decision of the lower Court affirming the decision of the trial Court can be found at pages 291 – 340 of the records.

Being dissatisfied with the decision of the lower

Court, the Appellants filed four separate but identical notices and grounds of Appeal on the 21st of September, 2017 against the judgement in the Registry of Court below containing ten (10) grounds. The identical notices of appeal are contained on pages 341- 404 of the record. The Appellants’ Joint Brief of Argument was subsequently filed on 18th October, 2017 while the Respondent’s Brief is dated 24th October, 2017, and the Appellants’ Joint Reply Brief dated 30th October, 2017.

SUMMARY OF FACTS:
On the 16th December 2016, by a 22-count charge, Appellants were alleged to have committed sundry corruption and financial crime related offences, such as conspiracy, criminal breach of trust, forgery, aiding and abetting contrary to relevant provisions of the Penal Code Law of Katsina State. Consequently, charges were filed against the Accused Persons/Appellants before the Katsina State High Court, pursuant to Section 185 (a) Criminal Procedure Code Law, CAP 37, Laws of Katsina State, 1991 and for offences in the Penal Code.

The charges were filed by the Economic and Financial Crimes Commission (hereinafter called “EFCC”) on the

authorization of the Hon. Attorney General of Katsina State, upon the issuance of a fiat by the said Hon. Attorney General of Katsina State pursuant to Section 211 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

On being served with the charges and prior to arraignment, Appellant filed an application dated 3rd day of January, 2017 and filed on 4th day of January, 2017 as contained at pages 48-90 of the records. The application was seeking to terminate the proceedings on the ground, among others that the EFCC cannot initiate the criminal proceedings against them in the name of the Federal Republic of Nigeria (hereinafter called “F’RN”), and that the EFCC has no power to prosecute a state offences, (even with the fiat of the Attorney General of Katsina State). The Appellants also contended that the prosecution did not furnish them with all the documents necessary for their defence of the case. For these and other reasons, the Appellant challenged the jurisdiction of the trial Court to hear and entertain the charges.

Parts of the reliefs sought in the application forming basis of this appeal, are:
“(1) An order terminating the instant proceedings

i.e. charge no: KTH/34C/2016 FRN VS IBRAHIM SHEHU SHEMA AND 3 OTHERS because the offences alleged against the Applicants are offences cognizable and punishable under the Penal Code Cap 96 Laws of Katsina State and are therefore not FEDERAL OFFENCES which the Federal Republic of Nigeria or any of her Agencies particularly the Economic and Financial Crimes Commission can prosecute.
(2) AN ORDER of this Honourable Court quashing and/or striking out the instant Charge No. KTH/34C/2016 between FRN VS IBRAHIM SHEHU SHEMA & 3 ORS, dated and filed on the 16th of December 2016 because being State offences cognizable and punishable under the Penal Code Cap 96 Laws of Katsina State, they can only be instituted by the Attorney-General of Katsina State in the name of Katsina State or the Commissioner of Police.”
ALTERNATIVELY
“(1) An Order directing the Prosecutor to furnish the Defence with all documents inclusive of all the statements made by the Defendants, statements made by all the witnesses, Police Investigation Reports, Statements of Bank Accounts in compliance with Section 84 of the Evidence Act, and every other document relevant to prosecution of this matter.

(2) An Order staying further hearing of these proceedings until the Order of this Honourable Court granting the Defendants leave to access all documentary evidence to be relied on by the Prosecution in the instant trial is obeyed and or complied with.
(3) AN ORDER dispensing with the physical appearance and arraignment of 1st – 4th Appellants/Applicants in the instant Charge No: KTH/34C/2016 between FRN VS IBRAHIM SHEHU SHEMA & 3 ORS during and pending the determination of this Motion on Notice.
AND FOR SUCH FURTHER ORDER/ORDERS as this Honourable Court may deem fit to make in the circumstances.”

In a ruling delivered on 21st January, 2017, the learned trial Judge, after considering the respective submissions of Counsel to the parties, dismissed the Appellants’ objection and affirmed its jurisdiction to hear the charges.

Dissatisfied with the above ruling, the Appellants filed 4 identical notices of appeal containing 5 similar grounds each to the Court of Appeal. The said notices and grounds of appeal are contained at Pages 168 – 199 of the record of appeal.

The lower Court heard the Appellants’ appeal on the 15th day of June, 2017 and delivered its ruling on the 12th September, 2017. In its ruling, the lower Court held inter alia, that the appeal is frivolous, vexatious and devoid of any merit.
The Court below specially held that the Attorney General of Katsina State has the powers to invite EFCC (an agency of the Federal Government) to prosecute the case.

Still being unhappy with the ruling of the lower Court, the Appellants filed 4 identical Notices of Appeal and formulated 10 grounds. The Appellants specifically canvassed that, because part of the decision of the Court of Appeal emphasized the existence of Supreme Court decisions on the issue of the power of the EFCC to prosecute under the Penal Code in the name of the Federal Republic of Nigeria, the Appellants sought to invoke the power of the Supreme Court of Nigeria to depart from its previous decision(s) by overruling itself. The Notices of Appeal are contained at pages 341-404 of the records of appeal.

ISSUES FOR DETERMINATION:
At page 14 of their Brief of Arguments dated 17th October, 2017 and filed on 18th October, 2017, the

Appellants formulated three issues for the determination of this appeal, thus:
“(1) Whether contrary to the resolution of the Court below, the issues formulated by the Appellants in the Court below, did not arise from the grounds of appeal and the facts in the printed record, and whether such a finding did not prejudice the mind of the said Court below when it held that Appellants were not entitled to the documents requested from the Prosecution until after plea had been taken and by so holding made out a new case for the Respondent (ISSUE NO 1) (GROUNDS 1 AND 9).
(2) Whether the Kaduna Division of the Court of Appeal was right when it affirmed the decision of the Katsina State High Court that the Attorney-General of Katsina State has the powers to invite EFCC (an agency of the Federal Government) to prosecute the Appellants in the name of the Federal Republic of Nigeria before the Katsina State High Court for offences allegedly committed under the Penal Code Cap 96 Laws of Katsina State (Issue No. 2) (Grounds 3, 4, 5 and 6 of the identical notices appeal).
(3) Whether the Kaduna Division of the Court of Appeal was right when it affirmed the decision of the

Kastina State High Court that the non-availability of all the documents i.e. statements of accused persons and all witnesses, investigation reports, bank statements and other documents by the prosecution to the accused persons did not breach the provisions of Section 36-(6) – (b) of the 1999 Constitution (Issue No 3) (Grounds 7, 8 and 10 of the identical notices of appeal).”

On its part, the Respondent also formulated three issues for determination at page 6 of its Respondents Brief dated and filed 24th October, 2017, thus:
“(1) Having regard to the grounds of appeal and the facts in the printed record, whether the Court of Appeal was not right in its approach of formulating and/or reformulating relevant issues for determination submitted by parties, after holding that the Appellants issue was incompetent and whether same has occasioned any bias and/or miscarriage of justice in the entire circumstance of the appeal (Grounds 1 and 9 in the identical notices of appeal).
(2) Whether having regard to the provisions of relevant laws and judicial authorities especially Section 211 Constitution of the Federal Republic of Nigeria, the

lower Court was not right when it upheld the decision of the Katsina State High Court that the EFCC as a common agency for both Federal and State economic and financial crimes, is empowered to initiate criminal proceedings and file charge No. KTH/34C/2016 before the Katsina State High Court for offences in the Penal Code Law, Cap 96, Laws of Katsina State, with or without the Attorney General’s authorization (Grounds 2, 3, 4, 5 and 6).
(3) Whether having regard to the peculiar circumstances of the case leading to the appeal, the lower Court was not right to have upheld the decision of the trial Court that the charge (No. KTH/34C/16) and the proof of evidence thereof are competent and not in breach of Section 36 (6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (Grounds 7, 8 and 10).”

The issues formulated by the parties are similar in some respect. I have considered the issues formulated on behalf of the parties some of which overlap, resulting in seemingly repetitious arguments and submissions. The justice of this appeal demands that I narrow down the main issues as precisely as possible

with clarity to ensure a judicious, effective and proper determination of the issues in contention between the parties in this interlocutory appeal. Given this background, I am persuaded that issues 2 of both the Appellants and Respondent and issue 3 of the Respondents are the main issues in this appeal, and I have adopted same with modification thus:
“(1) Whether the lower Court was right when it upheld the decision of the Katsina State High Court that the EFCC as a common agency for both Federal and State Economic and Financial Crimes, is empowered to initiate criminal proceedings and file charge No. KTH/34C/2016 before the Katsina State High Court for offences in the Penal Code Law, Cap 96, Laws of Katsina State, with the Attorney General’s authorization.
(2) Whether having regard to the circumstances of the case leading to this appeal, the lower Court was not right to have upheld the decision of the trial Court that the charge (No. KTH/34C/16) and the proof of evidence thereof are competent and not in breach of Section 36 (6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999”

CONSIDERATION AND RESOLUTION OF RELEVANT ISSUES:
RESOLUTION OF PRELIMINARY POINTS

Two preliminary issues have been raised by the Appellants and Respondent. By way of a Motion on Notice dated 24th October, 2017, the Respondent has prayed this Court to strike out issue 3 of the Appellants’ Brief of argument for being incompetent. In support of this position, the learned Senior Counsel for the Respondent contented that issue 3 was formulated from virus invested grounds, having derived from a non-existing “ground 10”. Counsel submitted that an issue cannot arise from a non-existing ground and liable to be struck-out, citing the case of OKETADE VS ADEWUNMI (2010) 8 NWLR Pt. 1195, at 63, GLOBE FISHING IND. LTD VS. COKER (1990) 7 NWLR Pt. 162, at 265.
In sum, the learned Counsel urged this Counsel to strike out issue 3 formulated by the Appellants.

In their response to the Motion as contained in pages 3-4 of the Appellants’ Joint Reply Brief dated 30th October, 2017, the Appellants contended that it is long settled that cases are not decided on technicalities, citing the case of ADEKEYE VS AKIN-OLUGBADE (1987) 3 NWLR Pt. 60, at 214 and urged this Court to dismiss the said motion/preliminary objection.

The above issue I is crucial to the resolution of the main issues in this interlocutory appeal. The necessary question is what is the nature or purport of the Appellants’ issue 3 that the Respondent earnestly desired to have same struck-out. Issue 3 of the Appellants qualifies as a “mega issue” due to its nature. The Appellants’ issue 3 in contention reads:
“Whether having regard to the peculiar circumstances of the case leading to the appeal, the lower Court was not right to have upheld the decision of the trial Court that the charge (No. KTH/34C/16) and the proof of evidence thereof are competent and not in breach of Section 36 (6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (Grounds 7, 8 and 10).”

Having taken a careful look at issue 3 and the arguments for and against same by the Respondent and the Appellants, I am of the view that the Appellants’ issue 3 is incompetent having not derived from cognisable ground of Appeal. The law is trite that an issue must be distilled or distillable from a ground of appeal. This is not the case here. In this circumstance, I take a cue from the decision of

this Court in AKEREDOLU VS. MIMIKO & 2 ORS (2013) 12 SCM (pt.2) 135 at 154, and hold that issue 3 is incompetent and same is hereby struck-out.

I also wish to state, by way of further elucidation, that the Court is bound to consider an issue once formulated by the parties. The Court is not however expected to be a “slave” to the litigants and their Counsel by adopting whatever issues formulated hook, line and sinker irrespective of illogicality of such issues. The duty of Court is to consider all the issues, and where appropriate collapse, integrate, harmonise, extend, increase or generally structure and restructure such number of issues as are crucial to effectively and effectually determine the issues in the appeal or matter as the case may be to ensure that justice is done.
In this circumstance, this Court has given deep thoughts to ALL the issues and ARGUMENTS canvassed by the Appellants and the Respondent in all three different briefs filed in respect of this interlocutory appeal, namely the Appellants’ Joint Brief of Argument, the Respondent’s Brief of Argument and the Appellant Joint Reply Brief. Some of the issues overlap and/or are interwoven.

It is not possible for a Court to formulate issues on every shade of opinions or arguments canvassed by the parties in a case or appeal. It is in view of the foregoing that I have limited myself to two main issues in this interlocutory appeal. All other ancillary arguments and issues are duly considered within the confines of the two main issues formulated from the issues respectively formulated by the parties, for the purpose of determining this crucial interlocutory appeal of national significance.

RESOLUTION OF ISSUE 1:
“Whether the lower Court was right when it upheld the decision of the Katsina State High Court that the EFCC as a common agency for both Federal and State economic and financial crimes, is empowered to initiate criminal proceedings and file charge No. KTH/34C/2016 before the Katsina State High Court for offences in the Penal Code Law, Cap 96, Laws of Katsina State, with the Attorney General’s authorization.”

The thrust of the contention of the Appellants in this interlocutory appeal, is best summarised as unwillingness to allow the agent of the Respondent, the EFCC, prosecute the Appellants for the allegations

levied against them. This contention is anchored on the issue two of the Appellants’ Brief of Argument. As stated above, issue one formulated by the Appellants has not been of much assistance to us in pursuit of our sole objective of justice, beyond technicalities and deployment of dilatory advocacy skills.

We note that, in their arguments on the issue as formulated for the purpose of this appeal, which is similar to issue two formulated by the Appellants, it is contended that the Court below saw nothing wrong with the initiation of the 22-count charge by the EFCC on the basis that the Attorney-General of the State is not the only person empowered under Section 211 of the CFRN (as amended) to institute criminal charges in a Court of law. This is because, the Appellants contend, the law recognizes that where any other person or body of persons is empowered under other enactments to initiate and commence criminal proceedings, such a person or body of persons could competently commence such proceedings in the High Court.

The Appellants contended further that, the position of the Court below was erroneous on the ground that the Court based the validity of the charges preferred

against the Appellants on the provision of Section 211 of the 1999 Constitution of the Federal Republic of Nigeria. The learned Senior Counsel to the Appellants contended that, the Court below was wrong not to have recognised that the powers of Federal and State authorities were kept in strict water-tight compartments by the provisions of Sections 174(1)-(3) and 211(1)-(3) of the 1999 Constitution.

The learned senior Counsel pointed out that the territorial jurisdiction in criminal matters is determined by the statute creating it. Counsel cited the case of NITEL PLC VS AWALA (2002) 3 NWLR (Pt.753) 1 at 12, para E and submitted that the proper prosecuting party in a criminal trial depends on whether the offence was created by the State Government or by the Federal Government. He contended further that the delegation to EFCC by the Attorney-General of Katsina State can only be construed as being tantamount to Katsina State surrendering its ‘independence or sovereignty’ to the Federal Government of Nigeria.

On the supposition that Nigeria is a Federation and that the Constitution does not permit a Federal Agency to

invade a state by way of the so-called powers to prosecute, the learned Senior Counsel to the Appellants cited and quoted extensively from the decision of the lower Court in the case of SUNDAY OLOYEDE VS THE STATE (2013) LPELR- 22215 (CA).

The learned Senior Counsel observed that, to arrive at its decision, the lower Court had relied on the cases of DARIYE VS FRN (2015) 10 NWLR Pt. 1461 PAGE 325 at 352-354 and NYAME VS FRN (2010) 7 NWLR Pt.1193 PAGE 394 and the case of JINADU VS FRN (2015) LPELR – 24381 (CA) and KALU VS FRN (2016) LPELR- SC.215/2012. However, the learned Appellants’ Counsel contended that those cases could be distinguished from the instant appeal to the extent that they are completely outside the scope and purview of the prosecutorial powers of the EFCC. Counsel reasoned that Section 13(2) of the EFCC only allows its legal and prosecution unit to prosecute offenders for offences committed under the Act. Counsel contended that the Penal and Criminal Codes are not Federal enactments but State laws. Moreover, the Appellants were specifically charged under the provisions of Cap 96 Laws of Katsina State.

The learned Appellants’ Counsel submitted in the

alternative that should this Court be minded to apply the decision in DARIYE and NYAME (Supra) for the purpose of interpreting Section 13(2) of the EFCC Act, then, this Court is being invited by Counsel to do two things; modify its previous position and depart from the decisions (rations) in the two cases. To drive home its position on the need to overrule ourselves and depart from our previous decisions, the Appellants relied on, and quoted extensively from the case of BUCKNOR-MACLEANS VS INLAKS LTD (1980) 8-11 SC, per Idigbe JSC (as he then was); TEWOGBADE VS OBADINA (1994) 4 SCNJ 161, per Iguh JSC, (as he then was).

In sum, the learned Senior Counsel to the Appellants respectfully urged this Court to depart from the cases of DARIYE and NYAME (supra) as they suggest that the EFCC can prosecute in State Court offences allegedly committed under the Penal and Criminal Code of a State, and to resolve this issue one (same as issue 2 in the Appellants’ Brief of Arguments) in favour of the Appellants.

On its part, the Respondent argued in respect of this issue that, the Appellants have taken the burden of Katsina State government on themselves, crying

about “sovereignty” of Katsina State. The position of the Respondent is informed by the fact that Katsina State that donated the power has not complained of a breach of its sovereignty. The learned Counsel submitted further that the powers vested in the Attorney General pursuant to Section 211 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is not subject to review by any Court of law. To support this view, the learned Senior Counsel relied on the case of STATE VS ILORI (1983) Vol. 14 NSCC Pt. 69 at 75; GEORGE VS FRN (2011) 10 NWLR (Pt.1254) 1 at 68, and further argued that any exercise of the powers of the Attorney General is presumed to have been rightly and regularly done until the contrary is proved, relying on Section 150(1) Evidence Act, 2011; OGBUANYINYA VS OKUDO (1990) 7 SC Pt. 1, 66; TIMOTHY VS FRN (2008) All FWLR (Pt. 402) 1136; ADEBAYO vs. THE STATE (2012) LPELR-9464-CA.

The parties are ad-idem that the basis of the appeal is the propriety or otherwise of the Attorney-General of Katsina State in donating its power to the EFCC, an agency Respondent to file charges against the Appellants pursuant to Section 211 of the Constitution

the States do delegate their powers to the various State Commissioners of Police who institute and prosecute criminal matters in the name of the State as Commissioners of Police. Such powers are also delegated to other agencies such as the Federal Board of Internal Revenue, Nigeria Customs Service, National Drug Law Enforcement Agency (NDLEA) 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 in respect of the powers of the Attorney-General of the Federation or State respectively.
Nigerians have now internalised the reality of the challenges facing the country in the area of anti-corruption and related financial crimes. Our country people, agencies and institutions are now, or must now be, at home with the shift in the paradigm of impunity to recognise that both the case law and statute provisions recognise the fact that, indeed, the law empowers the EFCC to institute a case in the name of the Attorney General of the Federation, Federal

Republic of Nigeria and not necessarily in its name only, and that it can so institute in any Court, State or Federal. This Court has held in several instances that the EFCC is a statutory body created under the laws of Nigeria to investigate and prosecute a class of criminal offences.
To further buttress my position on this issue, I wish to reiterate the well settled position of this Court in the case. See NYAME VS. F.R.N. (2010) 7 NWLR (pt.1193) 344.
In this case, this Court indicated, and very clearly, that there is nothing here that prevents the EFCC from prosecuting offenders in the name of the “Federal Republic of Nigeria” being the agency responsible for co-coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with Economic and financial crimes in the Federal Republic of Nigeria by virtue of Section 1(2)(c) of the EFCC Act.
The effect of our clear and ambiguous stance in NYAME VS F.R.N.(supra) and which we have no reason to depart from, is that the commission (the EFCC) is the co-coordinating agency for the enforcement of the provisions of any other law or regulation on economic

and financial crimes, including the criminal code and the penal code. The Commission has the power under Section 13(2) of the Act to prosecute offences so long as they are financial crimes. I have not seen what substantial miscarriage of justice the Appellants have suffered by the EFCC prosecuting them for those offences under the name of Federal Republic of Nigeria for crimes they have allegedly committed under Penal Code Law, Cap 96, Laws of Katsina State.
To further amplify that legal authorities clearly support the stand of the trial judge and lower Court, that the EFCC can institute a case in the name of the Attorney-General of the Federation, and not necessarily in its name only, I refer to the case of AMAECHI V. INEC & 2 ORS (2008) 5 NWLR (Pt.080) 221 at 307, this Court, per Oguntade JSC held –
“The EFCC is a statutory body created under the laws of Nigeria. Its duties include the investigation and prosecution of a class of criminal offences. In essence; once its investigation has shown prima facie that a person has committed a criminal offence, the duty of EFCC is to have such offender prosecuted in a Court of law…”

There is nothing here that prevents the EFCC from prosecuting such offender in the name of the Federal Republic of Nigeria. After all, by Section 1(2)(c) of the EFCC Act, the EFCC has the “responsibility of coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with Economic and Financial Crimes in Nigeria,” i.e. of the Federal Republic of Nigeria. In NYAME VS. F.R.N.(2010) 7 NWLR (Pt.1193) 344, this Court held at page 403 that: –
“The Commission is the coordinating agency for the enforcement of the provisions of any other law or regulation or economic and financial crimes, including the criminal code and the penal Code. The Commission has the Power under Section 13(2) of the Act to prosecute offences so long as they are financial crimes.”
I need to add, at this stage, by re-echoing the voice of this Court Per NGWUTA, J.S.C. (P. 32, paras. E-G) (DARIYE VS FRN) that, institution of proceeding against any person before any Court in Nigeria other than a Court Martial is not the exclusive prerogative of the Attorney-General of the Federation and/or his counterpart in the State. S.174 (1)(b) and (c) and

S.211(1)(b) and (c). This becomes more compelling given the provisions of the Act.
I will take a few minutes to quote extensively from the specific provisions of the EFCC Act, to justify the position of this Court that there are several agencies, bodies and institutions, beyond the Attorney-General of the Federation and/or his counterpart in the State, with powers to prosecute specific offences.
“7. (1) That the Commission has power to-
(a) cause investigations to be conducted as to whether any person, corporate body or organisation has committed an offence under this Act or other law relating to economic and financial crimes; and
(b) cause investigations to be conducted into the properties of any person if it appears to the Commission that the person’s life style 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 coordinating agency is charged with the responsibility of enforcing the provisions of-
“(a) the Money Laundering Act 2004; 2003 No. 7. 1995 1995; No. 13
(b) the Advance Fee Fraud and Other Fraud Related

Offences Act 1995;
(c) the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994, as amended;
(d) the Banks and other Financial Institutions Act 1991, as amended; and
(e) Miscellaneous Offences Act; and
(f) any other law or regulations relating to economic and financial crimes including the Criminal Code and Penal Code.
“13. (1) The General and Assets Investigation Unit shall be charged with responsibilities for-
(a) the prevention and detection of offences in violation of the provisions of this Act;
(b) the arrest and apprehension of economic and financial crime perpetrators;
(c) the investigation of assets and properties of persons arrested for committing any offence under this Act;
(d) the identification and tracing of proceeds and properties involved in any offence under this Act and the forfeiture of such proceeds and properties to the Federal Government; and
(e) dealing with matters connected with extradition and mutual assistance in criminal matters involving economic and financial offences.
(2) The Legal and Prosecution Unit shall be charged with responsibility for-<br< p=””
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(a) prosecuting offenders under this Act;
(b) Supporting the General and Assets Investigation Unit by providing the Unit with legal advice and assistance, whenever it is required;
(c) conducting such proceedings as may be necessary towards the recovery of any assets or property forfeited under this Act and
9 performing such other legal duties as the Commission may refer to it from time to time
(3) There shall be appointed for each of the units a principal officer who shall be known by such designation as the Commission may determine.
Clearly, it is absolutely impossible to agree less, that the above quoted provisions of the Economic and Financial Crimes Commission (Establishment) Act Cap. El, LFN, Vol. 5, 2004 empowers the prosecutors in Legal and Prosecution Unit of the EFCC to prosecute any person who commits any of the offences that the Commission is empowered to prosecute under the Act. The lower Court was therefore, right in my view to have applied the law correctly when it held that the powers and duties of the EFCC as stated under Section 13 (2) allows the Legal and Prosecution Unit of the Commission to prosecute offenders under the Act.

Without prevarications, Section 7 (2) (f) empowered the EFCC to enforce any law or regulations relating to Economic and Financial Crimes, including the Penal Code.
It is not in contention that:
“(1) the Attorney-General of Katsina State has donated a fiat to the Respondent’s agency (the EFCC) to prosecute the Appellants pursuant to Section 211 of the Constitution;
(2) by Section 7 (1) the Commission has power to cause investigations to be conducted as to whether any person, corporate body or organisation has committed an offence under the Act or other law relating to economic and financial crimes:
(3) by Section 7(2)(f), in addition to the powers conferred on the Commission by the Act, the Commission shall be the co-ordinating agency charged with the responsibility of enforcing the provisions of (f) any other law or regulations relating to economic and financial crimes including the Criminal Code and Penal Code;
(4) by the provisions of 13 (2) the Legal and Prosecution Unit shall be charged with responsibility for prosecuting the offenders.”
With those key points, the regime of anti-corruption

law in Nigeria is meant to be symbiotically applied, implemented and given effect by both Federal and State agencies. There is much wisdom in so doing. There is a national revolt by all concerned against corruption and financial crimes, at all levels of the Courts – including ours as the Supreme Court of the land. Indigenous philosophies of Nigerians support this symbiotic, multi-institutional, pronged-approach to the war against corruption and financial infelicities, more appropriately called financial crimes.
As between EFCC Act and Penal Code, or between Federal Government of Nigeria and Katsina State of Nigeria, what matters most, and justifiably so, is that corruption and financial crimes be tracked, investigated, prosecuted and punished. The age-old indigenous view in Southwest (and perhaps in other parts of Nigeria) is that the “Snake of financial crime” be not allowed to escape on account of gender sentiments. It matters not if the ‘monstrous snake’ of corruption and financial crimes biting Nigeria is killed by a man or women; all that matters is the death of the ‘deadly snakes’ of corrupt practices and financial hooliganism daily killing Nigeria and Nigerians.

At this stage, the guilt of the Appellants is not yet established. This matter is yet to be tried but has only travelled the long, tortious journey of interlocutory appeal to prove or test the law. That is why we must, as a Court of law of last resort, set the law straight. It is the intention of the makers of the law, that the EFCC prosecutes financial crimes. To the extent that a State has not, for the time being, established equivalent agency like the EFCC for dealing with Economic and Financial Crimes Commission at the State level, the powers of the EFCC remains extant. This is because the EFCC is vested with powers to co-ordinate and enforce related provisions in the Penal Code – which provisions do not violate any known Law of Katsina State.
The law on the hierarchy of laws in Nigeria, is as stated by Kalgo JSC (as he then was) in ATTORNEY GENERAL, ABIA STATE VS. ATTORNEY GENERAL, FEDERATION (2002) 6 NWLR (Pt. 763) 264 at PAGES 479-480:
“The Constitution is what is called the grundnorm and the fundamental law of the land. All other legislations in the land take their hierarchy from the provisions of the Constitution.

By the provisions of the Constitution, the laws made by the National Assembly come next to the Constitution, followed by those made by the House of Assembly of a State.”
Thus, the lower Court was right when it held at page 310 of the record of appeal thus: “Further, the argument that the Criminal Procedure Code Law of Katsina State does not provide for or accommodate the power of the Economic and Financial Crimes Commission to institute criminal proceedings in the High Court of Katsina State by filing of Information cannot change this position. This is because it will mean that the Criminal Procedure Code Law of Katsina State is in obvious conflict with the Economic and Financial Crimes Commission (Establishment) Act.”
To the extent of the above provisions of the law, it is our considered view that the lower Court applied the law correctly. The law evinces a clear intention that, with or without express delegation from the Attorney General of Katsina State, the EFCC could validly prefer the present charges and prosecute the Appellants in the name of the Federal Republic of Nigeria as a common agency of both the Attorney General of the Federation

and Attorney General of Katsina State. We agree with the Respondent that a community reading of provisions of Sections 15(5) and 211 (1)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Sections 6(m), 7(f), 13(2)(a) and (d) and 46 of the EFCC (Establishment) Act, 2004 and Section 185(a) of the Criminal Procedure Code (CPC), Cap 37, Laws of Katsina State, 1991 gives the EFCC power to do what it sought to do by attempting to prosecute the Appellants.
In view of the foregoing, issue one is resolved in favour of the Respondent, and we hold that the Economic and Financial Crimes Commission possesses the power to institute the present criminal proceedings against the Appellants in the High Court of Katsina State by filing of Information.

RESOLUTION OF ISSUE 2:
“Whether having regard to the circumstances of the case leading to this appeal, the lower Court was not right to have upheld the decision of the trial Court that the charge (No. KTH/34C/16) and the proof of evidence thereof are competent and not in breach of Section 36 (6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999”

The main contention of the Appellants on this issue is that they were not availed of the Prosecution’s documents to be used in proof of its case such as statements of Accused persons, statements of witnesses and every other documentary evidence to be used by the prosecution and that such lapse or breach amounted to a breach of their rights as guaranteed by Section 36(6)(b) of the 1999 Constitution.

The learned Senior Counsel to the Appellants submitted emphatically, that the Court of Appeal was wrong when it held that the Appellants were not entitled to the documents requested from the Prosecution until after plea had been taken and by so holding made out a new case for the Respondent. Counsel pointed out the perceived offensive part of the ruling of the lower Court as contained at page 321-322 of the records, where his lordship Abiru JCA held as follows:
“Section 36 (6) (b) only comes to play after charges have been preferred and the accused person has pleaded to the charge preferred, and even then, it is not automatic and has to be applied for. Therefore, the non-service, and even the non-provision, of the ‘facilities’ for defence along with the proofs of

evidence accompanying a charge cannot constitute an omission and it cannot make the proofs of evidence incomplete or inchoate and in breach of Section 36 (6) (b) of the Constitution. There is nothing in Section 36 (6) (b) of the 1999 Constitution that can invalidate a charge preferred against an accused person. The proofs of evidence served on the Appellants, along with the charge, met the requirements of the law. It is settled law that the purpose of serving proofs of evidence on an accused person is to give him the opportunity of knowing what the prosecution witnesses are coming to Court to say against him – EDE VS. THE STATE (1977) 1 FCA 95, ABACHA VS. THE STATE (2002) 11 NWLR (pt. 779) 437…”

On the basis of the foregoing, the learned Senior Counsel to the Appellants urged this Court to resolve this issue in favour of the Appellants, and to hold that they were not availed of the Prosecution’s documents to be used in proof of its case contrary to Section 36(6)(b) of the 1999 Constitution.

The Appellants further contended that the ruling of the trial Judge, which was upheld by the lower Court, stemmed from the misconception that the proof of

evidence annexed to the charge. He contended that the trial Court was in error of law, and which error was wrongly upheld at the lower Court. On this basis, the Appellants urged us to resolve issue two in its favour.

The Respondent debunked the Appellants’ arguments as totally misconceived. According to the learned Senior Counsel for the Respondent, the decision of the lower Court that the charge filed against the Appellants, along with the proofs of evidence, is competent was based on sound reasoning and this Court has no business tampering with it. The learned Senior Counsel to the Respondent contended that the charge sheet served on the Appellants had attached to it a proof of evidence which had the names and addresses of the witnesses; the summary of the evidence the Witnesses would give; and of course the list of exhibits to be tendered as contained at pages 8 – 22 of the records. Counsel insisted that no other facilities are required for the Appellants to know and anticipate the charges against them.

The learned Senior Counsel to the Respondent contended further that the Courts have interpreted the phrase “be given adequate facilities for the

preparation of his defence” in Section 36 6(b) to mean that a person charged with an offence is entitled on demand to be given anything that would assist him in preparing his defence to the charge, including the statements of the prosecution witnesses and his own written statements. To buttress its position, the Respondent cited the cases of OKOYE VS COMMISSIONER OF POLICE (2015) LPELR-24675(SC), AKABOGU VS THE STATE (2016) LPELR-40929 (CA), NWEKE VS THE STATE (2017) LPELR-42103(SC), IBRAHIM VS STATE (2017) LPELR SC 652/2013.

The Respondent submits further that the lower Court was on sound legal footing when it affirmed the decision of the trial Court that there were enough facilities available for the defence to defend themselves and that the proof of evidence was competent and not in breach of Section 36(6)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended).

In conclusion, the learned Senior Counsel to the Respondent submitted that that the charge No. KTH/34c/2016 and the proofs of evidence thereof are competent and in total compliance with the requirements of the applicable law. The learned Senior

Counsel asserted that the decision of the lower Court cannot be faulted if carefully perused by this Court, and urged the Court to resolve this issue in favour of the Respondent.

In resolving this issue, it is pertinent to reproduce the provisions of Section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides:
“Every person who is charged with a criminal offence shall be entitled to:
(a) Be informed promptly in the language he understands and in detail of the nature of the offence;
(b) Be given adequate time and facilities for the preparation of his defence…”
To all intent and purposes, the phrase “be given adequate facilities for the preparation of his defence” in the above provision is general and open-ended. It is meant to ensure that the accused person or persons receive necessary hints, aid and assistance necessary that would assist him in preparing his defence to the charge, including the statements of the prosecution witnesses and his own written statements. See OKOYE VS COMMISSIONER OF POLICE (supra), AKABOGU VS THE STATE (supra); IBRAHIM VS STATE (supra).
In this appeal, it is obvious that what the Appellants

seek is to “be given adequate time and facilities for the preparation of his defence”, which would appear to have been made available by way of proofs of evidence which had the names and addresses of the witnesses; the summary of the evidence the witnesses would give; and the list of exhibits to be tendered as contained, all which are contained in pages 8 – 22 of the records. Clearly, what the Appellants desire, I think inappropriately, to be availed with the primary documents the prosecution would tender in evidence in the charge and/or provide them a complete proof of evidence containing the said primary documents. Our attention is drawn to paragraphs 15 and 19(i), (ii) and (iii) of the affidavit in support of the Appellants’ Motion (at pages 53 and 54 of the records of appeal), which forms the basis of this appeal. Their grouse in the said motion is that the Respondent has not served actual documents, not just the copies thereof, which the prosecution intends to rely upon at the trial.
It is my candid view that the lower Court did justice to this issue when it affirmed the decision of the trial Court that non-availability or provision of all

the documents i.e. statements of accused persons and all witnesses, investigation reports, bank statements and other documents by the prosecution to the accused persons did not breach the provisions of Section 36(6) (b) of the 1999 Constitution. This is because the application was premature. As at the time of the Appellants’ application before the trial Court leading to this appeal was brought, the Appellants had not taken their plea to the charge which made the application to be premature and untenable.
Finally, on this point, I wish to restate the fact that the intention of Section 36 (6)(a) and (b) of the 1999 Constitution (as amended) is to give an accused person the opportunity to know the case against him and to prepare and be heard on his defence. Therefore, I hold that the 22 count charge, the proof of evidence, list of Exhibits, list of witnesses with their addresses that accompany charge No. KTH/34C/2016 are competent and in sufficient compliance with the requirements of Section 36(6)(a) and (b) of the 1999 Constitution (as amended). In sum, issue two is resolved in favour of the Appellants.

I need to make one final point before concluding

this ruling by responding specifically to the request made on this Court by the Appellants to depart from its previous decisions. Put differently, the Appellants have laboured to persuade this Court to depart from its previous decision in DARIYE vs. F.R.N. (supra) and NYAME VS. F.R.N. (supra). However, Appellants failed to state or demonstrate any cogent reason, ground or situation justifying a departure from the aforementioned decisions of this Court. This Court may, and could in justifiable cases, depart or overrule its previous decisions under certain identifiable circumstances and in accordance with the laid down principles of law. The Supreme Court could depart from its previous decisions where it is shown or demonstrated that the earlier decisions are either erroneous in law; reached per incuriam or occasioning a miscarriage of justice. In the instant case, the Appellant invited the Supreme Court to overrule its previous decisions on the interpretation that Section 7(1), (2) and Section 13(2) of the EFCC Act which provide the EFCC with the powers and right to prosecute under the Penal and Criminal Codes of States in the State High Court.

It needs to be said clearly, and for the avoidance of misconceptions of the principle or basis of the rule on departing from previous decisions, that this Court does not indulge in the practice of departing from its previous decisions to suit the whims and caprices of the litigants, but to sustain the ends of justice. The Supreme Court has never, and may that day never be dawn, when it will depart from its previous decisions merely because the decision(s) is and/or are against the case presented by the parties.
In this interlocutory appeal, the Appellants have not shown or demonstrated that the above decisions of the Supreme Court in DARIYE VS F.R.N. (supra) and NYAME VS F.R.N. (supra) complained of are erroneous in law or given per incuriam or contrary to public policy thereby occasioning miscarriage of justice. That is not the case here. Quite frankly, if there is anything in those two cases, they affirm and seek vehemently to implement and apply the public policy against corruption and financial crimes, what I described above as ‘deadly snakes’ of corrupt practices and financial hooliganism daily killing Nigeria and Nigerians.

Therefore, the ‘unholy’ invitation of the Appellants to depart from those decisions of this Court for the sole benefit of twisting this appeal in their favour is hereby refused as baseless, and unjustifiable. Ours is to look beyond the sometimes deceptive, woolly persuasions of all Counsel, and this should be the position in all cases and appeals, to ensure that justice is not only done, but manifestly seen by all and sundry to have been done.

Having resolved the two issues formulated in this appeal against the Appellants and in favour of the Respondent, it necessarily means this appeal is unmeritorious. Therefore, I rule and declare that this appeal lacks merit and is accordingly dismissed.
I affirm the judgment of the lower Court.
That will be the judgment of this Court.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Sidi Dauda Bage JSC and to register that support, I shall make some comments.

This is an appeal against the decision of the full panel of the Court of Appeal, Kaduna Division or Court below or lower Court delivered on the 12th day of September, 2017, Coram: Adzira Gana Mshelia,

Uchechukwu Onyemenam, Stephen Jonah Adah, Habeeb Adewale Olumuyiwa Abiru and Mudashiru Nasiru Oninyangi JJCA which affirmed the decision of the Katsina State High delivered on 21st February, 2017 per Ibrahim M. Bako J. dismissing the appellants’ motion on notice filed on 4th January, 2017 seeking the reliefs on the face of the motion paper which shall be recast hereunder, viz:
1. An Order terminating the instant proceedings i.e., charge No: KTH/34C/2076 FRN v. Ibrahim Shehu Shema & 3 ors because the offences alleged against the applicants are offences cognizable and punishable under the Penal Code Cap 96 Laws of Katsina State and are therefore not Federal Offences which the Federal Republic of Nigeria or any of her Agencies particularly the Economic and Financial Crime Commission can prosecute.
2. An Order of this Honourable Court quashing and/or striking out the instant Charge No. KTS/34C/2016 between FRN v. Ibrahim Shehu Shema & 5 Ors dated and filed on the 16th of December 2016 because being state offences cognizable and punishable under the Penal Code Cap 96 Laws of Katsina State, they can

only be instituted by the Attorney General of Katsina State in the name of Katsina State or the Commissioner of Police.

ALTERNATIVELY
3. AN Order directing the Prosecutor to furnish the defence with all documents inclusive of all the statements made by the defendants, statements made by all the witnesses, Police Investigation Reports, Statement of Bank Accounts in compliance with Section 84 of the Evidence Act, and every other document relevant to the prosecution of this matter.
4. An order staying further hearing of these proceedings until the Order of this Honorouable Court granting the Defendants leave to access all documentary evidence to be relied on by the prosecution in the instant trial is obeyed and or complied with.
5. An Order dispensing with the physical appearance and arraignment of 1st – 4th appellants/applications in the instant Charge No. KTH/34C/2016 between FRN v. Ibrahim Shehu Shema & 3 ors during and pending the determination of this motion on Notice.
6. And for such Further order/orders as this Honorouble Court may deem fit to make in the circumstances.
The grounds upon which the above reliefs were sought are as follows:
(a) That the

(a) That the proceedings was initiated in total disregard for due process and absence of constitutional authority and locus standi on the part of the prosecutor who initiated the proceedings.
(b) That the Proofs of Evidence are incomplete.
(c) That the 22 counts contained in the charge are vague, ambiguous, unspecific, nebulous and speculative.
(d) That the materials being sought to be relied upon by the prosecution i.e., witness statements, appellant’s statement and other sundry documentary evidence have not been given to the defendants or through their learned counsel.
(e) That this Honourable Court does not have the vires/jurisdiction to entertain or adjudicate upon this case.
(f) This Honourable Court has inherent judicial powers to grant all the reliefs sought above.

The full details in the background facts are well set out in the lead judgment and so dispensing of the need to repeat them except for when the occasion calls for a reference in the course of this appeal.

On the 8th day of November, 2017 date of hearing, learned Senior Advocates J. B. Daudu, A. T. Kehinde and E.Y. Kurah adopted their appellant’s brief of

argument filed on the 18th day of October 2017 and a reply brief filed on 30/10/17. In the appellant’s brief of argument were formulated three issues for determination which are as follows:
1. Whether contrary to the resolution of the Court below, the issues formulated by the appellants in the Court below, did not arise from the grounds of appeal and the facts in the printed record, and whether such a finding did not prejudice the mind of the said Court below when it held that appellants were not entitled to the documents requested from the prosecution until after plea had been taken and by so holding made out a new case for the respondent. (Issue 1) (Grounds 1 and 9)
2. Whether the Kaduna Division of the Court of Appeal was right when it affirmed the decision of the Katsina High Court that the Attorney – General of Katsina State has the powers to invite EFCC (An agency of the Federal Government) to prosecute the appellants in the name of the Federal Republic of Nigeria before the Katsina State High Court for offences allegedly committed under the Penal Code Cap 96 Laws of Katsina State (Issue No 2) (Grounds 2, 3, 4, 5 and 6 of the identical notices of appeal).<br< p=””

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Whether the Kaduna Division of the Court of Appeal was right when it affirmed the decision of the Katsina State High Court that the non-availability of all the documents i.e. statements of accused persons and all witnesses, investigation reports, bank statements and other documents by the prosecution to the accused persons did not breach the provisions of Section 36 – (6) (b) of the 1999 Constitution. Issue No 3) (Grounds 7, 8 and 10 of the identical notices of appeal).L. O. Fagbemi SAN, J. S. Okutepa SAN and Dr. J. O. Olatako SAN for the respondent adopted its brief of argument filed on 24/10/17 and in it were raised three issues for determination, which are thus:
1. Having regard to the grounds of appeal and the facts in the printed record, whether the Court of Appeal was not right in its approach of formulating and/or reformulating relevant issues for determination submitted by parties, after holding that the appellants issue 2 was incompetent and whether same has occasioned any bias and/or miscarriage of justice in the entire circumstance of the appeal (Grounds 1 and 9 in the identical notices of appeal).

Whether having regard to the provisions of relevant laws and judicial authorities especially Section 211 Constitution of the Federal Republic of Nigeria, the lower Court was not right when it upheld the decision of the Katsina State High Court that the EFCC as a common agency for both Federal and State High Court for offences in the Penal Code Law, Cap 96, Laws of Katsina State, with or without the Attorney General’s authorization (Grounds 2, 3, 4, 5 and 6)
3. Whether having regard to the peculiar circumstances of the case leading to the appeal, the lower Court was not right to have upheld the decision of the trial Court that the charge No. KTH/34C/2016) and the proof of evidence thereof are competent and not in breach of Section 36 (6)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (Grounds 7, 8 and 10)I shall make use of the issues as raised by the appellants for ease of reference.
ISSUE 1
Whether contrary to the resolution of the Court below, the issues formulated by the appellants in the Court below, did not arise from the grounds of appeal and the facts in the printed record, and whether such a

finding did not prejudice the mind of the said Court below when it held that appellants were not entitled to the documents requested from the prosecution until after plea had been taken and by so holding made out a new case for the respondent.

Learned counsel for the appellants submitted that grounds 1, 2 and 3 challenge the competence of the charge was filed and whilst grounds 4 and 5 highlight the constitutional imperativeness of the making available of copies of the documentary material to be relied upon in the trial by the prosecution. That the Court below was expected to adjudicate on the two issues formulated in the appellants’ amended brief and not doing so rendered the adjudication of the Court below faulty. The cases of Ayinde v. Adigun (1993) NWLR (Pt. 313) 516;
Triana Ltd v U.T.B. PLC (2009) 12 NWLR (Pt. 1155) 313 at 329 – 330, relied upon.

That the Court below showed a preference for the respondent’s issues for determination as opposed to those of the appellant’s and in doing so re-crafted the case before it leaving no option but to ascribe a judicial bias against the appellant’s case. The case of African International Bank Ltd v. Integrated Dimensional

System Ltd & Ors (2012) LPELR – 9710 (SC).

That what the lower Court did was to go against the principle which is that, it is the plaintiff’s case that determines the jurisdiction of the Court and on appeal, the equivalent of plaintiff’s claims is the Notice of Appeal and Appellants’ Brief of Argument. The case of Babale v. Abdulkadir (1993) 2 SCNJ 110.

Learned counsel for the appellants contended that it is not in the interest of a fair or speedy trial as the Court below denied the appellants of a constitutional right due to them and instead raised self-imposed hurdles of plea being taken before such a right could inure in accordance with Section 36 (6) – (b) of the 1999 Constitution. The case of Obawole v. Williams (1996) 10 NWLR (Pt. 477) 146.

In response, learned counsel for the respondent stated that there is no disputing the fact that an appellate Court has the right, indeed duty where appropriate to formulate issue(s) for the determination of an appeal particularly where it is of the opinion that the issues as formulated by counsel for the parties do not deal with the substantive issue in controversy in the appeal

provided the issue(s) is/are consistent with the ground(s) of the appeal. That the step or approach taken by the lower Court was appropriate, unassailable and cannot be faulted in law in the entire circumstance of this appeal. That it is now settled that an appellate Court may, where it deems the issues formulated for the determination of an appeal incapable of serving the interest of justice, reframe or formulated new issues for determination of the appeal. That the Court has powers to get into the meat of the matter before it and answer the questions raised not necessarily in the way and manner formulated by either of the party, but in such a fashion that it is clear that the dispute has been considered and the justice of the matter brought out and dealt with to finality. It was stated for the respondent that there is no format in so doing so long as justice is served and as far as the issues arise from the grounds of appeal. The case of Okeke v. State (2016) 7 NWLR (pt. 1512) 417 at 343; Adeniyi v. Fabiyi (1992) 5 NWLR (Pt. 242); Pius v. State (2016) 9 NWLR (Pt. 1517) 341 at 354 – 355, Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 211 etc.

It was submitted for the respondent that this Court will not set aside the judgment of the lower Court since the decision is right even if the reasons given were wrong. The cases of U.B.A v. Achoru (1990) 9 – 10 SC 115; Ibuluya v. Dikibo & Ors (2010) 18 NWLR (Pt. 1225) 627.

Learned counsel for the respondent stated that it is not correct that the lower Court raised the issue suo motu without hearing the parties thereon. He cited;
Ayinde v. Adigun (1993) NWLR (Pt. 313) 516;
Babale v. Abdulkadir (1993) 2 SCNJ 110 etc.

The appellants put forward the argument that the Court below did not utilise the issues as formulated by them even though they arose from the grounds of appeal and rather that the lower Court formulated issues with which it determined the appeal before it. I shall recast the very words of the Court below thus:
“Now, one of the most elementary principles of appellate Court practice is that an issue for determination must relate to and arise from the grounds of appeal Ebute v. Union of Nigeria Plc (2012) 3 NWLR (Pt. 1284) 254, Odusote v. Independent National Electoral Commission (2014) 17 NWLR (Pt. 1436) 255. Similarly, it is elementary that an issue

issue for determination must arise from the decision appealed against Shell Petroleum Development Company of Nigeria Ltd. v Oruambo (2012) 5 NWLR (Pt. 1294) 591. Therefore, only issues for determination which are formulated within the parameters of the grounds of appeal and stemming from the decision appealed against are competent to be ventilated- Sha v. Kwan (2000) 8 NWLR (Pt. 670) 685 and Agbakoba v. Independent National Electoral Commission (2008) 18 NWLR (Pt. 1119) 489. Counsel to the appellants indicated in their brief of arguments that the second issue formulated for determination formulated by them arose from Grounds 1, 2 and 3 of the notice of appeal. A read through the 3 grounds of the appeal as well as the Ruling appealed against shows clearly that the second issue for determination of the appellants as couched, was not formulated within the parameters of the grounds of appeal and neither did it entire (sic) stem from the decision of the lower Court. The question of whether or not “the Attorney General of Katsina State has the powers to invite EFCC (an Agency of the Federal Republic of Nigeria before the Katsina State High Court for offences allegedly

committed under the Penal Code” Law of the Katsina State which formed the core of the second issue for determination, as formulated by the counsel to the appellants, was not raised either in the motion of the appellants before the lower Court or in the written arguments of their counsel on the motion paper and neither was it touched on upon by the lower Court in the Ruling appealed against and it was not mentioned anywhere in the grounds of appeal. The second issue for determination as formulated by the appellants is thus incompetent.
The first issue for determination was distilled from Grounds 4 and 5 on the respective notices of appeal of the appellants. Again reading through the first issue for determination as formulated by the counsel to the appellants, it does not entirely emanate from the decision of the lower Court appealed against. The case canvassed by the appellants in their written addresses before the lower Court and in respect of which the lower Court made findings in the Ruling was that the non-service of all the statements made by the appellant, statements made by all the proposed witnesses, Police Investigating Reports, statement

of Bank Accounts and every other document relevant to the prosecution of this matter as part of the proofs of evidence rendered the proof of service incomplete, inchoate and in breach of the provisions of Section 36(6) of the 1999 Constitution. The question before the lower Court was “non-service of the documents as part of the proof of evidence” and not “non-availability” of the documents as stated in first issue for determination formulated by the counsel to the appellants and there is a world of difference between the two phrases.” (underlining for emphasis).
The point has to be made that in formulating issues of its own for the determination of the appeal, the Court of Appeal was within its powers to do so as long as the issues were consistent or arose from the grounds of appeal filed by the appellant. Also the appellate Court was free if it chose to for ease of handling the task before it to adopt the issues as framed either by the appellant or the respondent or even use any of the issues from either side suitable for its purpose, again such issues must have come from the grounds of appeal and not outside.
It is in the observance of the principle which

leads the Court in the pursuit of the proper administration of justice that the Court would do either of those things above pertaining to the issues or questions to be answered in the appeal. A look at grounds 1, 3 and 4 of the appellant’s motion on notice, the trial Court’s Ruling and the grounds of the notice of appeal would show the reasons for the appeal Court’s jettisoning of the issues as raised by the appellant and going further to substitute its own which that Court considered apt and appropriate. What I am trying to say is that an appellate Court is not shackled or bound to use the issue as raised only by the appellant or any party if in doing so, the Court would risk losing its way, rather the Court should use the issues that would guide it and if not to set the tone with questions crafted by itself as a roadmap to answer the posers that are to be solved. The condition in all this is that the issues stem from the grounds of the appeal and the interest of justice which is the focal point in it all and there is no format. See:
Abiru v. State (2011) 17 NWLR (Pt. 1275) 1 at 17 – 18,
Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139;

Aduku v.Adejoh (1994) 5 NWLR (Pt. 346) 582;
Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 452) 12;
Okeke v. State (2016) 7 NWLR (Pt. 1512) 417 at 434.
From what is seen in the record, particularly the decision of the Court of Appeal it is easy to see that the Court below fully understood and appreciated the complaint of the appellants as it could see from the issues the appellants crafted from Grounds 1, 2 and 3 while Issue 2 stemmed from grounds 4 and 5 of the notice of appeal and that full knowledge of the lower Court is evident from an excerpt of the judgment thus:
“The contention of the appellants under this issue for determination are in three phases (i) that by the concept of Federalism provided for in the 1999 Constitution of Nigeria (as amended), the economic and Financial Crimes Commission has no power to initiate and commence criminal prosecution in the Katsina State High Court in respect of offences committed under the Penal Code Law of Katsina State; (ii) that the fiat given to the Economic and Financial Crimes Commission by the Attorney General of Katsina State to prosecute the appellants under the Penal Code Law of Katsina State was unconstitutional

and amounted to an abdication of sovereignty by the Katsina State Government, and (iii) that by the fiat, the Attorney General of Katsina State constituted the Economic and Financial Crimes Commission into an agent of Katsina State and that the criminal proceedings ought to have been commenced in the name of Katsina State and not in the name of the Federal Republic of Nigeria.”
And further held thus:
“Now, as stated earlier in this judgment, the contention of the appellants before the lower Court and in respect of which the lower Court made findings in the Rulings was that the non-service of all the statements made by the appellants, statements made by all the proposed witnesses, Police Investigation Reports, Statements of bank Accounts and every other documents relevant to the prosecution of this matter as part of the proof of service rendered the proof of service incomplete, inchoate and in breach of the provisions of Section 36(6) of the 1999 Constitution. The issue was not whether the appellants were “entitled” to be given those processes as part of the “facilities” necessary for their defence.”

The slant of the arguments of the appellants is that the Court below was biased when it by-passed the issues as formulated by the appellants and framed new questions answering them in favour of the respondent as shown in part of the judgment above and thereby displayed some bias against the appellants. That angle portrayed by the appellants is difficult to accept in that the Court below was free to do what it did since in utilizing the Court’s crafted issues, the Court had its sight on the grounds of appeal and resolved the concerns of the appellants as to whether the Katsina State, Attorney General could validly issue his fiat to anyone or prosecuting agency outside Katsina State to prosecute a criminal matter pursuant to the Penal Code applicable in Katsina State.
The Court of Appeal answered in the affirmative and that in doing so the concept of Federalism provided for in the 1999 Constitution of Nigeria (as amended) was not infracted and I agree with that position. Again that the criminal proceedings were commenced in the name of the Federal Republic of Nigeria and not Katsina State is not an argument that could be sold, because Katsina State is part of the Federation of Nigeria and so

whether in the name of Katsina State or the Republic of Nigeria or EFCC or the Commissioner of Police, the validity of the charge would not be impugned. The deciding factor is that the matter being crimes allegedly committed against Katsina State, it is that State through the instrumentality of the Chief Law Officer that is its Attorney General has set the ball rolling and in this instance, the Attorney General has done the extra by being at the side of the Economic and Financial Crimes Commission (EFCC) in initiating and prosecuting the matter. Therefore, the argument that the EFCC is an interloper and entering into the domain of a federating unit without right is not one that can be sustained in the prevailing circumstances where the State Attorney General has within powers directed the EFCC to prosecute.
The allegation of bias touted by the appellant as the reason for the Court below doing what it did in reformulating the issues is not borne out of the record. The caution of this Court in the case of Adebesin v. State (2014) 9 NWLR (pt. 1413) 609 per Ngwuta JSC is applicable here and it is thus:

“My Lords, it has become fashionable for a certain category of learned counsel to rake up unfounded claims of bias against trial Court and the Court below, in some cases in more vocal terms than the appellant herein. These allegations are serious and reflect adversely on the adversary process of our jurisprudence. They should not be made unless counsel making them has facts in or out of the records to substantiate same. To say that a Judge is biased in the resolution of dispute before him is no less than saying that the Judge is in breach of the sacred, solemn and judicial oath administered on every Judge to dispense justice without fear or favour, affection or ill-will to all manner of men. We all took, and are bound by, the solemn oath and a false and unsubstantiated allegation of breach of the said oath is no less a serious matter than proven of breach of same.”
To be said is that assuming that the Court below went through the wrong route in arriving at its decision and that is not the case here so long as the conclusion is correct, that decision will not be set aside since the decision is correct. See: U.B.A v. Achoru (1990) 9 – 10 SC 115; Ibuluya v. Dikibo & Ors (2010) 18 NWLR (Pt. 1225) 627.

The appellants had sought from the trial Court for it to direct the prosecutor to furnish the defence with all the documents inclusive of all the statements made by the defendants, statements made by all the witnesses, Police Investigating Reports, Statements of Bank Accounts in compliance with Section 84 of the Evidence Act, and every other document relevant to the prosecution of this matter.
The respondent’s reaction to that request is that the prayer was premature, the plea having not been taken.
The trial Court refused to grant the prayer and on appeal the Court below went along the line towed by the Court of first instance hence the ventilation of the grievance at this stage citing bias on the part of the Court below for its decision.
I agree with the conclusion of the two Courts below, that Section 36(6) of the 1999 Constitution was not infracted. I say so because the non-service of all the statements made by all the proposed witnesses, Police Investigating Reports, Statements of Bank Accounts and every other documents rendered the proof of service incomplete, inchoate was not in breach of the

provisions of Section 36(6) of the 1999 Constitution as the plea has not been taken. It is unfounded and misleading that the Court below made out a case for the respondent as what that Court did, the parties or none of them was kept in the dark and unheard. I rely on the cases of A. C. B. Ltd v. Integrated Dimensional System Ltd & Ors (2012) LPELR 9710 (SC). Ayinde v. Adigun (1993) NWLR (Pt. 313) 516; Western Steel Works v. Iron and Steel Workers Union (1987) 1 NWLR (Pt. 49) 28; Obawole v. Williams (1996) 10. NWLR (Pt. 477) 146, which have shown the way and that the appellants cited them in vain since they do not avail them.

In conclusion the issue is resolved against the appellants.

ISSUE 2
Whether the Kaduna Division of the Court of Appeal was right when it affirmed the decision of the Katsina High Court that the Attorney – General of Katsina State has the powers to invite EFCC (An agency of the Federal Government) to prosecute the appellants in the name of the Federal Republic of Nigeria before the Katsina State High Court for offences allegedly committed under the Penal Code Cap 96 Laws of Katsina State.

Learned counsel for the appellants contended that the

delegation to EFCC by the Attorney General of Katsina State can only be construed as being tantamount to Katsina State surrendering its independence or sovereignty to the Federal Republic of Nigeria, a situation anathema to the Federal System of Government. He referred to Section 4(4), (5), (6) and (7) CFRN 1999; NITEL PLC v. Awala (2002) 3 NWLR (pt. 753) 1 at 13 (CA), Section 211 CFRN 1999.

That there is a need for the Supreme Court to depart from its decision inNyame v. FRN (2010) 7 NWLR (pt. 1193) 394.
The case of Bucknor-Macleans v. Inlaks Ltd (1980) 8 – 11 SC 1; Tewogbade v. Obadina (1994) 4 SCNJ 161.

Learned counsel for the appellant submitted that the Attorney General of Katsina State expressly delegated his powers of prosecuting his state offences under the laws of Katsina State to Legal Department of EFCC and so EFCC brought the charges under the laws of Katsina State in the name of the Federal Republic of Nigeria which is out of tune with the authority given to it. He cited Yabatech v. M. C. & D. Ltd (2014) 3 NWLR (pt. 1395) 616 at 659; Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129.

That the names of proper parties before a Court of

law is jurisdictional and where the proper parties are not before the Court as in the instant case, the Court will lack the vires to adjudicate on the matter. He referred to:
CBN v. S.A.P. (Nig.) Ltd (2005) 3 NWLR (Pt.911) 152 at 177; Amadi v. FRN (2008) 18 NWLR (Pt. 1119) 259 etc.

Learned Senior Counsel for the respondent submitted that by the provisions of Section 211 (1) CFRN 1999 the Attorney General’s power of public prosecution is not exclusive and so anybody or authority is competent to initiate criminal proceedings against an offender, once he is granted the fact to do so which includes institutions such as EFCC. He relied on Akingbola v. FRN (2012) 9 NWLR (Pt. 1306) 511 at 530 – 533.

That the issue of proper parties not being before the Court does not arise as Katsina State is part of the Federal Republic of Nigeria and so can use that name and with any prosecuting body or person to implement its criminal process. He cited FRN v. Nwosu (2016) 17 NWLR (Pt. 1541) 226; FRN v. Iweka (2013) 3 NWLR (Pt. 1341) 285; A. G. Rivers State v. A. G. Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31.

That there is no foundation for the Supreme Court to depart from its earlier decisions in Dariye v. FRN (supra) and Nyame v. FRN (supra)

The grouse of the appellants herein is that the EFCC cannot prosecute a matter emanating from Katsina State in the name of the Federal Republic of Nigeria. The two Courts below decided that the EFCC is competent and empowered to file Charge No. KTH/34C/2016 against the appellants before the Katsina State High Court.
The facts leading to the present situation are that the Attorney General of Katsina State gave on Fiat to the EFCC to prosecute offences under the laws of Katsina State. The Attorney General went the extra mile to be in Court in all the proceedings at the trial Court and Court below and even before the Supreme Court at this instance. The point being pushed by the appellants is that the EFCC cannot prosecute a Katsina State offence since EFCC is a federal agency and under the concept of federalism would be seen as interloping into a federating unit without vires. That argument in my humble view is for the Katsina State Attorney General to push forward and not for any other person or even the

Court as the powers of the Attorney General pursuant to Section 211 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (CFRN) are not subject to review by any Court of law and there is a surfeit of judicial authorities in that regard such as State v. Ilori (1983) 14 NSCC 69 at 75; George v. FRN(2011) 10 NWLR (Pt. 1254) 1 at 68.
What has transpired in this instance with the Katsina State Attorney General’s granting of the Fiat to the EFCC and goes further to attend Court with the prosecution underscores the fact that the Fiat was not mistakenly issued and that the State of Katsina was fully backing the prosecution of the appellants pursuant to its State criminal proceedings. Again, the powers of the Attorney General within Section 211(1) (b) CFRN 1999 is not narrowed to only individual legal practitioners and not institutions such as the EFCC. In response to the concerns of the appellants, the lower Court stated as follows:
What the aggregation of the above mean is that the Legal Prosecution Unit of the Economic and Financial Crimes Commissions, in the exercise of its power of prosecution, is empowered to file information against

offenders for offences committed under the provisions of the Criminal Code or Penal Code. And since offences under the provisions of the Penal Code can only be prosecuted in the State High Court, it follows that the Legal and Prosecution unit of the Economic and Financial Crimes Commission can file Information in the State High Court to prosecute offences under Criminal Code or Penal Code. This is the position as adumbrated by the Supreme Court and by this Court in plethora of case –
Amadi v. Federal Republic of Nigeria (2008) 18 NWLR (1119) 259; Ahmed v Federal Republic of Nigeria (2009) 12 NWLR (Pt. 1159) 536; Nyame v FRN (2010) 7 NWLR (Pt. 1193) 344: Akingbola v FRN (2012) 9 NWLR (Pt. 1306) 511 at 511; Oluese v FRN (2013) LPELR 22016 (CA); Jinadu v FRN (2015) LPELR- 24381) (CA); Dariye v FRN (2015) 10 NWLR (Pt. 1467) 325; Oleksiy v FRN (2017) LPELR -CA/L/981EC/2015, Joel v FRN (2017) (2017) LPELR – 42323 (CA); Bryan v FRN (2017) LPELR – 42304 (CA);
Ezekiel v Attorney General of the Federation (2017) LPELR – 41908 (SC)”…. Similarly, provisions concerning the Independent Corrupt Practices Commission were

interpreted by the Supreme Court in Attorney General, Ondo State v. Attorney General, Federation (2002) 9 NWLR (Pt. 772) 222 and the Court stated that the Independent Corrupt Practices Commission could institute criminal proceedings for prosecution of offences in any State of the Federation.”
The Court below went on thus:
“Further, the argument that the Criminal Procedure Code Law of Katsina State does not provide for or accommodate the power of the Economic and Financial Crimes Commission to institute criminal proceedings in the High Court of Katsina State by filing of Information cannot change this position. This is because it will mean that the Criminal Procedure Code Law of Katsina State is in obvious conflict with the Economic and Financial Crimes Commission (Establishment) Act. On the hierarchy of laws on Nigeria, Kalgo JSC stated in Attorney General, Abia State v. Attorney General, Federation (2002) 6 NWLR (Pt. 763) 264 at pages 479- 480 that:
The Constitution is what is called the grundnorm and the fundamental law of the land. All other legislations in the land take their hierarchy from the provisions of the Constitution. By the provisions of the Constitution,

the laws made by the National Assembly come next to the Constitution, followed by those made by the House of Assembly of a State.
The Economic and Financial Crimes Commission (Establishment) Act was passed by the National Assembly and it must thus take procedure over the Criminal Procedure Law of Katsina State. Thus, whichever way it is looked at, the Economic and Financial Crimes Commission possesses the power to institute the present criminal proceedings against the appellants in the High Court of Katsina State by filing of Information”.
Continuing further, the Court below stated:
“It has been pointed out that the provisions of the Act impinge on the cardinal principle of federalism, namely, the requirement of equality and autonomy of the State Government and non-interference with the functions of State Government. This is true, but as seen above, both the Federal and State government share the power to legislate in order to abolish corruption and abuse of office. If this is a breach of the principle of federalism, then I am afraid, it is the Constitution that makes the provisions that have facilitated the breach of the principle.

As far as the aberration is supported by the provision of the Constitution, I think it cannot rightly be argued that an illegality has occurred by the failure of the Constitution to adhere to the cardinal principles which are at best ideals to follow or guidance for an statues according to its peculiar circumstance. Sections 15(5) of the Constitution is intended to instigate the Federal and State governments to embark on, and wage, total war on corruption that has become endemic in this country. As Shakespeare would put it, desperate malady deserves desperate remedy. I am sure, this is what has informed the enactment of this constitutional provision that is apparently an aberration on the ideals of federalism” (Underlining for emphasis).
By the provisions of Section 211(1) of the 1999 Constitution as amended, the Attorney – General’s power of public prosecution is not exclusive. The “any other authority or person” in Subsection (1) can institute and undertake criminal proceedings. Also the office of the Attorney General does not have the monopoly of prosecution, in any Court and decide whether to go on with it or not. Therefore anybody or

authority is competent to initiate criminal proceedings against an offender, once he is granted the fiat to do so. See FRN v. Osahon (2006) 5 NWLR (Pt. 973) 361 at 405 per Belgore JSC (as he then was); Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) 787; Comptroller of Prisons v. Adekanye (2002) 15 NWLR (Pt. 790) 318.
I shall quote for effect the said Section 211(1) CFRN
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 a Court martial in respect of any offence created by or under any Law of the House of Assembly.
(b) To take over and continue any such criminal proceedings that may have been instituted by any other authority or person, and
(c) To discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
For emphasis, I shall refer to a recent case of this Court which has settled a lot of the worries of the appellants and that is the case of Kalu v. FRN (2012) LPELR – 9287 where this Court held thus:

“I have not seen, nor have I been told, what substantial miscarriage of justice the appellants have suffered by the EFCC prosecuting them for money laundering offences under the name of the “Federal Republic of Nigeria”. Let me repeat that Section 15(5) of the 1999 Constitution obligates the Federal Republic of Nigeria, as a State, “to abolish corrupt practices and abuse of power”. The enactment of the EFCC Act and the Money laundering (Prohibition) Act are all in a bid to discharge not only this constitutional obligation, but also the Country’s International obligation in the global war against corruption, terrorism, drugs and other cross-border crimes. The appellants, in view of the pronouncement of Lokulo – Sodipe JCA in E.O. Wike v. FRN (No.CA/A/85/C/2009 of 17th July, 2009), cannot possibly maintain their argument that since the proper complainants were not before the lower Court and that in the absence of proper complainants the lower Court lacks jurisdiction to try them. I hereby adopt the following passage in the opinion of His Lordship in Wike v. FRN (supra) to dismiss the submission”.
Coming back to the question, my answer is that the

Court below was right in deciding in affirming the decision of the Katsina State High Court that the Attorney General of that State has the powers to invite EFCC, an agency of the federal government to prosecute the appellants firstly. Also the EFCC so empowered was at liberty to bring the charge and prosecute in the name of the Federal Republic of Nigeria and before a Katsina State High Court for offences allegedly committed under the Penal Code of Katsina State.
This issue should not be confused as the EFCC did not charge into Katsina State or invaded the State and by its own motion start the initiation and prosecution of erstwhile State functionaries of Katsina State without going through the State Authority in a Federal system such as we operate by law under the 1999 Constitution of the federation.

ISSUE 3
Whether the Kaduna Division of the Court of Appeal was right when it affirmed the decision of the Katsina State High Court that the non-availability of all the documents i.e., statements of accused persons and all witnesses, investigation reports, bank statements and other documents by the prosecution to the accused persons did not breach the provisions of

Section 36 – (6) (b) of the 1999 Constitution.

Learned Senior Advocate for the appellants stated that the balance the Courts strive to maintain, particularly in criminal trial is one of equal opportunity. That this Court cannot answer affirmatively that there is a parity of opportunity for both parties in this case where the prosecution has been allowed to play a hide and seek game at the disadvantage to the appellants. He relied on Mohammed v. Kano N. A. (1968) 1 ALL NLR 412 at 413. That the appellants are entitled to the documentary materials, He cited Okoye v. Commissioner of Police (2015) LPELR 24675 (SC); Akabogu v. The State (2016) LPELR – 40929, Gaji v. State (1975) 5 SC 55; Kalu v. FRN (2014) 1 NWLR (Pt. 1389) 479 at 528 -547.

For the respondent, learned counsel contended that the Court below was right when it affirmed the decision of the trial Court that there were enough facilities available for the defence to defend themselves and that the proof of evidence was competent and not in breach of Section 36(6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He relied on FRN v. Wabara (2014) ALL FWLR (Pt. 714) 76 at 93 – 97.

That the respondent supplied the proofs of evidence to the charge and the appellants understood the complaint against them and identified the offences against them as being offences against the law of Katsina State and called them by their names. Learned counsel further submitted that the appellants are reading into the law what has not been provided in it and so cannot be sustained. He cited Ifezue v. Mbadugha (1984) 5 SC 79; Obeta v. Okpe (1996) 9 NWLR (pt. 473) 401; Criminal Procedure Code Cap 37 Laws of Katsina State 1991 etc.

That the rule of fair hearing is not operated in vacuo and so the appellants cannot lawfully resort to Section 36 CFRN 1999 to demand for documents not within the ambit of the Katsina State CPC Law and prior to arraignment. He stated that a summary of evidence in form of proof of evidence is all that is required. He cited Akwuobi v. The State (2017) 2 NWLR (Pt. 1550) 421 at 442 – 443.

It is to be noted that the respondent as prosecution served on the appellants’ proofs of evidence which contained the summaries of statement of the prospective witnesses and had gone on further to set

out all the names of the witnesses they proposed to call in proving the allegations against the appellants, in my humble view the stipulations under Section 185 (a) of the Criminal Procedure Code (CPC) Laws of Katsina State 1991 had been met. In the provisions of that law the statement of the accused person is not one of the materials to be filed along with the charge. Also the statements of witnesses are pieces of evidence which will come up at the trial and so asking to be given the statements of the accused persons before their pleas are taken before trial is not part of the provisions of the CPC. The appellants therefore labour in vain to overflog the issue as it would serve no useful purpose. See FRN v. Wabara (2013) 5 NWLR (Pt. 1347) 331 at 350; Ogudo v. State (2011) 18 NWLR (Pt. 1278) 1 at 52 – 53; U.N.T.H.B v. Nnoli (1994) 8 NWLR 376 at 400-401, NNPC v. Famfa Oil Ltd (2012) 17 NWLR (Pt. 1328) 148 at 195.

Clearly the issue cannot be favourably resolved for appellants as they are asking for what the law and practice have not provided.

All the three issues settled against the appellants and from the well reasoned lead judgment I too see no merit in this appeal which I dismiss.

I abide by the consequential orders as made.

MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in draft the lead judgment of my learned brother SIDI, DAUDA BAGE JSC just delivered, I agree with his lordship that the appeal being bereft of merit be dismissed.

The two germane issues the appeal raises have long been resolved, to the contrary of what learned appellants’ counsel postulates, by this Court. Yes, as persistently held by this Court, given the clear words of Section 36(6) (b) of the 1999 Constitution as amended, the appellants are manifestly entitled to such “facilities”, in addition to adequate time, they may require for the preparation of their defence. This Court has maintained that any “material” the respondent uses and or is relevant in the prosecution or defence of the appellants who are being arraigned at the trial Court should be made available to the appellants to enable them adequately prepare their defence. See Layonu V. State (1967) 1 ALL NLR 198 and Udo v. State (1988) 1 NSCC (pt. 19) 1163 at 1172.
The essence of the principle is that both the respondent herein and the appellants they prosecute

must enjoy equal opportunity in the conduct of their respective cases. Under no circumstances, this Court insists, should the prosecution enjoy sole access to the evidence on which basis the trial of an accused person is pursued. Allowing the respondent undue access to the materials that provide the evidence the Court is urged to convict the appellants, learned appellants’ counsel would be right, will constitute unpardonable violation of Section 36(6) (b) of the Constitution. In Okoye & Ors v. Commissioner of Police (2015) 4-5 SC (pt. 1) 101 this Court per Akaahs JSC restated the principle thus: –
“The moment an accused is facing a charge, his personal liberty is at stake and before that liberty is taken away, he must be afforded every opportunity to defend himself ……
Once he becomes aware that he has a charge hanging over his neck for an infraction of the law and makes a request either orally or in writing for any facilities to prepare for his defence, the Court must accede to his request and the prosecution has to comply….” (Underlining mine for emphasis).
In the case at hand the appellants, having failed to

specify what materials the respondent refused to supply them following their request and the trial Court’s order thereon, cannot invoke 36(6) (b) of the 1999 Constitution as amended to forestall their trial. See Ogboh & Anor v. FRN (2002) LPELR-2285.

Appellants’ contention under their 2nd issue is that the Katsina State Attorney General cannot delegate the powers of instituting criminal proceedings against them to the respondent who is not an officer of his department. I agree with learned respondent’s counsel that the correct position of the law is contrary to what the appellants assert. A great number of the decisions of this Court insist that by virtue of Section 211(1) of the 1999 Constitution as amended the Attorney General of a State is empowered to institute criminal proceedings in respect of an offence under any law of the House of Assembly; that the power may be exercised by him in person or through the officers of his department; that the Attorney General is further empowered to take over and continue any criminal proceedings instituted by any other authority or persons and, at any stage before judgment is delivered,

discontinue such criminal proceedings instituted by him or any other person or authority; that the use of the word “may” in Section 211(2) of the Constitution shows clearly that in delegating his powers, to institute or undertake criminal proceedings, the Attorney General is not restricted to only officers of his department. The EFCC, learned respondent’s counsel is again right, for this Court has so held, is one such authority the 1999 Constitution in Section 211 empower to institute and undertake criminal proceedings in respect of acts which though provided for by the State House of Assembly constitute Economic and Financial Crimes as provided for under Section 5 of the Economic and Financial Crimes Commission (Establishment) Act. See Osahon v. FRN (2006) 2 SC (Pt 11) 1, Amadi v. FRN (2008) 18 NWLR (Pt. 1119) 259 at 275, 276, Nyame V. FRN (2010) 7 NWLR (Pt 1193) 344 at 403; that, lastly, the Attorney General’s Powers under Section 211 of the 1999 Constitution the appellants challenge, through to this appeal, cannot be questioned by or through the Court. See Rabiu v. State (1981) 2 NCLR 293, State v. Ilori (1983) 1 SCNLR 94, Ibrahim v. State (1986) NWLR (pt. 18) 650 and Amadi V. FRN (supra).

It is for the foregoing and the fuller reasons of my learned brother SIDI DAUDA BAGE JSC that in adjudging this appeal devoid of merit I dismiss same. I abide by the consequential orders effected in the lead judgment.

CLARA BATA OGUNBIYI, J.S.C.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother Bage, JSC. I agree that the judgment of the lower Court has stood the test of time and should be endorsed.

The facts of the case and the two issues raised from the grounds of appeal are clearly spelt out in the lead judgment.

The matter in this appeal is interlocutory and thus in the nature of a preliminary objection. The justice of this case would best be determined when the matter proceeds to trial with evidence having been taken and all material facts placed before the Court.

It is unfortunate to say that objections raised would only delay the quick disposal of this case which would not be in the interest of all parties. As rightly submitted by the learned counsel for the respondent, the two lower Courts are not in breach of Section 36 (6) (a) and (b) of the Constitution wrongly contemplated by the

appellants’ counsel. It is premature to conceive that the appellants herein were neither given a fair hearing, nor were they refused proper information or adequate time and facilities for the preparation of their defence.

My learned brother has dealt adequately with the issues raised.

I adopt his judgment as mine and I also dismiss the appeal in like terms.

AMINA ADAMU AUGIE, J.S.C.: I have had a preview of the judgment delivered by my learned brother – Bage, JSC. I, too, feel that this appeal lacks merit and is accordingly dismissed.

No costs awarded.

EJEMBI EKO, J.S.C.: The Appellants are being prosecuted for offences under the Penal Code Law of Katsina State at the High Court of Katsina State. The Attorney-General of Katsina State issued a fiat authorising or empowering the Economic and Financial Crimes Commission (EFCC) to institute the criminal proceedings, by way of information accompanied by proofs of evidence, against the Appellants. The said High Court granted leave to the prosecutors to proceed on the information against the Appellants.

Upon granting leave, the High Court summoned the Appellants to appear before it for their arraignment and pleas.

After the service of the summons on them, the Appellants entered appearance under protest. They queried the information on diverse grounds, including:
i. That the Proof of evidence did not comply with Section 36(6) (b) of the Constitution – they, the accused persons having not been furnished with “adequate facilities for the preparation of their defence”.
ii. That the EFCC is prosecuting them in the name of the Federal Republic of Nigeria, notwithstanding that the fiat was issued by the Attorney-General of Katsina State pursuant to his powers under Section 211 of the Constitution 1999, as amended, and that the grounds that EFCC is not an officer in the Attorney-Generals office.

Usually an application for leave to prefer charge in the High Court, under the Criminal Procedure Code in Katsina State, is brought under Section 185(b) of the Criminal Procedure Code Law and Criminal Code (Application for Leave to prefer Charge in the High Court) Rules made thereunder. The extant Criminal

Procedure (Application for Leave to prefer a charge in the High Court) Rules, 1970 mandatorily requires that the application for leave to prefer a charge shall state the charge in respect of which leave is sought. The Appellants do not complain about this. The grouse of the Appellants is that the mandatory proofs of evidence they are entitled to does not contain “adequate facilities” or materials they would need to prepare adequately for their defence. Rule 3 (2) of the Criminal Procedure (Application for Leave to prefer a charge in the High Court) Rules provides, in mandatory terms that “there shall accompany the application proofs of the evidence of the witnesses whom it is proposed to call in support of the charge”, and that the proofs of evidence shall be accompanied by the prosecutor’s statement of undertaking “that the evidence shown in the proofs of evidence will be evidence which will be available at the trial” and that the case disclosed by the proofs is a true case.
Proofs of evidence, in criminal proceedings, are what pleadings and front loading of evidence are in civil trials. The essence of both is to enable the parties know not only the case they are to meet at the

trial but also to be enabled to adequately prepare to counter the oral and documentary evidence by which the case is to be proved. They ensure, as K.M.O. Kekere-Ekun, JCA, (as he then was) stated in ADEBISI ADEGBUYI & ANOR. V. HON. RAMONI OLALEKAN MUSTAPHA & ORS. (2010) LPELR – 3600 (CA), that there is no trial by ambush.
Trial by ambush is what the framers of the Constitution detested and provided against when they provide in Section 36(6) (b) that –
Every person who is charged with a criminal offence shall be entitled to be given adequate time and facilities for the preparation of his defence.
This is a basic fundamental right every person who is charged with a criminal offence is entitled to. That is, every person charged with a criminal offence is entitled to be given adequate facilities for the preparation of his defence. Charge as a noun, means a formal accusation of an offence. As a verb “charge” means to formally accuse a person of an offence. See Black’s Law Dictionary 9th ed.
The provisions of Section 36(6)(b) of the Constitution are unambiguous. They are therefore entitled to be given their ordinary plain and simple meaning without

venturing to import thereto any extraneous matters that may lead to circumventing or giving the provisions an entirely different interpretation from what the lawmaker intended them to be: UNIPETROL v. E.S.B.I.R. (2006) ALL FWLR (pt. 317) 413 at 423. The initiation of the criminal proceedings against the Appellants invariably leads to the invocation of the jurisdiction of the criminal Court to determine their civil rights, particularly the right to their personal liberty, guaranteed by Sections 36(1) and 35 of the Constitution. The judex therefore shall be guided by the wisdom of this Court expressed in RABIU v. THE STATE (1980) 8 – 11 SC 130; ONYEMA v. OPUTA (1987) 6 SC 362: Firstly, that the Constitution should be given broad and liberal construction to promote its purpose; secondly; and that narrow and conservative construction should be avoided, and also that the Constitution should be construed to promote good government and people’s welfare. These are ever living words against trial by ambush.
The right guaranteed by Section 36(6)(b) of the Constitution applies to every person charged with a criminal offence: OGBOH & ANOR v.F.R.N. (2002)

4 S.C. (pt. II) 106; (2002) 10 NWLR (pt.774) 21. Section 185(b) of the CPC and Criminal procedure (Application for Leave to Prefer a Charge in the High Court) Rules, 1970 have been enacted to further give effect to the right guaranteed, by Section 36(6)(b) of the Constitution, to every person charged with a criminal offence. This Constitutional right of the accused person imposes a duty on his accuser to furnish him with all the facilities, particularly the evidential materials his accuser intends to use against him at his trial, from the moment he is formally accused of a criminal offence. He has to have these facilities before he is called upon to take his plea to the charge. That enables him to decide, in the first place, how he should plead to the charge. The proofs of evidence with the front loaded evidence of the witnesses and documents the prosecutor intends to call at the trial prima facie constitute “adequate facilities” the person charged with a criminal offence would have for the preparation of his defence. The Prosecutor, cannot deny the accused person these facilities, and if he does deny the accused person this right the trial no

doubt will be vitiated.
The right guaranteed to the person charged with a criminal offence, and the duty imposed on his accuser, by Section 36(6)(b) of the Constitution and not merely fanciful. In ORISAKWE V. GOVERNOR, IMO STATE (1982) 3 NCLR 743 at 755 OPUTA, CJ (as he then was) stated that if the right of fair hearing under Section 33(1) of the 1979 Constitution, in pari materia with Section 36(1) of the 1999 Constitution, and the rule of natural justice is to be of any real right, it must carry with it a corresponding and equal right in the accused person to know the case his accuser has against him. This view was cited with approval in OKOYE & ORS. V. COMMISSIONER OF POLICE (2015) 4 – 5 SC (pt. 1) 101.
This Court considered the provisions of Section 33(6)(b) of the 1979 Constitution, in pari materia with Section 36(6)(b) of the 1999 Constitution in UDO v. THE STATE (1988) 6 SC 346 and declared that it is a provision of “equal opportunities for both the prosecution and the defence”. Commenting on this equality of opportunities between the prosecution and the defence, under Section 36(6)(b) of the 1999 Constitution, K.B. Aka’ahs, JSC, stated

in OKOYE V. COMMISSIONER OF POLICE (supra) that the prosecutor, therefore, will not be allowed to have sole access to the evidence, and that “in a situation where the Accused person does not know the case he will meet, while the prosecution knows everything concerning the case against accused person ahead of time amounts to nothing less than procedural inequality which is a gross violation of the principle of fair hearing or fair trial” tantamounting to violation of the provisions of Section 36(6)(b) of the 1999 Constitution. This is what the appellants herein are saying, and I agree with them.

I agree with the Appellants that they are entitled, having been formally accused of criminal offences, to be given adequate facilities, in the proofs of evidence, for the preparation of their defence. Accordingly, the Respondent as the Prosecutor, is hereby ordered or directed to furnish to the Appellants, each, proofs of evidence comprising statements of all witnesses and documents which are proposed to be called in support of the charges(s) preferred against the Appellants, as the accused Person.

The Attorney-General of Katsina State, in exercise of

his powers under Section 211 of the Constitution gave the EFCC the fiat to prosecute the Appellants under the Penal Code Law of Katsina State. Upon a careful perusal of the Provisions of Section 211(1)(b) & (c) of the Constitution, it appears that the Constitution contemplates also the right of any other authority or person, not just the Attorney-General, to initiate criminal proceedings. Thus initiation of criminal proceedings for an offence is not an inclusive prerogative of the Attorney-General. However, the power to take over and continue or discontinue such prosecution remains exclusive to the Attorney-General.
The peculiar facts of this case, including his issuance of fiat to the EFCC, an investigating and prosecuting authority created by an Act of the National Assembly, suggests that the proceedings against the Appellants were initiated at the instance of, and on the authority of, the Attorney-General of Katsina State. His physical presence in the prosecuting team clearly removes any doubt that he authorised the proceedings the subject of this appeal. The Appellants cannot say that they do not know who their accuser(s) are.

The main grouse of the Appellants under this issue is that if EFCC is proceeding against them on the authority of the fiat given to it by the Attorney-General of Katsina State then it should prosecute them in the name of the donor of the power or fiat. That is, in the name of either Attorney-General of Katsina State, of Katsina State. They tend to hold the view that proceeding against them in the name: FEDERAL REPUBLIC OF NIGERIA, vitiates the proceedings against them. The Appellants, like the plaintiffs in A.G. LAGOS STATE V. A.G. FEDERATION (2014) 9 NWLR (pt.1412) 217, hold “the mistaken idea that the Federal Government of Nigeria is synonymous with the Federation or Federal Republic of Nigeria”. This point was laid to rest in A-G, LAGOS STATE v. A.G. FEDERATION (supra) at page 280 where Ngwuta, JSC, clarifies the point thus –
“The Federal Republic of Nigeria (or the Federation) is the repository of the sovereignty of the people of Nigeria whereas the Federal or State Governments, in contradistinction, are donees of the powers and authority of the people.”
In other words, the Federation of Nigeria, or the Federal Republic of Nigeria, is distinct and separate from the

Federal Government of Nigeria which often, is a product of periodic elections: A.G. KANO STATE V. A.G. FEDERATION (2007) 6 NWLR (pt.1029) 164.
In NYAME v. F.R.N. (2010) 7 NWLR (pt.1193) 344 (SC), at page 405, it was held that EFCC –
Is the co-ordinating agency for the enforcement of the provisions of any other law or regulation on economic and financial crimes, including the Criminal Code and the Penal Code. The Commission has powers under Section 13(2) of the (enabling) Act to prosecute offences so long as they are they are financial crimes.
In the co-operative federalism practised in Nigeria the EFCC is a common agency empowered to investigate and prosecute offenders for both the Federal and State economic and financial crimes, and as such it qualifies as any other authority or person empowered by Section 211 (1)(b) of the Constitution to institute or initiate criminal proceedings: AMADI v. FRN (2008) LPELR – 441 (SC).
In the AMADI case (supra) the EFCC initiated the trial of the appellant for offences under Advance Fee Fraud and Other Related Offences Act, 2004 (an Act of the National Assembly), and offences under the Criminal

Code Law of Lagos State. The contention that EFCC, an agency created by an Act of the National Assembly, could not competently prosecute state offences relating to economic and financial crimes was dismissed. See also OSAHON v. FRN (2006) 2 SC (pt. II) 1; (2006) 2 NWLR (pt.975) 361.
I wish to state finally, that the fiat issued by the Attorney-General of Katsina State is not irrevocable. He, being the donor of the power, reserves the right to resume or revoke the power he had delegated to the EFCC to prosecute the Appellants on his behalf. Section 211 of the Constitution is very clear and unequivocal on that residual power of the Attorney-General of the State.
I read in draft the judgment delivered by S.D. BAGE, JSC, in this appeal. I agree that the Attorney-General of Katsina State has rightly delegated his prosecutorial powers to EFCC to prosecute the Appellants herein by the fiat he issued to the EFCC. My position on the rights of the Appellants under Section 36(6)(b) of the Constitution is that the Appellants are entitled to be given proofs of evidence containing the statements of all witnesses, and the documents the prosecutor intends to call evidence on in their trial.

PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in advance the judgment just delivered by my learned brother BAGE, JSC and I agree with the reasoning contained therein and conclusion arrived thereat. Section 211(1)(a) of the Constitution of the Federal Republic of Nigeria provides that the Attorney-General of a State shall have power to institute and undertake criminal proceedings against any person before any Court of law in Nigeria in respect of any offence created by or under any law of the House of Assembly. Sub-section (1)(b) of the same Section provides that the Attorney-General of a State has the power to take over and continue such criminal proceedings that may have been instituted by any other authority or person. From this constitutional provision, it is very clear that the power to institute and undertake criminal proceedings before any Court in Nigeria in respect of any offence created by or under any law of the House of Assembly is not exclusive preserve of the Attorney-General of the State. Other authorities or persons have power to so institute and undertake Criminal Proceedings before any Court of

Law in Nigeria as well. By Section 7(2)(f) of the Economic and Financial Crimes (Establishment) Act 2004, the EFCC shall be the coordinating agency for the enforcement of the provisions of any law or regulation relating to economic and financial crimes including the Criminal Code and the Penal Code.
EFCC is clearly an authority or person by virtue of Section 1(2)(a) & (b) of the EFCC Act which provides that the commission is a body corporate with perpetual succession and may be sued in its corporate name. Since it is an authority it has the power to institute and undertake criminal proceedings against any person before any Court of law in Nigeria, Katsina State inclusive.
In Attorney-General of Ondo State vs. Attorney-General of the Federation (2002) 6 SC (Pt. 1) 1 the full Court of the Supreme Court clearly stated that the prosecution of criminal matters in the State High Court is not an exclusive preserve of the State Attorney-General in the flowing words: –
“The Attorney-General of the Federation derives his powers under Section 174 of the Constitution as an agency of the Federal Government. The law is well established that the Court cannot control the manner

he exercises his powers so conferred… nor can he be prevented from exercising his functions on the grounds that his jurisdiction does not extend to any particular state in Nigeria. Section 174 of the Constitution does not impose any such limitation.”
See The State vs. Ilori (1983) 1 SCNLR 94 Section 211 of the Constitution does not impose any limitation to the powers of the EFCC to institute and undertake criminal proceedings against any person in Katsina State in respect of any offence created by or under any law of that State. The fiat given by the Attorney-General of Katsina State to the EFCC was so given ought of caution that they would not abuse any of the provision of the Constitution. Even without the fiat, the EFCC as an agent of the Federal Government had the power to prosecute the Appellants in the name of the Federal Republic of Nigeria before the Katsina State High Court for offences committed under the Penal Code of Katsina State.

Section 36(6)(b) of the Constitution provides as follows: –
“Every person who is charged with a criminal offence shall be entitled to be given adequate time and facilities for the preparation of his defence.”

This is clearly a constitutional obligation that must be fulfilled before an accused person enters his defence. At what point in time would a failure to give facilities to an accused will amount to a breach of his right to fair hearing. In the case of Okoye & Ors vs C.O.P & Ors which was cited and relied upon by learned senior counsel for the Appellant, this Court per Aka’ahs, JSC said: –
“After the accused has entered his plea, but before the actual trial commences, the accused or the counsel representing him should be availed all the facilities that will assist in the preparation of his defence. For avoidance of doubt, what the accused requires is the statement of witnesses and police investigation reports and any medical report, which bears resemblance to the offence allegedly committed by the Accused.”
In the instant case the plea of the accused persons had not been taken. Section 36(6)(b) says the documents are required for the accused defence. When the accused is set for his defence and the necessary facilities are not provided, he can decline to proceed with his defence and insist on his right to

be availed with the facilities. If the required facilities are not provided and he is forced to enter his defence and if in absence of his defence the case is determined in either way, he will now be in a position to complain that his right to fair hearing has been violated.
In the instant case, the Appellants neither appeared before the Court no pleaded to the charge. I do not see how their rights were violated thereby. I am of the firm view that the lower Court was right when it affirmed the decision of the trial Court.

For these few words and the more detailed reasoning in the lead judgment, I find no merit in this appeal. Accordingly, same shall be and it is accordingly dismissed by me.

Appearances:

B. Daudu (SAN) with A. T. Kehinde (SAN), E. Y. Kurah (SAN), Aliyu Ahmed, Esq and Uyi Igunma For Appellant(s)

O. Fagbemi (SAN) with J. S. Okutepa (SAN),
J. O. Olatoke (SAN), A. U. El-Marzua, Esq, A. G. Katsina State and M. S. Abubakar Esq (Deputy Legal Officer of EFCC) For Respondent(s)

Appearances

B. Daudu (SAN) with A. T. Kehinde (SAN), E. Y. Kurah (SAN), Aliyu Ahmed, Esq and Uyi Igunma For Appellant

AND

O. Fagbemi (SAN) with J. S. Okutepa (SAN),
J. O. Olatoke (SAN), A. U. El-Marzua, Esq, A. G. Katsina State and M. S. Abubakar Esq (Deputy Legal Officer of EFCC) For Respondent

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