NDI OKEREKE ONYUIKE v. THE PEOPLE OF LAGOS STATE & ORS
(2013)LCN/6260(CA)
In The Court of Appeal of Nigeria
On Monday, the 3rd day of June, 2013
CA/L/306/2012
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
NDI OKEREKE ONYUIKE Appellant(s)
AND
1. THE PEOPLE OF LAGOS STATE
2. MINING SYSTEM LIMITED
3. CREATIVE FINANCIAL SERVICES LIMITED
4. MR. LANCE ELAKAMA
5. OPDC PROPERTIES LIMITED
6. OAK BUSINESS AND FINANCIAL COMPANY LIMITED Respondent(s)
RATIO
DEFINITION OF JURISTIC PERSON
Who/what is a juristic person?
“A juristic person is a legal entity through which the law of a particular legal system serves to permit groups of natural persons to act as if they were a composite individual for certain purposes. It is a legal fiction which does not mean that this specific entities are human beings but rather that the law allows them to act as people for certain limited purposes, usually lawsuit, property ownership etc”. (Culled from an academic thesis).In the case of ATAGUBA AND COMPANY v. GURA NIGERIA LIMITED [2005] 8 N.W.L.R. (Pt. 927) 429
Per EDOZIE, J.S.C held:-
“Undoubtedly, for an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on it, there must be a competent Plaintiff and a competent Defendant. As a general principle, only natural persons, that is, human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. … See Shittu v. Ligali (1941) 16 N.L.R. 21, Agbonmagbe Bank Ltd. v. General Manager G.B. Ollivant Ltd. and Anor (1961) All N.L.R. 116. The law, however, recognises that apart from natural and juristic persons, some non-legal entities can sue and be sued eo nomine. Thus it has been held that no action can be brought by or against any party other than a natural person or persons unless such a party has been given by statute, expressly or impliedly (emphasis mine) or by the common law, either:-
(a) a legal persona under the name by which it sues or is sued, e.g. corporation sole and aggregate, bodies incorporated by foreign law and “quasi- corporation.” constituted by Act of Parliament; or
(b) a right to sue or be sued by that name e.g., partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued but not incorporated.
See Fawehinmi v. N.B.A. (No. 2) (1989) 2 NWLR (Pt. 105) 558, Knight and Sealie v. Dove (1964) 2 All ER 307 at 301, Carlen (Nig) Ltd. v. Unijos (1994) 1 NWLR (Pt. 323) 631…”
See also the case of The Bank of Baroda v. Iyalabani Company Limited (2002) 13 NWLR (Pt. 785) 551.
Section 253 of Law No. 10 of 2007, which was modified by Section 249 of Law No. 10 of 2011 to read “The People of Lagos” stipulated that-“Prosecutorial authority shall be exercised in the High Court in the name of the people of Lagos State”.
An enactment can create anybody or an indetermine group of persons or even inanimate objects juristic persons that may sue or be sued eo nomine, as prescribed by the enactment. An example which readily comes to mind is a ship or aircraft, for instance, which may by statute be given legal personality by making it a party in litigation, a fiction found useful for admiralty purposes – (see Section 5(2) of the Admiralty Jurisdiction Act (CAP A5) Laws of the Federation of Nigeria, 2004), which enacts inter alia that-
“An action in rem may be brought in the court against the ship in connection with which the claim or question arises”
While Section 5(3) adds in respect to maritime lien or other charge on a ship or aircraft that-
“An action in rem may be brought in the Court against the ship or aircraft.”
See also the case of Chief Gani Fawehinmi v. Nigerian Bar Association (NBA) (No.2) supra @ 596. PER DONGBAN-MENSEM, J.C.A.
THE FUNDAMENTAL RIGHT TO A FAIR HEARING
The right to fair hearing as enshrined in Section 36 of the Constitution has to do with the hearing of the matter in the court, before an administrative panel or a tribunal. The Constitution cannot contradict itself by giving the A-G powers and turning round to frustrate the application of such powers by disabling provisions. Only a perverse interpretation can produce such a result. Thus, the wide powers conferred on the A-G by Section 211 has not been fettered by Section 36 of the same Constitution.
Further, the Constitution having reserved the right of an accused person to be silent all through the trial, it is the prosecution which has the burden of proof.
The defence has no constitutional duty to establish its innocence if the prosecution fails to investigate and takes a pack of unverified and unverifiable facts to the court, the court will throw them out at the appropriate time. The fact is people who put themselves in situation that arouse suspicion open themselves to inquiry until the inquirer finds out that there is in fact no cause for alarm. The court cannot prohibit the inquirer from doing his work. PER DONGBAN-MENSEM, J.C.A.
FACTOR THAT CONSTITUTES PRIMA FACIE
What constitutes prima facie?
Available evidence does not necessarily have to come from police investigation. There are other means of collecting and gathering evidence provided the evidence is relevant and admissible, it matters not how it is collected. The appropriate time to take objection to improperly or illegally obtained evidence is at the hearing of the case when the prosecution applies to put in evidence the improperly or illegally obtained evidence. For example, in the Privy Council case of Karuma Son of Kania v. The Queen (1955) A.C. 197 @ 203, it was treated as an issue of admissibility of evidence by the Privy Council, on appeal, in these words-
“… the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence is obtained…
No doubt in a criminal case a judge always has discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused”.
In Sadau & Anor v. The State (1968) ANLR 125, the Supreme Court cited with approval the cases of Kuruma (supra) and Harris (supra) to summarize the position thus-
“there is no general rule of law in civil as well as in criminal cases that evidence which is relevant is excluded merely by the way in which it has been obtained…, the judge can, where the interest of justice demand it, exclude evidence which otherwise would be relevant considering the circumstances of its discovery and production”.
See also Ukachukwu v. UBA (2006) ALL FWLR (Pt. 300) 1736 @ 1755-56, where a full court (Salami, Ibiyeye, Omage, Dattijo Muhammad and Sanusi, JJ.C.A.) held inter alia that-
“the Supreme Court and indeed this court have held on number of occasions that evidence relevant to a case is admissible however obtained. The illegality (if any) may only attach to the person who obtained it illegally or improperly. See Torti v. Ukpabi (1984) 1 SCNLR 214; Sadau v. State (1968) 1 All NLR 124. (See per Salami, J.C.A. (ahtw). PER DONGBAN-MENSEM, J.C.A.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): On the 23rd March, 2012, the Hon. Justice C. A. Balogun of the Lagos State High Court of Justice holden at Court 51, Criminal Division, delivered a considered Ruling against the Appellant and five others and in favour of the 1st Respondent then Prosecution/Respondent. The Appellant was the 1st Defendant/Applicant. In this judgment the Appellant is referred to simply as the Appellant and the 1st Respondent simply as the 1st Respondent; (the other Respondents being nominal Respondents).
The brief facts of the case are that eight counts of charges had been crafted against the Appellant and five others by the Attorney General of Lagos State (hereafter refer simply as A-G). An application was then made to the Lagos State High Court coram Balogun J. for leave to prefer the charges. The eight counts of charges were brought under the Administration of Criminal Justice Law of Lagos State, 2007 alleging the offences of conspiracy to steal and stealing. The offences are said to be respectively contrary to Sections 516 and 390(7) of the Criminal Code of Lagos State Cap C17 vol.2 Laws of Lagos State 2003. The Appellant heard of the application in the vine yard.
Before a formal arraignment, the Appellant challenged the competence of the charges preferred and prayed for an order quashing same. The court upon taking arguments from both sides dismissed the application in its entirety. The matter was then adjourned for the arraignment of the Appellant and the other suspects.
Dissatisfied by the said Ruling, the Appellant filed a Notice of Appeal dated 4th April, 2012 with 12 Grounds of appeal. Both parties each filed and adopted their respective brief of argument in compliance with the practice before this Court.
Learned senior counsel for the Appellant, Chief Wole Olanipekun, SAN formulates five issues for determination, and the learned Senior Counsel for the Respondent Lawan Pedro, SAN (Solicitor General of Lagos State (here after refer simply as SG) adopts the five issues of the Appellant which are follows:-
1. Whether the 1st Respondent is a competent entity that can prefer criminal charges against the Appellant. (Ground 1).
2. Whether the charge before the lower court was/is not incompetent and vitiated by non-satisfaction of a condition precedent and breach of Appellant’s right to fair hearing. (Grounds 2, 3, 4, 5 & 8).
3. Considering the terse contents of the charge filed before the lower court and the scant documents attached as proof of evidence, whether the jurisdiction of the lower court was properly activated to entertain a criminal trial. (Grounds 6, 7 & 12).
4. Whether the prosecutorial powers of the Attorney-General of a State are unqualified and not limited by Section 211(3) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended) and which said Constitutional provisions are superior to any other law, such that any law which is inconsistent with the said Constitutional provisions is void to the extent of its inconsistency. (Grounds 9 & 11)
5. Whether the lower court was right to approve of the use before it of material evidence which are subject of restraining orders of courts of coordinate jurisdiction. (Grounds 10).
This appeal shall be determined on the said issues as formulated by the Appellant. (Issues two and five will be taken together.)
Issue One
Issue one challenges the competence of “the people of Lagos State” which the learned silk opines is not a juristic personality and therefore not a proper party before the court.
The learned senior Counsel to the Appellant submits that Section 6 of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended) (here after refers simply as the Constitution) provides for the judicial powers exercisable by Nigerian courts. That the clear and unambiguous provision is to the effect that the jurisdiction of Nigerian courts is only in respect of determination of dispute between verifiable, tangible and identifiable persons (natural and artificial) qua parties before the court, that can enjoy civil right and/or be liable to obligation as envisaged by Section 36 of the Constitution Senior Counsel places reliance on the cases of Administrator/Executors of the Estate of General Sani Abacha v. Samuel David Eke Spiff & Ors (2009) All FWLR (Pt. 467) 1 @ 30, Calabar Central Co-operative Society v. Ekpo (2008) 2 SCNJ 307 @ 328.
The learned Silk submits that when interpreting a statute the court would avoid an interpretation that will lead to absurdity (See Global Excellence Com. Ltd & Ors. v. Donald Duke (2007) 16 NWLR (Pt. 1059) 22). Questions if “the people of Lagos” can be a party, government or authority contemplated as a litigant in court by Section 6(6)(b) of the Constitution which the learned Silk says is mandatory requiring no interpretation but application; that the court cannot act in vain by adjudicating over parties against whom judgment cannot be enforced. See (Adegun v. Fashogbon (2008) 17 NWLR (Pt. 1115) 149).
Submits that the charges before the lower court is improperly constituted, leaving the court without jurisdiction and that the issue of jurisdiction can be raised at any time even on appeal and urges this court to so hold. (Refers Bronik Motors v. Wema Bank (1983) 6 SC 158-138).
Submits that Section 253 of the Administration of Criminal Justice Law of Lagos State, 2007 (here after refers simply as ACJL) which mandates the prosecution to be initiated in the name of “The People of Lagos State” is inconsistent with the provision of Section 6(6)(b) of the Constitution. That on the authority of Section 1(3) of the Constitution, Section 253 ACJL is void to the extent of its inconsistency with Section 6(6)(b) of the Constitution.
Senior Counsel posits that the Respondent appreciates the fundamental defect in Section 253 ACJI, 2007 which led to its replacement by the provisions of Section 249 of the ACJL (Repeal & Re-enactment) 2011 law to the effect that the “prosecutorial authority shall be exercised in the High Court in the name of “The State of Lagos”.
In response the learned senior Counsel for the 1st Respondent Mr. Lawal Pedro (SG) drew the attention of this court to the fact that the issue of competence of the complainant is a fresh issue as it was not raised and determined at the trial court. The learned silk however, concedes that an issue of jurisdiction can be raised at any stage in the proceedings up to the Supreme Court. Submits that the contention by the Appellant that the complainant is not a juristic person is a misconception of the law and that the cases cited and Section 6(6)(b) of the Constitution relied upon are not applicable because this is a Criminal proceeding with the procedure for commencement of action expressly stated by statute. (Refers Usman Danfodio University v. Krans Thompson Organisation Ltd (2001) 15 NWLR (Pt. 735) p.305)
The learned silk says by Section 211(1)-(3) of the Constitution the prosecutorial power of a state is vested in the Attorney-General who acted in compliance with the procedure for instituting criminal proceedings in force at the time of filing the criminal information which is the ACJL. Refers particularly to Sections 69, 70 & 253 of the said law. Section 253 provides that;
“Prosecutorial authority shall be exercised in the High Court in the name of the people of Lagos State.”
The learned Silk draws attention to the term “shall” used in the provision of Section 253 which connotes mandatory compliance as the method for the commencement of a criminal trial in Lagos State. Submits that when a legislation is clear and unambiguous a clear ordinary meaning must be given to such legislation. (Refers Tabik Investment Ltd & Anor v. GTB Plc (2011) LPELR-SC/2005, Nonye v. Anyichie & Ors 2005 2 NWLR (Pt. 910) page 623, Toriola v. William (1982) 7 SC 27, Lawal v. G.B. Ollivant (1972) 3 SC 124).
The learned Silk further submits that locus standi can be conferred by a statute on a person or body to initiate an action as in this case and urges this Court to discountenance the argument of the Appellant that the 1st Respondent is not a juristic person.
Who/what is a juristic person?
“A juristic person is a legal entity through which the law of a particular legal system serves to permit groups of natural persons to act as if they were a composite individual for certain purposes. It is a legal fiction which does not mean that this specific entities are human beings but rather that the law allows them to act as people for certain limited purposes, usually lawsuit, property ownership etc”. (Culled from an academic thesis).
In the case of ATAGUBA AND COMPANY v. GURA NIGERIA LIMITED [2005] 8 N.W.L.R. (Pt. 927) 429
Per EDOZIE, J.S.C held:-
“Undoubtedly, for an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on it, there must be a competent Plaintiff and a competent Defendant. As a general principle, only natural persons, that is, human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. … See Shittu v. Ligali (1941) 16 N.L.R. 21, Agbonmagbe Bank Ltd. v. General Manager G.B. Ollivant Ltd. and Anor (1961) All N.L.R. 116. The law, however, recognises that apart from natural and juristic persons, some non-legal entities can sue and be sued eo nomine. Thus it has been held that no action can be brought by or against any party other than a natural person or persons unless such a party has been given by statute, expressly or impliedly (emphasis mine) or by the common law, either:-
(a) a legal persona under the name by which it sues or is sued, e.g. corporation sole and aggregate, bodies incorporated by foreign law and “quasi- corporation.” constituted by Act of Parliament; or
(b) a right to sue or be sued by that name e.g., partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued but not incorporated.
See Fawehinmi v. N.B.A. (No. 2) (1989) 2 NWLR (Pt. 105) 558, Knight and Sealie v. Dove (1964) 2 All ER 307 at 301, Carlen (Nig) Ltd. v. Unijos (1994) 1 NWLR (Pt. 323) 631…”
See also the case of The Bank of Baroda v. Iyalabani Company Limited (2002) 13 NWLR (Pt. 785) 551.
Section 253 of Law No. 10 of 2007, which was modified by Section 249 of Law No. 10 of 2011 to read “The People of Lagos” stipulated that-
“Prosecutorial authority shall be exercised in the High Court in the name of the people of Lagos State”.
An enactment can create anybody or an indetermine group of persons or even inanimate objects juristic persons that may sue or be sued eo nomine, as prescribed by the enactment. An example which readily comes to mind is a ship or aircraft, for instance, which may by statute be given legal personality by making it a party in litigation, a fiction found useful for admiralty purposes – (see Section 5(2) of the Admiralty Jurisdiction Act (CAP A5) Laws of the Federation of Nigeria, 2004), which enacts inter alia that-
“An action in rem may be brought in the court against the ship in connection with which the claim or question arises”
While Section 5(3) adds in respect to maritime lien or other charge on a ship or aircraft that-
“An action in rem may be brought in the Court against the ship or aircraft.”
See also the case of Chief Gani Fawehinmi v. Nigerian Bar Association (NBA) (No.2) supra @ 596.
The question to ask is whether the “people of Lagos State” is a creation of the law? If it is, how has it contravened the constitution?.
I do not think so. Section 35(2) of the Constitution reserves the right of the accused to be silent. Section 36 (6) (b)-(e) systematically set out the order of a criminal trial.
In the instant appeal, the conferring statute is Section 253 of the ACJL. In the circumstances, I agree with the submission of the learned SG of Lagos State that the learned trial court had no option than to comply with the provisions of the law. Section 253 is made out in mandatory terms and leaves no room for manoeuver. Indeed, why cannot the Hon. A-G of Lagos State take up proceedings in the name of the people of Lagos State? It was Burke, Robert E who said:-
“Government is defined as a political organization comprising the individuals and institutions authorized to formulate public policies and conduct affairs of the State.”
Why can the “people of Lagos State” not be a party within the contemplation of Section 6(6)(b) of the 1999 Constitution? Sounds to me a rather preposterous proposition that a Constitution which opens with a preamble of “we the people of Nigeria do hereby…” will turn around and say the “people of Lagos State” following in the footsteps of the constitution, cannot together as the “people of Lagos State”, through their elected Government, sue and be sued through a collective nomenclature of “the people of Lagos State!”
“The people of Lagos State” is not some fanciful phrase like “unknown persons”. The nomenclature is not without a discernible source nor is it without a legal backing. Section 253 ACJL confers legal personality on the 1st Respondent which is entitle to sue and be sued, what it means is that although “the people of Lagos State” may not be a body corporate, it has expressly been empowered by a statute which is Section 253 of the ACJL. “The people of Lagos State” therefore qualify as a juristic personality. See Carlen (Nig.) v. University of Jos (1994) 1 NWLR (Pt. 323) 631, Shittu v. Ligali (1941) 16 NLR 23, Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558.
Thus being a creation of statute, the nomenclature “people of Lagos State” is a legal entity and is a proper party in the proceedings under consideration.
I am unable to identify any form of conflict and therefore inconsistency between the ACJL and the 1999 Constitution on the legal status of the 1st Respondent.
Issues two & five
In these issues, the learned Silk for the Appellant contends that the absence of prior Police investigation, the non-prompt confrontation of the Appellant with the charges divest the court of jurisdiction. Also that the right of the Appellant to fair hearing was breached by the usage of materials prohibited by a court order which learned trial Judge discountenanced.
Upon the authority of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 the learned Silk for the Appellant submits that the count of charges before the trial court was malignantly afflicted with jurisdiction divesting features. That the learned trial Judge should have declined jurisdiction in the circumstance. That the trial court refused to appreciate the serious implication of criminal trial and rather chose to arrogate unqualified discretion to the Attorney-General of Lagos State in the institution of criminal proceedings, holding that the Police has a discretion whether or not to investigate offences reported to it. The learned Silk purports that all the parties and the court itself were ad idem on the fact that:-
1. There was no investigation of any kind by the Police before criminal proceedings were initiated against the Appellant.
2. There was no complaint against the Appellant to the Police in respect of the criminal charges filed by the 1st Respondent at the lower court.
3. There was no evidence of any investigation of alleged crimes, purportedly committed by the Appellant carried out by any authority or body, statutorily empowered to do so.
4. The Appellant was not questioned or heard at all in respect of any allegation of crime and investigation of same to ground the criminal charge filed at the lower court.
5. The police is statutorily vested by virtue of Section 4 of the Police Act and 74(1) & (2) of the ACJL with the power to investigate offences before initiation of criminal charges.
It is the case of the Appellant that the proper condition precedent to institution of criminal trial is not mere allegation or conjecturisation of crime at the instance of the A-G. What is required maintains the learned silk, is detailed and painstaking investigation to put the allegation beyond the realm of speculation. The absence of satisfaction of condition precedent derobes a court of jurisdiction as in this instance. (Refers Onogoruwa v. State (1993) 7 NWLR (Pt. 303) 49 @ 107, Akilu v. Fawehinmi No. 2 (1989) 2 NWLR (Pt. 102) 122 @ 207, Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 536).
The learned silk also submits that the finding of the trial court at pages 152-153 of the record to the effect that the office of the A-G is not a court is without basis in law as the doctrine of fair hearing is not limited to the confines of the courtroom alone but extends to the investigation and adjudicating functions of public authorities like the A-G. That every person in authority like the Attorney-General whose decision is likely to impact on the civil right and obligation of any person is bound to apply the principle of natural justice. (Refers Ndukwe v. L.P.D.C. (2007) 5 NWLR (Pt. 1026) 1; (2007) 29 NSCQLR 518 @ 544-545, Adeniyi v. Government Council Yaba Tech (1993) 6 NWLR (Pt. 300) 426 @ 451, A-G Lagos State v. A-G Federation (2004) 18 NWLR (Pt. 904) 1, Memudu Lagunju v. Olubadan in Council & Anor (1946/1949) WACA Vol. XII page 406 @ 410.
Further submits that the decision in the cases of Fawehinmi v. A-G Lagos No.1 (1989) 3 NWLR (Pt. 112) 708, Wabara v. FRN CA/A/7/6/2006, Onogoruwa v. State (1993) 7 NWLR (Pt. 303) 81 cited before the trial court are to the effect that criminal prosecution can only be validly instituted on the basis of a verifiable police report and/or investigation but that the trial court in breach of the time honoured principle of stare decisis refused to follow the said decisions. That the trial court is bound to follow the decision of a higher court even if he does not agree with such decision and that criminal prosecution cannot be hinged on speculation. (Refer Atolagbe v. Awuni (supra), Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310 @ 336).
The learned Silk draws the attention of this court to the perceived fundamental admissions made by the 1st Respondent particularly in paras. 5.1 lines 4-12, 5.7 lines 6-10 of the 1st Respondent’s brief of argument and urges this court to construe the admissions of the 1st Respondent in light of the exact meaning they represent. (Refers Section 20(1) of the Evidence Act, Eyuafe v. Seismograph Ltd. 1979 9-10 SC 135 @ 146, Arta Industries Nig. Ltd. v. NBCI (1998) 4 NWLR (Pt. 546) 357 @ 408).
The learned Silk also submits that penal statutes must not only be construed strictly and requirements therein enforced to the latter, but strict construction must lean in favour of the accused and against the prosecution particularly where a penal statute is capable of two interpretations. Counsel places reliance on the cases of Henry Umoerah v. C.O.P. (1977) 7 SC 12 @ page 28, Code of Conduct Tribunal, In Charge No. CCT/ABJ/01/11; FRN v. Former Governor, Bola Ahmed Tinubi, delivered on the 30/11/2011.
On the issue of prima facie case, submits that in the present circumstances there cannot be valid ground for proceeding there being no prima facie case. (Refer Grange v. FRN (2010) 7 NWLR (Pt. 1192) 135 @ 166). On pre-condition to the establishment of a prima facie case, Counsel relies on the case of Adukwe v. FRN (2009) 9 NWLR (Pt. 1146) 370 @ 395-396 which held that the court must confine itself to the statement and documents put forward at the time of considering the objection.
Learned Silk declares that Section 74(7) ACJL which confers unguarded powers to the A-G is inconsistent with Section 36 of the Constitution and by virtue of the provision of Section 1(3) of the Constitution, Section 74(7) ACJL is null to the extent of its inconsistency. (Refers Orhiunu v. FRN (2005) 1 NWLR (Pt. 906) 39 @ 48, Stabilini Visinoni Ltd v. FBIR (2009) 13 NWLR (Pt. 1157) 200 @ 225-227).
The 1st Respondent concedes to the fact that both Sections 4 of the Police Act and 74(1)-(4) ACJL make provisions for Police investigation of a crime but maintains that the non-compliance with the above provisions does not preclude the A-G from instituting criminal proceeding pursuant to Section 211 of the Constitution, against anybody. The learned Silk argues that there is no law which states that Police investigation must be conducted before the A-G can exercise his prosecutorial powers. That the Police has a discretion whether or not to investigation an allegation of crime brought it. Similarly, Section 74(7) ACJL provides that it is not mandatory for the A-G to either receive Police investigation report nor issue legal advice before he can institute criminal proceedings against any person. Maintains that what is required is for the A-G to have at his disposal sufficient evidence to institute criminal proceedings. (Refers Gani Fawehinmi v. IGP (2002) 7 NWLR (Pt. 767) @ 606, 607 @ 671, Onagoruwa v. State (1993) 7 NWLR (Pt. 303) 49 @ 107).
Submits that there is a difference between a prima facie case as a ground for proceeding and prima facie case based on proof of case for deciding against the defence. At this stage the existence of a prima facie evidence is sufficient for the Attorney-General of institute criminal prosecution. (Refer Ohwovoriole v. FRN (2003) FWLR (Pt. 118) 1224 @ 1277, Tongo v. C.O.P. (2007) NCC 532, Ajidagba & Ors v. IGP (1958) NSCC Vol. 1, 20).
The learned SG further submits that the A-G being the Chief Law Officer of the state has the duty to ensure that the law of the state is not violated and that any criminal offence is prosecuted.
It was also the case of the Appellant that her right to fair hearing was further breached by the insistence of the trial Judge to proceed with the application. The learned silk submits that the learned trial judge proceeded in spite of the existence of orders prohibiting any further proceedings against the Appellant that by law and the tenets of fair hearing, the decision of High Court must be enforced by all authorities including courts of co-ordinate jurisdiction but the trial court treated such court order with contempt. That it is evident on record that there are valid orders restraining the use of materials on which the charge of the trial court was based but the trial court discountenanced the allegation of contempt. (See pages 62-72, 159 of the records & Section 287(3) of the Constitution).
Counsel further submits that any process vitiated by denial of fair hearing is incompetent, since same cannot produce an outcome that can be countenanced in law. That the trial court did not appreciate the benefit of right to fair hearing conferred on the Appellant in respect of being heard in a purported investigation before the subsequent filing of a charge against the Appellant. (Damina v. State (1995) 8 NWLR (Pt. 413) 513, Mohammed v. Kano Native Authority (1968) 1 All NLR 411).
Counsel for the Appellant in reply to the 1st Respondent’s argument contends that the 1st Respondent failed to challenge or put forward contrary and superior legal arguments to those of the Appellant with consequential effect that arguments in the Appellant’s brief are deemed admitted. Refer Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414 @ 456.
In answer, the learned Silk for the 1st Respondent submits that issue five should be declared abandoned as the Appellant’s argument did not support and have no bearing with the point raised and that the resultant effect is that same be struck out by this court.
In the alternative the learned SG maintains that the Appellant failed to show that the documents forming part of the proof of evidence were procured in disobedience of a court order. That it is a settled principle of law that he who asserts must prove and the Appellant throughout the proceedings failed, neglected and or omitted to place material evidence before the court to support the contention as they failed to appear in court to defend the charges.
Counsel further submits that assuming without conceding that the material evidence in the proof of evidence were obtained or being used illegally in violation of a court order, if the material evidence in question is relevant to the determination of the case, it is admissible in criminal proceeding notwithstanding how it was obtained as it is relevant to the matter in issue. (Musa Sadau & Anor. v. The State (1968) NMLR 208, Kuruma v. R (1955) 1 All ER 236 @ 239)
In faulting the argument of the learned SG Lagos State, the learned Silk for the Appellant drew a difference analogy between illegally procured evidence and evidence which its use is subject to restraining orders of court. These restraining orders are at pages 62-72 of the records of 307. Page 62-66 bears the records of proceedings before Justice S.B.A. Candide-Johnson which bears an interim order made on page 66. Page 68-69 bears an interim order made by A. A. Philips (Mrs.) Judge. Page 70-72 bears an interim order rolled out by Hon. Justice E. A. Adebanjo. A common feature to all these orders is that the 1st Respondent is not a party and the orders are interim orders of a short life span made ex parte applications against parties who are alien to the instant proceedings. I fail to comprehend how such interim ex parte orders can be the basis for controlling and derailing the action of the A-G of Lagos State in the exercise of his constitutional duty as donated by Section 211 of the Constitution and the procedure for which exercise is provided by Section 74 of the ACJL.
As I understand the facts of this case- the Appellant had not been invited nor confronted with the facts and the allegations therefore, the issue of whether a prima facie case has been made out has not arisen. My lord Fabiyi, JSC in the case of FRN v. Senator Adolphus N. Wabara & Ors. (2013) 5 NWLR (Pt. 1347) 331…. said it is premature to raise the issue at this stage. The issue of this case can be liken to a man who suspects a foul play over his properties and elects to conduct a search with the CAC to determine that his properties have not been stolen by an illegal registration. Can the party who raised the man’s suspicion ask the court to stop the man from conducting the search? I think not so. The Hon. A-G of Lagos State is the Chief Legal Officer of the Lagos State. He has the responsibility to maintain law and order in the State and to enhance the performance of his duty; the constitution confers enormous powers on him. The State Assembly creates an enabling atmosphere for the performance of this Constitutional duty by the enactment of law, in this case the ACJL, such law says certain steps have to be taken in a situation where the A-G senses danger. The A-G sets in motion the machinery to determine the existence of this danger. Can the A-G be precluded from proceeding with the initiation of this procedure aimed at the maintenance of law and order in the state? I think not so. Up until the accused person is confronted with the allegation, his right of defence is not activated.
There can be no trial also without confrontation, when confronted he has a constitutional right to be allowed sufficient time to prepare for his defence, any law which attempts to take away this right will be inconsistent with the provision of the Constitution and is liable to be struck down as null and void.
The right to fair hearing as enshrined in Section 36 of the Constitution has to do with the hearing of the matter in the court, before an administrative panel or a tribunal. The Constitution cannot contradict itself by giving the A-G powers and turning round to frustrate the application of such powers by disabling provisions. Only a perverse interpretation can produce such a result. Thus, the wide powers conferred on the A-G by Section 211 has not been fettered by Section 36 of the same Constitution.
Further, the Constitution having reserved the right of an accused person to be silent all through the trial, it is the prosecution which has the burden of proof.
The defence has no constitutional duty to establish its innocence if the prosecution fails to investigate and takes a pack of unverified and unverifiable facts to the court, the court will throw them out at the appropriate time. The fact is people who put themselves in situation that arouse suspicion open themselves to inquiry until the inquirer finds out that there is in fact no cause for alarm. The court cannot prohibit the inquirer from doing his work.
The learned Silk relied heavily on the case of Sani Abacha on the need for Police investigation. The Supreme Court in Abacha’s case did not say investigation must be by the police, it says there must facts which disclose a prima facie case and these facts could be on oath or not!
What constitutes prima facie?
Available evidence does not necessarily have to come from police investigation. There are other means of collecting and gathering evidence provided the evidence is relevant and admissible, it matters not how it is collected. The appropriate time to take objection to improperly or illegally obtained evidence is at the hearing of the case when the prosecution applies to put in evidence the improperly or illegally obtained evidence. For example, in the Privy Council case of Karuma Son of Kania v. The Queen (1955) A.C. 197 @ 203, it was treated as an issue of admissibility of evidence by the Privy Council, on appeal, in these words-
“… the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence is obtained…
No doubt in a criminal case a judge always has discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused”.
In Sadau & Anor v. The State (1968) ANLR 125, the Supreme Court cited with approval the cases of Kuruma (supra) and Harris (supra) to summarize the position thus-
“there is no general rule of law in civil as well as in criminal cases that evidence which is relevant is excluded merely by the way in which it has been obtained…, the judge can, where the interest of justice demand it, exclude evidence which otherwise would be relevant considering the circumstances of its discovery and production”.
See also Ukachukwu v. UBA (2006) ALL FWLR (Pt. 300) 1736 @ 1755-56, where a full court (Salami, Ibiyeye, Omage, Dattijo Muhammad and Sanusi, JJ.C.A.) held inter alia that-
“the Supreme Court and indeed this court have held on number of occasions that evidence relevant to a case is admissible however obtained. The illegality (if any) may only attach to the person who obtained it illegally or improperly. See Torti v. Ukpabi (1984) 1 SCNLR 214; Sadau v. State (1968) 1 All NLR 124. (See per Salami, J.C.A. (ahtw)
There is statutory support for this decision in Sections 14 and 15 of the Evidence Act, 2011, which state-
14. Evidence obtained-
(a) Improperly or in contravention of a law; or
(b) in consequence of an impropriety or of a contravention of a law,
Shall be admissible unless the court is of the opinion that the desirability of admitting the evidence is out-weighed by the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained.
15. For the purpose of Section 14, the matters that the court shall take into account include-
(a). the probative value of the evidence;
(b). the importance of the evidence in the proceeding;
(c). the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceedings;
(d). the gravity of the impropriety or contravention;
(e). whether the impropriety or contravention was deliberate or reckless;
(f). whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention of law.”
In the case of the FRN v. Senator Adolphus N. Wabara & Ors. (2013) 5 NWLR (Pt. 1347) 331, his lordship Fabiyi, J.S.C. held in analogous circumstances inter alia that-
“the respondents touted the idea of branding a proposed witnesses as a ‘tainted witness’. Let me say it in passing that a person cannot be declared as a tainted witness until he has testified and duly cross-examined. In sum, we are not there yet”.
It appears the Appellant secured some orders of a High Court cited at pages 62-72 restraining the use of the materials on which the charge at the lower court was based. The learned senior Counsel cites Section 287(3) of the Constitution as authority to challenge the discountenance of such orders by the learned trial court rather than enforce same.
The Hon. A-G of Lagos State has a duty as the Chief Law Officer of the State to maintain law and order. Due to the essential and profound nature of this responsibility, the Constitution clothed the A-G with uncommon powers and the manner of the discharge of the said powers are also provided for by the Constitution. (Refer Section 211 (1)(a)-(c), (2) & (3)). The Apex court gave judicial interpretation to the nature of the power of the Hon. A-G in the case of the State v. Ilori (1983) 1 SCNLR 94. It is curious therefore that the authority of the A-G to institute criminal proceedings is being challenged. When the office of the A-G is in fact the controller of prosecutions in the State.
Further, our judicial system has been enriched with decisions of the apex court and of this court to the effect that evidence wrongfully admitted can be discountenanced in the course of the evaluation of such evidence. It is my humble and considered opinion that sufficient safety values have been built into our judicial system to eliminate unnecessary destructive objections to the prosecution of cases. The trial court should be allowed to hear matters to their logical conclusions and let the lawyers fish out the errors and take them to the Appellate courts. That way, matters will be concluded timeously and parties can move on rather than spend ten years going back and forth on preliminary issues.
How can a person who has not been arraigned be said to have been denied fair hearing? The Hon. A-G has extended no invitation to the Appellant, has expressed no allegation against the Appellant. In the exercise of his duties as the Chief Legal Officer in the State, the Hon. A-G of Lagos State, upon good reason within his contemplation; sets out to collect and collate materials with a view to stem the breakdown of law and order in Lagos state. He finds some materials for which he requires leave of court to proceed. Should he be precluded from proceeding? It was the inquisition of the Appellant which led her to court; the A-G had not invited her. It appears the Appellant jumped the gun. (See FRN v. Senator (supra) per Fabiyi, JSC).
I find in the provision of Section 36 that the defence shall be given sufficient time and opportunity to prepare its defence, if it elects to, as reciprocatory of the practice that the prosecution is not expected to turn over to the defence, its file and full proof of evidence.
A criminal trial is unlike a civil trial where pleadings are filed well ahead of the hearing of the matter in courts even at that the facts and not evidence are pleaded. The law places the determination of facts for the initiation of prosecution at the discretion of the A-G of the State. When the stage of confronting the accused with the allegation arises, the right of the accused then arises to challenge the proceedings. This bourgeoning culture of arresting proceedings, prosecutions, investigations etc, is becoming quite worrisome.
We must stop this impunity of obstruction of legal processes from progressing.
I find it inconceivable that the constitutional powers of the A-G should be subjected to an enactment of the National Assembly. I must hasten to add that the Constitution is also an enactment of the National Assembly but which has been, by the Act of the same National Assembly, made superior to all other enactments. The Constitution is the ground norm and all other enactments must bow to its authority as inconsistency with the constitution renders any other enactment null and void to the extent of such inconsistency. It follows therefore that the Police Act is not the enactment to control the responsibilities of the A-G of a State who is the Chief Legal Officer of the State.
Section 4 of the Police Act is an act of the National Assembly which is subject to the authority of the Constitution, a superior enactment also of the National Assembly but which has the edge of being the ground norm from which all other Acts of the National Assembly find their domain.
Section 19 of the Police Act in facts subjects the power of the Police to prosecute to the authority of the A-G not the other way round as argued an advocated for by the SAN for the Appellant. The Apex court affirmed this position in the case of State v. Ilori (1983) 1 SCNLR 94.
The learned senior counsel denounces Section 74 of the Criminal Justice Law of Lagos as inconsistent with the Constitution. Perhaps, viewing the said law as a state law. It should be subjected to the Police Act, a Federal enactment? NO
The Criminal Justice Law is an expression of the representatives of the peoples of Lagos State, who have demonstrated a desire for a secure State. They have therefore further enhanced the wide constitutional powers of the A-G, by the enactment of the Criminal Justice Law. The people of Lagos State must not be denied their collective desire for a crime free state. No good reasons have been put forward to strike down Sections 74 and 253 of ACJL as inconsistent with the Constitution.
Issue three
The learned Silk finds no substance in all count of charges preferred against the Appellant and submits that all the eight counts and particulars supplied before the trial court are vague leaving a lot of room for speculation and conjecture without disclosing the punishment for the offence alleged. (Refers MDPDT v. Okonkwo (2001) 1 NWLR (Pt. 711) 206 @ 237, James v. Nigerian Airforce (2000) 13 NWLR (Pt. 684) 406 @ 424-425).
Also submits that from the evidence before the trial court there is no linkage of the Appellant to the commission of the alleged offence or any offence whatsoever, consequently no prima facie case was disclosed. That there cannot be prima facie case without proof of cogent and verifiable investigation by the Police. The learned silk relies heavily on the cases of Abacha v. State (2002) 11 NWLR (Pt. 779) 437 @ 486, Ohwovoriole v. FRN (2003) 2 NWLR (Pt. 803) 176 @ 193, Grange v. FRN (2010) 7 NWLR (Pt. 1192) 135 @ 166-167, Uwazuruike v. A-G Fed. (2008) 10 NWLR (Pt. 1096) 444 @ 465.
Counsel further submits that the trial court relied on Section 260(2) of the ACJL to hold that disclosure of a prima facie case relates to sufficiency of evidence and, that same cannot be competently raised by the Appellant until the close of the prosecution’s case. That the trial court failed to take cognizance of the fact that disclosure of prima facie case at the commencement of trial is a direct offshoot of the Constitution and any law that is inconsistent with the Constitution is void to the extent of its inconsistency. (Section 1, 1(1) & (3), 36 (6)(a) & (b) of the Constitution, M.D.P.D.T. v. Okonkwo (supra), Odofin v. Agu (1992) 3 NWLR (Pt. 229) 380).
The Appellant challenges Section 260 (2) of the ACJL as inconsistent with the provision of the Constitution. It is the argument of the Appellant that Section 36 of the Constitution must have been contravened by Section 260(2) of the ACJL.
In comparing the provisions of Section 36(1) & (6)(a) of the Constitution on one hand and Section 260(2) of the ACJL on the other hand, the learned Silk contends that the Constitution provides that an accused must be informed promptly and in detail of the offences he is being charged with and that any law e.g. Section 260(2) ACJL which tries to ambush, limit, stultify, or truncate this right cannot be valid because it will be clearly inconsistent with the Constitution. (Refer Fashakin Foods Nig. Ltd v. Shosanya (2006) 10 NWLR (Pt. 987) 126 @ 148, Bello v. A-G of Oyo State (1986) 2 NSCC (Pt. II) 1257 @ 1266-1267).
Further urges this court to discountenance the 1st Respondent reliance on the case of Atanda v. A-G of Western Nigeria because the situation in the above case does not arise here since the Appellant was not invited to make any statement and it cannot therefore be performed or argued that the Appellant would have made a statement if invited because there is no compulsion to make statements.
The learned Silk for the Respondent submits that the Respondent has substantially complied with the law to activate the jurisdiction of the trial court in accordance with Section 251(1) ACJL. That the Appellant’s argument that the charge and proof of evidence are in the realm of conjecture, speculation, suspicion or inference is misplaced and should be discountenanced. Submits further that Appellant’s argument on this issue goes to insufficiency of valid evidence to proceed with the criminal prosecution, which is premature and against the provisions of Section 260(2) ACJL which states that:-
“an objection to the sufficiency of evidence disclosed in the proof evidence attached to the information, shall not be raised before the close of the prosecution’s case.”
Counsel submits that Section 260(2) ACJL is by no stretch of imagination inconsistent with the provisions Section 36 of the Constitution as submitted by the Appellant as the fundamental right guaranteed is right to fair hearing within a reasonable time by a court or other tribunal established by law. That the Appellant has been charged with a criminal offence, he has been informed of the nature of the offence by service of the information and is left for him to defend the allegation.
Also submits that where there is statute that provides a particular method of performing a duty, that method alone and no other method must be adopted. That the provision of the applicable law i.e. ACJL is clear and unambiguous to the fact that any challenge to the sufficiency of evidence shall not be raised before the close of the prosecution’s case and that the Appellant failed to adopt and comply with the statutory methods prescribed by the legislation. (Obasanya v. Babafemi (2000) 23 WRN 30 @ 48, Cooperative & Commerce Bank Nig. Plc v. A-G Anambra State (1992) 8 NWLR (Pt. 261) 528).
Further submits that all the cases relied upon by the Appellant on this issue support the Respondent’s case. That it is immaterial to have the Appellant’s statement and that even if the Appellant was invited he was not bound to make statement to the police or any other person. (Refer Atanda v. A-G Western Nigeria (1965) NMLR 225 @ 228).
The Appellant challenges the charges.
What were the facts placed before Balogun J. of the Lagos State High Court, which the Appellants find as frivolous and not worthy of further adjudication? I think it is best to look at the charges placed before the trial Judge.
The said counts of charges are hereby reproduced for the ease of reference:
STATEMENT OF OFFENCE:- 1ST COUNT
Conspiracy to commit a felony to wit stealing contrary to Section 516 of the Criminal Code of Lagos State, Cap, C17, Vol. 2 Laws of Lagos State, 2003.
PARTICULARS OF OFFENCE
Ndi Okereke-Onyuike “F”, Lance Elakama “M” (officers of the Nigerian Stock Exchange) and Mining System Limited on or about the 20th of June, 2008 at the Nigerian Stock Exchange Building Nos. 2/4 Customs Street Marina, Lagos in the Lagos Judicial Division with intent to defraud conspired to commit a felony to wit: stealing the sun N455,000,00 (Four Hundred and Fifty-Five Million Naira) property of the Nigerian Stock Exchange.
STATEMENT OF OFFENCE:- 2ND COUNT
Stealing contrary of Section 390(7) of the Criminal Code of Lagos, Cap, C17, Vol. 2 Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
Ndi Okereke-Onyuike “F”, Lance Elakama “M” (officers of the Nigerian Stock Exchange) and Mining System Limited on or about the 20th of June, 2008 at the Nigerian Stock Exchange Building Nos. 2/4 Customs Street Marina, Lagos in the Lagos Judicial Division stole and fraudulently converted the sum of N455,000.00 (Four Hundred an Fifty-Five Million Naira) property of the Nigerian Stock Exchange.
STATEMENT OF OFFENCE:- 3RD COUNT
Conspired to commit a felony to with stealing contrary to Section 516 of the Criminal Code of Lagos State, Cap C17, Vol. 2 Laws Lagos State 2003.
PARTICULARS OF OFFENCE
Ndi Okereke-Onyuike “F” Lance Elakama “M” (officers of the Nigerian Stock Exchange) and Creative Financial Services Limited on or about the 20th of June, 2008 at the Nigerian Stock Exchange Building Nos. 2/4 Customs Street Marina, Lagos in the Lagos Judicial Division with intent to defraud conspired to commit felony to wit: stealing the sum of N495,000,000 (Four Hundred and Ninety-Five Million Naira) property of the Nigerian Stock Exchange.
STATEMENT OF OFFENCE:- 4TH COUNT
Stealing contrary to Section 390(7) of the Criminal Code Cap. C17, Vol. 2 Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
Ndi Okereke-Onyuike “F”, Lance Elakama “M” (officers of the Nigerian Stock Exchange) and Creative Financial Services Limited on or about the 20th of June, 2008 at the Nigerian Stock Exchange Building Nos. 2/4 Customs Street Marina, Lagos in the Lagos Judicial Division stole and fraudulently converted the sum of N495,000,000 (Four Hundred and Ninety-Five Million Naira) the property of the Nigerian Stock Exchange.
STATEMENT OF OFFENCE:- 5TH COUNT
Conspired to commit a felony to wit stealing contrary to Section 516 of the Criminal Code of Lagos State, Cap C17, Vol. 2 Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
Ndi Okereke-Onyuike “F”, Lance Elakama “M” (officers of the Nigerian Stock Exchange) and OPDC Properties Limited on or about the 20th of June, 2008 at the Nigerian Stock Exchange Building Nos. 2/4 Customs Street Marina, Lagos in the Lagos Judicial Division with intent to defraud conspired to commit felony to wit: stealing the sum of N285,000,000 (Two Hundred and Eighty-Five Million Naira) the property of the Nigerian Stock Exchange.
STATEMENT OF OFFENCE:- 6TH COUNT
Stealing contrary to Section 390(7) of the Criminal Code Cap. C17, Vol. 2 Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
Professor Ndi Okereke-Onyuike “F”, Lance Elakama “M” (officers of the Nigerian Stock Exchange) and Creative Financial Services Limited on or about the 20th of June, 2008 at the Nigerian Stock Exchange Building Nos. 2/4 Customs Street Marina, Lagos in the Lagos Judicial Division stole and fraudulently converted the sum of N285,000,000 (Two Hundred and Eighty-Five Million Naira) the property of the Nigerian Stock Exchange.
STATEMENT OF OFFENCE:- 7TH COUNT
Conspiracy to commit a felony to wit stealing contrary to Section 516 of the Criminal Code of Lagos State, Cap C17, Vol. 2 Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
Ndi Okereke-Onyuike “F”, Lance Elakama “M” (officers of the Nigerian Stock Exchange) and Oak Business and Finance Company Limited on or about the 20th of June, 2008 at the Nigerian Stock Exchange Building Nos. 2/4 Customs Street Marina, Lagos in the Lagos Judicial Division with intent to defraud conspired to commit felony to wit: stealing the sum of N265,000,000 (Two Hundred and Sixty-Five Million Naira only) the property of the Nigerian Stock Exchange.
STATEMENT OF OFFENCE:- 8TH COUNT
Stealing contrary to Section 390(7) of the Criminal Code Cap. C17, Vol. 2 Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
Professor Ndi Okereke-Onyuike “F”, Lance Elakama “M” (officers of the Nigerian Stock Exchange) and Oak Business and Finance Company Limited on or about the 20th of June, 2008 at the Nigerian Stock Exchange Building Nos. 2/4 Customs Street Marina, Lagos in the Lagos Judicial Division stole and fraudulently converted the sum of N265,000,000 (Two Hundred and Sixty-Five Million Naira only) the property of the Nigerian Stock Exchange.”
The Appellant challenges the count of charges and describes them as a gamble. In the case of Mohammed Sani Abacha & Ors. v. State (2002) 11 NWLR (Pt. 779) 437 @ 486 the Apex court per Belgore, JSC stated what a confused count of charges read like
“The information as laid is therefore to my mind very defective indeed. It is a muddle, confusion. The information as laid I repeat is inherently defective and bad in material particulars. Whoever drafted it must have been in a confused state of mind. Without looking at or reading the proofs of evidence one can easily come to the irresistible conclusion that the prosecution or the respondent is gamble. It does not appear to know who committed the murder and who to charge in this case. And if it does, the information does not point to that direction…. The Respondent must not be allowed to gamble. Prosecution is not a game of chess! If I may ask, where are these Mohammed Abdul a.k.a. Katako and Aminu Mohammed? If they exist, have they been charged in a Court of law? There is no indication anywhere. There is no doubt that they could among others be the murderers of Kudirat Abiola (f) as stated in counts 3 & 4? Joinder of all the 4-counts in a single information is not proper being offences committed individually by three sets of people that have nothing to do with one another… The information is clearly misleading, embarrassing as well as uncertain to say the least. It must therefore not be allowed to stand.”
Do the counts of charges against the Appellant in this appeal fit into the description as made by Belgore, JSC (as he then was)?.
By the records for this appeal starting from pages 1 to 34, there are copiously compiled names of the parties, followed by the eight counts of charges raised against the Appellant and other defendants. In each count all of which have been reproduced in this judgment, the name of the Appellant is stated and so are the particulars of the alleged offence.
Also following from page 9 are the proofs of evidence with a list of Exhibits cited by each count of the charge. (Page 12 of the records referred).
Witness statement comes next from page 14 at which Fidelis Imiebiakhe male, Nigerian citizen and principal manager of Nigerian Stock Exchange and Funso Fatobi, Male, Nigerian Citizen and General Manager and Head of Strategy and Business Development Directorate of the Nigerian Stock Exchange, have made statements in which the Appellant is mentioned in material particulars.
At the stage of proffering charges against an accused, these constitute sufficient prima facie materials upon which a court may grant leave to the prosecution. The learned senior Counsel for the Appellant cited the case of Abacha as authority in support of the submission that the charges against the Appellant constitute a gamble, being confused.
I find none of the features highlighted in the Abacha’s case in this appeal. The counts are clearly and succinctly stated, the persons involved are clearly identified and the specific allegation against each meticulously stated. No doubt, the learned counsel who drafted these counts of charges did so with a clear mind unlike that of the Abacha’s case. By no standard can these counts of charges be described as a muddle, confusion. I fail to find where the prosecution gambled in the sense of being unsure of the facts they have assembled, collated and put together as different counts of charges against the persons identified and particularly against the Appellant. The Appellant was clearly identified, her office stated and the reason for the allegations against her are clearly stated. The association of the Appellant with the other persons charged are also clearly stated prima facie by the exhibit annexed.
I find no confusion in the allegations made against the Appellant.
Issue four
The learned Silk for the Appellant submits that the office of the Attorney-General is a creation of the Constitution as the Chief Law Officer of the state, is an office of a public trust with a lot of powers and responsibilities but not without check and restriction in the exercise of the prosecutorial powers to prevent abuse of court process. (Section 195(1), 211(3) of the Constitution, INEC v. Onwuka Kalu EPR Vol. 1 (2004) 386 @ 397 & 400, Uwazuruike v. A-G. Fed. (2008) 10 NWLR (Pt. 1096) 444 @ 465, Dingyadi v. INEC No. 1 (2010) 18 NWLR (Pt. 1224) 1 @ 74.
Also submits that the trial court misapplied the law when it held that the discretion of the Attorney-General in criminal prosecution is without any qualification. That the courts are precluded from independently construing statutory provisions, therefore court of law should interpret legislation as a whole as conjunctively interpreting Sections 36 & 211 of the Constitution (pages 199-200 of the record of proceeding, Section 211(1) of the Constitution, Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 @ 316)
That Section 211(1) when interpreted conjunctively with Section 36 & 211(3) of the Constitution which will show that the charge before the trial court was one outside the anticipation of Section 211(3) & 36 of the Constitution. That the trial court further relied on Section 74(7) ACJL, to hold that the Attorney-General of Lagos State has unguarded discretion to institute criminal prosecution and that if that interpretation is correct, then by virtue of Section 1(1) & (3) of the Constitution, Section 74(7) ACJL is inconsistent with Section 211(3) & 36 of the Constitution and is therefore void to the extent of its inconsistency. (Refer A-G Abia v. A-G Fed. 12 NWLR (Pt. 727) 396-397)
In reply to the 1st Respondent’s argument on this issue, the learned Silk said it is settled beyond any allowance for judicial challenge or exercise of discretion that statutory provisions must be interpreted as a whole in order to give effect to the global objective and intention of the legislature as criminal prosecution carries higher decree of application of the doctrine of fair hearing and that Sections 36 & 211 of the Constitution must be read conjunctively. Refer Anoh & Ors v. Hirnyam (1997) 2 NWLR (Pt. 486) 174 @ 188. It is Counsel’s further argument that the case of State v. Ilori heavily relied upon by the 1st Respondent is not helpful to this case as the issue in question was on the exercise of nolle prosequi and the liberty of citizen was not in contention.
Counsel also argue that the A-G has liberty to institute criminal proceedings but the court must ensure that the condition precedent for instituting criminal proceedings are followed as it is the court’s responsibility to prevent accused persons from going through the rigours of defending incompetent criminal charges. Refers Abacha v. State (2002) 5 NWLR (Pt. 761) 638, Grange v. FRN (2010) 7 NWLR (Pt. 1192) 135, Adukwu v. FRN (2000) 9 NWLR (Pt. 1146) 370, Uhwovoiriole v. FRN (2003) 2 NWLR (Pt. 803) 176, Ubanatu v. C.O.P. (2000) 2 NWLR (Pt. 643) 115, Alhaji Balarabe Musa v. Speaker, Kaduna State House of Assembly & Anor (1982) 3 NCLR Vol. 3, Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423, Obi v. Balonwu & Ors. (2007) 5 NWLR (Pt. 1028) 488.
The 1st Respondent’s senior Counsel cites Section 211(1) of the Constitution and the case of Emeakayi v. Commissioner of Police (2004) 4 NWLR (Pt. 862) to the effect that the Attorney-General can exercise his prosecutorial powers before any court of law and or any tribunal save a court martial in Nigeria. These powers can be exercised by him or through officers of his department. In exercise of these powers the A-G shall have regard to public interest, the interest of justice and need to prevent abuse of legal process.
The learned senior Counsel also submits that the provisions of Section 211(1)(2) & (3) are clear and unambiguous and need not be read conjunctively with Section 36 as contended by the Appellant as it deals with a separate matter from that of Section 211 both of the Constitution. That the provisions must be read in their plain and ordinary words which best give their meaning. (Ifezue v. Mbadugha (1984) 1 SCNLR 427, A-G Ondo State v. A-G Federation (2002) 9 NWLR (Pt. 772) 222 @ 418).
The learned Silk SG further submits that contrary to the Appellant’s contention, the court has no such power to control the manner the A-G exercises his prosecutorial power as conferred by the Constitution. Counsel places reliance on the case of State v. Ilori (1983) 1 SCNLR 94 where the Supreme Court interpreted the scope of Section 191(3) of the 1979 Constitution which is impari material with Section 211(3) of the 1999 Constitution. (Julius v. Loed Bishop of Oxford (1880) 5 A.C. (ILL) 214 @ pg.222).
I am, with utmost respect to the learned SAN for the Appellant, unable to decipher from the relevant provisions of the law; notably Section 36, Section 211 of the Constitution, Section 4 of the Police Act and Section 74 of the ACJL which subject the power of the Hon. A-G to prosecute to the fact of investigation by the Police, that non-investigating renders incompetent, or divests a court of jurisdiction to hear an application from the Hon. A-G because the police has not carried out investigation on the information filed. It seems to be an attempt to control the Constitutional powers of the Hon. A-G. Section 211 of the Constitution confers on the Hon. A-G of a State total control with the initiation, take over, continuation of criminal prosecution in the state. (See State v. Ilori (1983)).
In addressing this issue the learned trial Judge found that:-
“… unaware of any provision either in the Police Act or Administration of Criminal Justice Law of Lagos State, 2011 or in any other statute having force within Lagos that makes it incumbent on the A-G of Lagos State to file an information only in respect of allegations that have been investigated by the Police. Indeed Section 211 of the 1999 Constitution of the FRN empowers the A-G of a state 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 House of Assembly and… The courts have held that this provision invests the A-G of a State with the absolute responsibility for and control of the conduct of criminal prosecutions within the… See Controller Nigerian Prison Service v. Adekanye (2002) 15 NWLR (Pt. 790) 318, Emeakayi v. Commissioner of Police (2004) 4 NWLR (Pt. 862) 158.
What these provision mean is that the decision to prosecute or not to prosecute is at the discretion of the A-G of a State. This court therefore cannot question the authority of the A-G of the State on how or when the A-G will exercise the discretion. The Queen v. Minister of Land & Survey (1963) All NLR 564, and Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) 797.
It is noted that learned senior Counsel for the defendants duly relied on the provisions of Section 74(1-4) of the Administration of Criminal Justice Law of Lagos State 2011, but failed to take cognisance in his submission of subsection (7) of that same Section. Section 74(7) provides as follows:-… In effect the A-G of Lagos State is not bound to await a Police investigation or receive a Police report or issue a Legal advice before filing an information before the High Court as done in the instant case and thus the information filed against the defendants cannot be quashed on that ground…”
I agree.
Nowhere has prior investigation been clothed with the status of condition precedent for the exercise of the power of the Hon. A-G of the State in the initiation of prosecution. I am accordingly unable to apply by extension that imagined disability to the court. The case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 cited by the learned SAN is totally alien to the situation under consideration.
Upon the authority of Gani Fawehinmi v. IGP (2002) 7 NWLR (Pt. 767) @ 606, 607 @ 671; the learned senior Counsel for the 1st Respondent Pedro Lawal SAN, likens the decision of the Hon. A-G to initiate proceedings in exercise of his constitutional powers, to the discretion of the Police not to conduct an investigation. The learned SG cites Section 74 of the ACJL as supporting the constitutional powers and discretion of the A-G to initiate prosecution without reference to the Police. Indeed, it is the Hon. A-G of the state who is vested with the power to control prosecution initiated by his office or by any other authority (including the Police).
What constitutes investigation?
Investigation actually means analysis, scrutiny, examination inter alia, it appears this is exactly what the A-G does with reports sent to his office for legal advice.
Interrogation is in fact what the Police are charged with responsibility to do, which is just a part of investigation and can be under taken at any time during the trial. It is the examination and scrutiny of facts collected and available to the A-G which informs his decision to initiate proceedings, take over and continue or discontinue criminal proceedings.
There was therefore no jurisdiction divesting features on the trial court from hearing and determining the application of the Hon. A-G to prefer charges against the Appellant. The cases of Onogoruwa v. State (1993) 7 NWLR (Pt. 303) 49 @ 107 etc were not authorities on the issue before the court. The alarmist cry of learned SAN of the trial court reposing totalitarian powers on the Hon. A-G is also without a legal fortress. The reasons are numerous; the Appellant has not been arraigned and when arraigned, the Appellant has constitutionally enshrined right first to remain silent, and if she elects to speak, to time for the preparation of defence. See Section 35 & 36 (6) (b)-(e) of the Constitution.
There is a need for us to recognize the fine, indeed very fine line/divide that exists between the responsibility of the Hon. A-G of Lagos State to ensure the existence of law and order in the state (Section 211 (1-3) 1999 Constitution) and the discretion of the Police authority to refrain from investigation as it deems fit.
Is there any inconsistency between the power of the A-G to initiate prosecution and the discretion of the police to investigation?
The power of the A-G to initiate prosecutions of necessity entails the collection of facts which will constitute the ingredients of the offences requiring the initiation of prosecution. The authority to initiate prosecution necessarily involves the assessment and evaluation of facts collected. It is the court which then gives adjudicatory (“substance”/character to the sets of facts of necessity,) some kind of temporary adjudicatory stamp as leave to proceed. The said leave to prefer charges is granted upon the disclosure of a prima facie case. It means no more than that on the face value of the facts put before the court, there is good reason to proceed. (See also MOHAMMED SANI ABACHA & ORS. v. THE STATE (2002) 11 NWLR (Pt. 779) 437, FIDELIS UBANATU v. THE COMMISSIONER OF POLICE (2000) 1 SC 30).
No doubt, a criminal trial is all involved and in fact dreadful with all attendant stigma following. The facts to be relied upon to grant the judicial nod for further adjudication must therefore present some elements of substance. The case of Milton P. Ohwovoriole, SAN v. FRN & ORS (2003) 1 SC (Pt. 1) p.1 @ 7, gives an inkling to the substance expected in a proof of evidence which should move the discretion of a learned Judge to grant leave to prefer a charge. I crave the indulgence to quote extensor, the lead Judgment of Kalgo, JSC as follows:-
“there is no doubt that the learned trial Judge has the discretion to grant or refuse leave to prefer the charge but the discretion, as usual, must be exercised judicially and judiciously. In that exercise, he must ensure that he has taken into consideration all the materials placed before him including the relevant law applicable thereto. See U.B.A. Limited v. Stahibu GMBH & Co. KG (1989) 6 S.C. (Pt. 1) 22; (1989) 3 NWLR (Pt. 110) 374.
In the instant case, the relevant materials placed before the trial Judge for the exercise of his discretion are his proofs of evidence and the written caution statement of the accused persons. These are contained in the 1st volume of the record of appeal from pages 6-28. The so-called proof of evidence on pages 6 and 7 of the record contained the name of 6 witnesses and merely stated what each witness was going to testify at the trial. In none of them was it shown that the appellant was involved in conspiring to offer the alleged bribe of 3.5 million or that he actually gave the said amount as bribe to anybody. Also, on the caution statements of the accused persons including the appellants on pages 9-28, none of the 3 accused persons now respondents 2, 3 and 4, said in his statement that the appellant was involved in any discussion or agreement with him to give the N3.5 million bribe or took part in actual giving of the said bribe, any person as alleged in the charge. It was true that the 3rd respondent stated in his statement that the appellant was their counsel in the matter, and no more. The appellant, in his own statement did not deny that the 3rd respondent was his client in the matter, but he vehemently denied that he discussed the issue of the N3.5 million with anybody and his client did not at any time inform him that he gave the said amount to anybody in connection with this matter. The appellant also denied discussing the issue of the N3.5 million with one Chief Adefulu whom he wanted to tarnish his character and image as the reason for framing him in this matter.”
Section 211 of the Constitution endows a resourceful A-G with limitless powers to institute and undertake, take over and continue and or to discontinue at any stage before judgment is delivered any criminal proceedings instituted or undertaking by him or any other authority or person before any court except one before a court martial. Section 211(3) states the guiding principles for the exercise of this enormous powers reposed with the A-G these are:
(i) public interest,
(ii) the interest of justice
and
(iii) the need to prevent abuse of legal process-
these must inform the manner in which the A-G exercise these powers.
It has not been shown that the A-G of Lagos State was not properly guided by the provision of Section 211(3) in preferring charges against the Appellant.
I find this appeal as appallingly lacking in merit and is hereby dismissed. The Appellant should present herself before the trial court for arraignment as ordered by the learned trial Judge.
CHIMA CENTUS NWEZE, J.C.A.: I agree.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: The appeal is from a Ruling of the High Court of Justice of Lagos State (Criminal Division) sitting in Lagos Judicial Division (the court below) overruling the appellant’s preliminary objection to the propriety of the criminal information containing eight count charge of conspiracy and theft of public fund totalled N1.5 billion (One Billion, Five Hundred Million Naira) belonging to the Nigerian Stock Exchange contrary to Sections 390(7) and 516 of the Criminal Code, respectively, laid against the appellant and five others by the respondent at the court below.
I gratefully adopt the summary of the facts and the written case of the parties ably stated in the judgment of my respected learned brother, Dongban-Mensem, J.C.A., for the discourse.
Investigation of a crime involves the systematic assembling of evidence either openly or clandestinely or both. In high-profile cases the investigation is usually hush-hush or discreet. The witness statements of the two potential witnesses and some documentary evidence in form of cheques amounting to N1.5 billion paid to the 2nd-3rd and 5th-6th respondents by the N.S.E. which are part of the proof of evidence exemplify product of investigation. So to contend that the case was not investigated, yet the Attorney-General of Lagos state proceeded on a hunch (so to say) to initiate the prosecution of the appellant and the 2nd-6th respondents at the court below would be untenable, in my view.
I think the appropriate time to take objection to improperly or illegally obtained evidence should be at the hearing of the case when the prosecution applies to put in evidence the improperly or illegally obtained evidence. See Sections 14 and 15 of the Evidence Act, 2011, and the apt Canadian Supreme Court case of Queen v. Wray (1971) S.C.R. 272 where the majority judgment of Martland, J., with Fauteux, Abbott, Richie, and Pigeon, JJ., concurring held inter alia that the unfair methods of collecting/assembling evidence for a criminal trial should never be the basis of exclusion of such evidence from the criminal trial, if the evidence so illegally collected is material and/or of substantial weight to the case in question.
In my modest view, the evidence obtained by the Attorney-General of Lagos State from the Nigerian Stock Exchange (N.S.E.) to initiate the prosecution of the appellant at the court below, though not obtained from the Police as should normally be the case, cannot be a matter to be agitated at the preliminary stage of the criminal proceeding. Because it involves the assessment of the probative value and/or integrity of the pieces of evidence by the trial court at the time the evidence is placed before it as evidence against an accused.
I most respectfully hold that it was not ripe to consider at the preliminary stage of the proceeding whether the Attorney-General could use evidence procured from another source, other than from Police investigation, to undertake the prosecution of the appellant at the court below.
Legal personality is no longer an issue of jurisdiction. It is now a question of fact requiring leave of the court to raise and argue it as a ground of appeal. See Contractors Resources Nigeria Limited v. Standard Trust Bank Limited (2013) 6 NWLR (Pt. 1350) 261 at 275 (letter D) as follows –
“The question of proof of juristic personality is a matter of fact and evidence. The issue was neither raised at the court of first instance, nor canvassed at the Court of Appeal. With same not being jurisdictional, the leave of either the lower court or this court ought first to have been sought and obtained before the appellant could argue same as a competent ground of appeal. See the case of Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) page 319 at 334.”
Having not raised the issue at the court below, and having not obtained leave of the Court to argue it as a ground of appeal, the arguments on it are incompetent.
Be that as it may and at the risk of caution, I proceed to delve into the issue of juristic personality, in the event I am held wrong elsewhere on the incompetence of the arguments on the question of legal personality.
I think legal personality is a by-product of legal fiction created by legislation or the common law. See Salmond on Jurisprudence (12th Edition) page 306 by P. J. Fitzgerald thus –
“Legal persons, being the arbitrary creations of the law, may be of as many kinds as the law pleases.”
It follows that an enactment can create an indeterminate group of persons or even inanimate objects juristic persons that may sue or be sued eo nomine, as prescribed by the enactment. See Fawehinmi v. N.B.A. (No. 2) (1989) 2 NWLR (Pt. 105) 558 at 596 and 649, Solicitor-General Western Nigeria v. Adedoyin and Ors. (1973) 3 U.I.L.R. (Pt. 1) 143 at 149-150, Unipetrol Nigeria Plc v. Edo State Board of Internal Revenue (2006) 8 NWLR (Pt. 983) 624 at 631, on the latitude and competence of the Legislature to endow legal personality on animate or inanimate entities.
There is the extreme case of Mullick v. Mullick (1925) L.R. 52 Ind. App. 245, cited by Salmond in his book on Jurisprudence (supra) on pages 298-299, where the Privy Council sitting on appeal in a case from India approved/recognized Hindu Law that gave family idols legal personality to sue and be sued eo nomine in respect to spiritual purposes.
The American case of Sierra Club v. Rogers Clark Ballard Morton, Secretary of Interior, et al, (1972) 403 U.S. 727, an environment or conservation case, also illustrates the legal position that the categories of legal personae are open or infinite. There Douglas, Associate Justice of the United States Supreme Court, joined his learned colleagues Brennan and Blackmun, Associate Justices of the Supreme Court, in apt dissent to extend the category of legal personality to environmentalists for them to sue in the name of the object sought to be protected, as in other proprietary, spiritual or charitable causes, in these words –
“The river, for example, is the living symbol of all the life it sustains or nourishes – fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water – whether it be a fisherman, a canoeist, a zoologist, or a logger – must be able to speak for the values which the river represents and which are threatened with destruction …”
(My emphasis).
There is the adage that the voice of the people is the voice of God (vox populous vox dues, in Latin). The emphasis is therefore on the ‘People’ as the legitimate authority of a democratic system of government. An example where the “people” has been used to prosecute a defendant is the case of The People v. Cassey (No. 2) (1963) I.R. 33, that emanated from Ireland, a commonwealth country as Nigeria. See similiter People v. Palmer (CA 1984) 154 CA3d 79, 85-89 (203 CR 474); People v. West (CA 1983) 139 CA3d (189 CR 36, 37-38).
There is therefore force in the contention of the learned senior counsel for the 1st respondent, Mr. Pedro, (Solicitor General of Lagos State), that the information was properly laid against the appellant in the name of the “People of Lagos State” under the statutory authority of Section 253 of Law No. 10 of 2007.
Section 260(2) of Laws No. 10 of 2011 provides –
“An objection to the sufficiency of evidence disclosed in the proof of evidence attached to the information, shall not be raised before the close of the prosecution’s case.”
The foundation of criminal justice in Nigeria is based on the presumption of innocence of an accused. Section 36(5) of the 1999 Constitution enshrines in this wise –
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”.
By extension and/or plain implication, Section 35(1)(c) of the 1999 Constitution requires that an accused be brought to court upon reasonable suspicion of having committed a criminal offence.
Both Sections 35(1)(c) and 36(5) of the 1999 Constitution (supra) are entrenched provisions under Chapter IV therefore dealing with fundamental rights. This is to ensure the said constitutional provisions are not easily amended by the National Assembly, as they are the bastion of the rule of law safe-guarding the rights of an accused from capricious, arbitrary or oppressive operation of the machinery of criminal justice by the prosecuting authority.
An accused should, therefore, be entitled to challenge head-on prima facie insufficiency of proof of evidence against him before plea is taken to the charge. It has to be so, because the ordeal of a criminal trial with the accompanying traumatic psychological impact on an accused should not be allowed to proceed on porous or insufficient prima facie proof of evidence.
In my respectful opinion Section 260(2) of Law No. 10 of 2011 is draconian and inconsistent with Sections 35(1)(c) and 36(5) of the 1999 Constitution. I would agree with the learned senior counsel for the appellant, Mr. Olanipekun, that by the supreme provision of Section 1(1) and (3) of the 1999 Constitution, the inconsistent provision of Section 260(2) of Law No. 10 of 2011 is unconstitutional. I hereby declare it null and void to the extent of its inconsistency with Section 1(3) of the 1999 Constitution. See Olu of Warri v. Kperegbeyi (1994) 4 NWLR (Pt. 339) 416 at 437, Military Governor, Ondo State v. Adewunmi (1988) 3 NWLR (Pt. 82) 280 followed in Nigeria Breweries Plc v. The Governor of Oyo State and Ors. (2012) All FWLR (Pt. 627) 748 at 761.
The appellant’s major complaint is that she was not supplied in advance with the statements of the witnesses and the documentary evidence the 1st respondent intends to use at her trial contrary to her fundamental right to fair hearing/trial under Section 36(1) of the 1999 Constitution. The information was laid under Section 255(1) of Law No. 10 of 2007 (now section 251(1) of Law No. 10 of 2011). I desire to reproduce the portion thereof that is relevant to the discussion below –
“255(1) Where an information is exhibited in the High Court under the provisions of this Law, it shall set out –
(a) Proof of evidence;
(b) List of witnesses; and
(c) List of exhibit(s)”.
(My emphasis).
The answer to the appellant’s complaint was furnished by the Supreme Court, while construing a similar provision of the law on the same issue, in the very recent case of Federal Republic of Nigeria v. Senator Adolphus N. Wabara and Ors. (2013) 5 NWLR (Pt. 1347) 331 at 350, where his lordship, Musa Dattijo Muhammad, J.S.C., held in the lead judgment as follows –
“It is worth the while to know that proofs of evidence are not the same as the statements of the witnesses the appellant would call at the trial. Proofs of evidence are summaries of the statements of those witnesses to be called at trial by the appellant. … Even at the trial, the respondents, on the authorities, are only entitled access to the statements of the prosecution’s witnesses on the fulfillment of certain conditions.
In the case at hand where trial is yet to commence, indeed its competency is being challenged by the respondents, it is premature for respondents to assert any entitlement to the statements of witnesses. The affirmation of respondents entitlement to the witnesses statements by the court below depicts a sad misunderstanding of the decisions of this court, inter alia, in Gaji v. State (supra), Milton P. Ohwovoriole v. FRN (supra) and Ikomi v. The State (supra).”
(My emphasis).
The judgment of his lordship, Ibrahim Tanko Muhammad, J.S.C., who presided on the panel of the learned Justices of the Supreme Court in the case held on page 356 inter alia that –
“It is the holding of this court in Gaji v. The State (1975) NNLR 98 at 112 as reprinted (1975) 5 SC 61 at 83, inter alia, that;
“… it is not open at that stage (of granting leave to prefer charge) to an accused person to be invited into the scene moreover to be supplied with copies of the statements of potential witnesses”
(My emphasis)
While his lordship Aka’ah, J.S.C. stated in his judgment on page 359 that-
“It is not a right that the statements be made available to the accused, failing which the charge which the accused is facing must be quashed”.
(My emphasis)
Further, an accused person may demand for statements of witnesses at the trial of the case. See Layonu and Ors. v. The State (1967) NMLR 411 at 413-414. An accused may also fall back on the omnibus Section 36(6) of the 1999 Constitution to request a trial court for adequate time and facilities to prepare his defence in the case.
There was much talk about the alleged infraction of Section 36(1) of the 1999 Constitution by the 1st respondent. The said section deals with fair hearing respecting the determination of the civil rights and obligations (not the criminal rights and obligations) of a person. While Section 36(4) of the same Constitution deals specifically with fair hearing in criminal cases in these words –
“Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn be entitled to a fair hearing in public within a reasonable time by a court or tribunal”.
Going by the express literal and specific provision of Section 36(4) of the 1999 Constitution (supra), fair hearing for an accused person commences when he is charged to court or tribunal sitting in public, which does not extend to the process of investigation of a crime against an accused person.
The exception, however, is where an accused’s liberty is curtailed by an arrest or detention in the course of investigation of a crime, in which case the accused is entitled to be promptly informed in writing within twenty-four hours in a language he understands of the facts and grounds for his arrest or detention under Section 35(3) of the 1999 Constitution, which was not the case here, as the appellant was neither arrested nor detained by the 1st respondent before she was charged to court.
I have read the unreported Ruling in the case of F.R.N. v. Former Governor Bola Ahmed Tinubu in charge No.CCT/ABJ/01/11 delivered by the Code of Conduct Tribunal on 30-11-2011, but fairl to grasp its relevance to the present case for the sole reason that there the Tribunal was concerned inter alia with the interpretation of Section 3(d) of the Code of Conduct Tribunal Act which stipulated that an accused be confronted with the allegation against him before the complaint against him is filed at the Tribunal, which is not the case here as no such equivalent statutory provision was cited by the appellant who was neither arrested nor detained before the case against her was taken to court by the 1st respondent. Accordingly, I find no substance in the complaint of the appellant that she was denied fair hearing by the 1st respondent.
Paragraphs 13-17 of the first witness statement on page 15 of the record stated that –
“13. By a Memo dated June 12, 2008 the ADG sought and obtained the approval of the DG for the payment of the sum of N1,500,000,000 (One Billion, Five Hundred Million Naira) for Market Development for emerging market.
14. Following the approval of the memo, a payment voucher in the sum of N1,527,000,000 (One Billion, Five Hundred and Twenty-Seven Million Naira) dated 20th June, 2008 with number 0024462 was issued and approved by the ADG.
15. Subsequent to the approval, a First Bank cheque No. 0189114 in the sum of N1,527,000,000 (One Billion, Five Hundred and Twenty Seven-Million Naira) was issued and paid.
16. On the reverse side of the cheque was an instruction for the issuance of Banker’s Cheques in favour of the following companies:
(i) Creative Financial Services Limited – N495,000,000 (Four Hundred Ninety-Five Million Naira);
(ii) Mining Systems Limited – N455,000,000 (Four Hundred and Fifty Five Million Naira);
(iii) OPDC Properties Limited – N285,000,000 (Two Hundred and Eighty Five Million Naira);
(iv) Oak Business and Finance Company Limited – N265,000,000 (Two Hundred and Sixty-Five Million Naira)
17. In compliance with the instruction, the banker’s cheques were paid to the above listed companies in the various sums.”
While paragraphs 4-15 of the second witness statement on pages 17-19 of the record stated that –
“4. I was employed at the Nigerian Stock Exchange from January 2003 as Principal Manager, General Administration/Human Capital and rose to become the Deputy General Manager and Head of Strategy and Business Development Directorate of the Nigerian Stock Exchange.
5. Between October 2008 and October 2010, I was the Deputy General Manager/Head of the Emerging Market Department.
6. My responsibility as the Deputy General Manager/Head of the Emerging Market Department was to develop the emerging market and increase the number of companies quoted on the emerging market platform of the Nigerian Stock Exchange.
7. While I was the Deputy General Manager/Head of the Engineering Market Department, I had access to the records of activities of the Department.
8. During my period as Deputy General Manager of the above-mentioned department, I reviewed the records of the department and l found out that there was no record of any activities, programmes, events, or initiatives in the area of market development that involved the expenditure of the sum of N1,500,000,000 (One Billion, Five Hundred Million Naira).
9. I saw the Memo dated June 12, 2008 from the then Assistant Director General of the Exchange (Mr. Lance Musa Elakama) to the DG/CEO (Prof. (Mrs.) Ndi Okereke-Onyuike) seeking her approval for payment of the sum of N1,500,000,000 for market development for emerging market.
10. The Memo was not supported by any proposal from any firm or company or any list of expenses outlining the proposed work to be done and the details of the market development or expenses.
11. The standard practice is that any Memo seeking approval for a job or proposal or expenses will be supported by a proposal, submission or a list of expenses by the proponent. In the instant case, there was none because in actual fact there was a market development.
12. I also observed that the Memo was approved by the Prof. (Mrs.) Ndi Okereke-Onyuike as evidenced by her signature of the Memo. As a senior management employee, I am familiar with his signature.
13. I also saw the Payment Voucher dated 20th of June, 2008 which was duly approved for payment of the sum of N1,527,000,000 by the former ADG, Mr. Lance Elakama on the 20th of June, 2008 as shown by his signature. As a senior management employee, I am also familiar with his signature.
14. I also saw the First Bank Cheque No. 0189114 issued in favour of First Bank with an instruction on the reverse side signed by the former ADG, Mr. Lance Elakama for the issuance of Bankers Cheque in favour for the following companies:
(i) Creative Financial Services Limited N495,000,000 (Four Hundred and Ninety-Five Million Naira);
(ii) Mining Systems Limited N455,000,000 (Four Hundred and Fifty-Five Million Naira);
(iii) OPDC Properties Limited – N285,000,000 (Two Hundred and Eighty-Five Million Naira);
(iv) Oak Business and Finance Company Limited – N265,000,000 (Two Hundred and Sixty-Five Million Naira).
15. I know that none of the above named companies rendered any service to the Nigerian Stock Exchange relating to market development for emerging market or any other services and therefore there was no basis for directing that banker’s cheque should be issued in their favour.”
On the face of the proof of evidence adverted to above, appellant and the 2nd-6th respondents are variously linked with the eight (8) count charge of conspiracy to steal and outright stealing of the various sums of money aggregating N1.5 billion belonging to the N.S.E., as stated in the eight count charge in question, which is an alleged crime striking at the root of the investor sector of the economy of the nation. At that stage of the proceedings, one is not required or expected to probe deep or use a tooth-comb to gauge the strength of the materials marshalled by the prosecution to amount a charge an accused.
In other words, a glance at the proof of evidence disclosed that the sum of N1.5 billion which was siphoned from the coffer of the N.S.E. ended in the hands of the appellant and the 4th respondent, top employees of the N.S.E. at the material time, under the guise of phoney contracts awarded by the N.S.E. with their approval, to 2nd, 3rd, 5th and 6th respondents which are companies in which the appellant and the 4th respondent variously have financial interest as director/shareholder. See Federal Republic of Nigeria v. Senator Adolphus N. Wabara and Ors. (supra) at 358.
In my respectful view, the court below properly exercised its discretion in the matter and was quite right to hold that the proof of evidence disclosed at first sight or prima facie a case against the appellant and the 2nd-6th respondents, indicating they have something to explain at the trial respecting the alleged stolen sum of N1.5 billion.
It is for these reasons and for the succinct reasons given by my learned brother, Dongban-Mensem, J.C.A., that I find no merit in the appeal and hereby dismiss it and uphold the impressive Ruling of the court below (Balogun, J.) refusing the request of the appellant to quash the eight count charge against her.
The other appeals: CA/L/306A/2012 (Lance Elakama), CA/L/306B/2012 (Oak Business and Finance Company Limited), CA/L/306C/2012 (Mining System Limited), CA/L/306D/2012 (OPDC Properties Limited), CA/L/306E/2012 (Creative Finance Services Limited), CA/L/307/2012 (Ndi Okereke-Onyuike), CA/L/307A/2012 (Lance Elakama), CA/L/307B (Kingdom Securities Limited), CA/L/307C/2012 (Uzoma Henry Onyekuru) were agreed upon by learned senior counsel on both sides of the divide to abide the outcome of the appellant’s appeal No. CA/L/306/2012; consequently the appeals listed above also have no substance and are hereby dismissed by me. I too order that the trial of the appellants commence before the court below (Balogun, J.). I commend Chief Olanipekun, learned SAN for the appellant, and Mr. Pedro, learned SAN for the 1st respondent, for the incisive briefs settled by them in respect of the appeal.
OBANDE FESTUS OGBUINYA, J.C.A.: I have had the benefit of reading, in advance, the judgment delivered by my learned brother, M. B. Dongban-Mensem, JCA, and I endorse, in toto, the reasons and conclusions encapsulated therein.
In very inviting submissions, the appellant stripped the respondent of legal personality. However, the appellant is not oblivious of fact that the respondent is a creature of a statute. The provision of Section 253 of the Administration of Criminal Justice Law of Lagos State, 2007, expressly, gave birth to the respondent. On this score, the said Law has, in the eyes of the law, decked the respondent with an enviable status of legal persona, with the concomitant rights to sue and be sued in the law courts. This cardinal principle of law has received the imprimatur of the Supreme Court in sea of judicial authorities, see Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558; Agbomagbe Bank v. General Manager, G.B. Ollivant Ltd (1961) All NLR 116/(1961) 2 SCNLR 317; Ataguba & Co. Ltd. v. Gura (Nig.) Ltd. (2005) 8 NWLR (Pt. 927) 429; A-G., Anambra State v. A-G, Fed. (2007) 12 NWLR (Pt. 1047) 1; Admin/Exec., Estate; Abacha v. Eke-Spiff (supra)/(2009) 7 NWLR (Pt. 1139) 97; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317. This extant position of the law deflate the seemingly, alluring argument of the appellant on this critical point. It will, therefore, constitute a defilement of the law to describe the respondent as a destitute of legal entity. On this premise, I am inclined, in due obeisance to the law, to crown the respondent with the toga of juristic personality.
The appellant, during the oral argument, castigated the said Law, the interpretation of which is the cynosure of this appeal, as a legislative judgment. In the case of A-G, Adamawa State v. A-G Fed. (2005) 18 NWLR (Pt. 958) 581 at 666, Pats-Acholonu, JSC (of the blessed memory), graphically, captured the purport of legislative judgment thus:
It is an enactment by the legislative wearing the garb or having a colouration or flavour of conviction (the legislature transmuting itself more or less into a court) of a person while exercising its legislative functions.
It flows, that a legislative judgment connotes a statute, promulgated by any level of the legislature, which is targeted against a particular person(s), usually named therein, without any nexus with the general community. Legislative judgment is hostile to the law in the sense that it impinges on the hallowed doctrine of separation of powers, firmly, entrenched in the 1999 Constitution, as amended. Hence, the law gives the courts the unbridled licence to mow down legislative judgments.
Thus, in the celebrated case of Lakanmi v. A-G, Western States (1971) 4 UILR 201, the Supreme Court was confronted with the interpretation of the Forfeiture of Assets etc (Validation) Decree No. 45 of 1968. The court, eventually, styled the Decree a statutory judgment in that it imposed sentences, in the form of attachment of property of specified public officers, on the appellant and others, without their appearance in court.
I have, painstakingly and assiduously, searched the entire length and breadth of the said wordy Law, which is sought to be impugned, with the judicial lens of a court. At the same time, I have situated the prescriptions of the Law with the attributes of statutory judgment displayed above. I am unable to see, even with an eagle eye of a court, a provision therein which is directed at the appellant or any other persons(s) so as to bring it, the Law, within the four walls of the negative features of legislative judgment. Contrariwise, I see it as a revolutionary enactment which is intended to overhaul and fast track the dispensation of justice in Lagos State. The operation of the law is not spent on the appellant, but meant for the entire populace of Lagos State. The Law does not, therefore, deserve the caustic appellation and strictures passed on it by the appellant. It is, totally, divorced from statutory judgment. In the end, I turn down the appellant’s invitation to label Law as a legislative judgment for want of legal justification.
It is for these reasons, coupled with detailed ones assembled in the leading judgment, that I, too, visit dismissal on the appeal with the same orders made therein.
TIJJANI ABUBAKAR, J.C.A.: The Attorney-General of Lagos State, acting on behalf of the people of Lagos State, filed information dated 23rd May, 2011, against the Appellant, Ndi Okereke Onyuike, and other defendants on various counts of offences of stealing and conspiracy to commit felony.
The appellant said the charge against her was not served on her and she had no slightest hint that there was investigation going on and she was neither confronted nor granted opportunity to answer any of the allegations against her. Appellant said she only stumbled across the allegations on the pages of newspapers specifically vanguard Newspapers of 13th July, 2011.
The said publication prompted appellant to conduct search which eventually disclosed pendency of eight count charge against her and other defendants before the Lagos State High Court presided over by Balogun j.
The Appellant therefore filed notice of preliminary objection dated 29th September, 2011 challenging the jurisdiction of the lower court, the court heard and dismissed appellants preliminary objection in a ruling delivered on 23rd March, 2012.
The appellant became aggrieved and therefore filed notice of appeal dated 4th April, 2012, against the said ruling. The notice of appeal contains twelve grounds of appeal;
The relevant briefs of argument in this appeal are therefore as follows:
1. Appellants brief of argument dated 11th May, 2012, filed same day, settled by learned senior counsel for the appellant Chief Wole Olanipekun, SAN.
2. 1st Respondents written brief of argument, dated and filed on 7th November, 2012, settled by learned senior counsel for the first Respondent Lawal Pedro SAN.
3. Appellants reply brief of argument dated 7th December, 2012 filed on 12 December, also settled by learned senior counsel Chief Wole Olanipekun, SAN for the appellant.
Learned senior counsel for the appellant crafted five issues for determination from appellants 12 grounds of appeal. Appellants issues for determination are therefore as follows.
1. Whether the 1st Respondent is a competent entity that can prefer charges against the Appellant (Ground 1).
2. Whether the charge before the lower court was/is incompetent and vitiated by non satisfaction of a condition precedent and breach of Appellants right to fair hearing (Ground 2, 3, 4, 5 and 8).
3. Considering the terse contents of the charge filed before the lower court, and the scant documents attached as pr.oof of evidence, whether the jurisdiction of the lower court was properly activated to entertain a criminal trial. (Grounds 6, 7 and 12).
4. Whether the prosecutorial powers of the Attorney General of a state are unqualified, and not limited by Section 211 (3) of the 1999 Constitution of the Federal Republic of Nigeria and which said Constitutional provisions are superior to any other law, which that any law which is inconsistent with the said Constitutional provisions void to the extent of its inconsistencies (Grounds 9 & 11).
5. Whether the lower court was right to approve of the use before it and material evidence which are subject of restraining orders of courts of coordinate jurisdiction (Ground 10).
Learned senior counsel for the Appellants argued the above issues in appellant’s brief of argument.
Learned senior counsel for the first Respondent Lawal Pedro, SAN, adopted the five issues for determination formulated by the Appellant, and submitted argument on the adopted issues in first Respondent’s brief of argument.
My Lord Dongban-Mensem, J.C.A. granted me the privilege to read in draft the lead Judgment just delivered. My lord demonstrated unquestionable proficiency by navigating through the facts and the law, my lords reasoning and conclusion following analysis of the issues for determination represent my position and I therefore adopt same as my own; just to support the judgment, let me select the following issues for some few comments, the issues are numbers 2 and 3, they are
1. Whether the charge before the lower court was/is not incompetent and vitiated by non satisfaction of a condition precedent, and breach of Appellants right to fair hearing (Grounds 2, 3, 4, 5 and 8)
2. Considering the terse contents of the charge filed before the lower court, and the scant document attached as a proof of evidence, whether the jurisdiction of the lower court was properly activated to entertain a criminal trial. (Ground 6, 7 and 12).
ISSUE II:
Whether the charge before the lower court was/is not incompetent and vitiated by non satisfaction of a condition precedent and breach of Appellants rights to fair hearing. (Grounds 2, 3, 4, 5 and 8).
Learned counsel for the Appellant said the charge before the lower court was affected by jurisdiction divesting features thereby preventing the lower court from adjudicating on it. He cited the celebrated case of MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 34 and said a Court will only have jurisdiction, if it is properly constituted as regards membership qualification of members of the Bench, and no member is disqualified for one reason or the other, that the subject-matter is within the jurisdiction of the Court, and there is no feature in the case preventing the Court from exercising its jurisdiction and the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Learned counsel for the Appellant said, both parties in this appeal agreed that:
1. There was no investigation of any kind by the police before criminal proceedings were initiated against the appellant.
2. There was no complaint against the Appellant to the police in respect of the Criminal charge filed be the 1st Respondent at the lower court.
3. There was no evidence of any investigation of alleged crimes, purportedly committed by the Appellant carried out by any authority or body statutorily empowered to do so.
4. The Appellant was not questioned or heard at all in respect of any allegation of crime and investigation of same to ground the criminal charge filed at the lower court.
5. The police is statutorily vested by virtue of Section 4 of the Police Act, and 74 (1) and (2) of the Administration of Criminal Justice Law of Lagos State with power to investigate offences before initiation of Criminal charges.
Learned counsel for the Appellant said, the lower court refused to appreciate the implications of criminal trial, and chose to arrogate unqualified discretion to the Attorney-General in the institution of criminal proceedings. Learned counsel said, the proper condition precedent to institution of criminal trial is detailed and pains taking investigation to put the allegation beyond speculation; Learned counsel relied on ONOGORUWA v. STATE (1993) 7 NWLR (Pt. 303) 49 AT 107, to emphasize painstaking investigation as a pre-cursor to preferment of criminal charge, counsel also relied on AKILU v. FAWEHINMI No. 2 (1989) 2 NWLR (Pt. 102) 122. Counsel said in the two decisions cited, the court considered insufficient investigation in instances where there was investigation. In the instant case, Chief Olanipekun said there was no evidence of prior investigation, he said absence of compliance with condition precedent carried with it the necessary consequence of derobing the court of jurisdiction, counsel relied on ATOLAGBE v. AWUNI (1997) 9 NWLR (Pt. 522) 536.
Learned counsel for the Appellant referred the court to the ruling of the lower court and said the doctrine of fair hearing is not limited to the confines of the court room alone, that it extends to investigative functions of public authorities like the Attorney-General; counsel relied on NDUKWE v. LPDC (2007) 5 (Pt. 1026) 1. Learned counsel also referred the court to ADENIYI v. GOVERNING COUNCIL YABA TECH. (1993) 6 NWLR (Pt. 300) 426 AT 451, and said every person or authority whose decision is likely to impact on the civil rights and obligations of any person is bound to apply the principles of natural justice.
Learned counsel referred to the ruling of the Court where the learned trial judge held that the Attorney General can initiate Criminal proceedings without any prior investigation. He said if this is allowed, it will lead to executive arbitrariness, totalitarianism, self-help and recklessness; he referred the Court to ATTORNEY-GENERAL LAGOS STATE v. A-G FEDERATION (2004) 18 NWLR (Pt. 904) 1.
Learned counsel for the Appellant said the lower Court in breach of the time honoured principle of stare-decisis refused to follow the decision in ONOGORUWA (supra) and FAWEHINMI (supra) to the effect that, Criminal Prosecution can only be validly instituted on the basis of verifiable police report and or investigation; counsel said even where a lower court does not agree with decision of a higher Court, it is bound to follow such decision, he referred the Court to ATOLAGBE v. AWUNI and DALHATU TURAKI (2003) 15 NWLR (Pt. 843) 310 at 336. Learned counsel therefore urged this Court to resolve this issue in favour of the Appellant.
Learned counsel Pedro for the first Respondent said the Police Act Section 4 and the Administration of Criminal Justice Law Section 74 (1)-(4) make provision for police investigation, he however said non compliance with the provisions stated herein cannot preclude the Attorney-General from instituting criminal proceedings pursuant to Section 211 of the Constitution of the Federal Republic of Nigeria 1999.
Mr. Pedro said, the requirement for investigation of a crime before prosecution does not necessarily mean police investigation, he referred the court to definition of investigation as defined in Black’s law Dictionary which means “to inquire into a matter systematically”
Mr. Pedro said, there is no provision anywhere, that investigation must be conducted by the police or any other authority before the Attorney-General can exercise his prosecutorial powers he said the proof of evidence provided should be deemed as a product of some investigation on its own; Mr. Pedro said in GANI FAWEHINMI v. IGP (2002) 7 NWLR (Pt. 769) 606 at 671, the police have discretion whether to investigate allegation of crime brought to its notice or not; he said Section 74(7) of the law provides that, it is not mandatory on the Attorney-General to receive police investigation report or issue legal advice before he can initiate criminal proceedings against any person in the exercise of his constitutional powers of public prosecution; learned counsel said what is necessary is for the Attorney-General to have at his disposal evidence which in his opinion is sufficient for him to initiate criminal proceedings against the suspect; Mr. Pedro also relied on ONAGORUWA v. STATE (1993) 7 NWLR (Pt. 303) 49 at 107.
Mr. Pedro said, there is distinction between prima-facie case as a ground for proceeding and prima facie based on proof of case for deciding against defence, counsel referred the Court to OHWORVORIOLE v. FRN (2003) FWLR (Pt. 118) 1224 at 1277. He said at the stage of Appellants case all that is required is prima facie evidence sufficient for the Attorney General to institute criminal prosecution he relied on TONGO v. C.O.P. (2007) NCC 532, and AJIDAGBA & ORS v. IGP (1958) NSCC Vol. 1, 20.
Learned counsel cited ONAGORUWA (supra) and said the task of the prosecution at this stage is to high light the statutory elements of the offence charged with the actions or omissions of the Defendant, without going to the substance of the allegation.
On the submissions by the Appellant that the Attorney-General should not have requested for the outcome of an enquiry for the purpose of likely prosecution, learned counsel Pedro said, the Attorney-General as Chief Law Officer of the state has duty to ensure that Laws of the state are not violated, Mr. Pedro conceded that police investigation before prosecution is not only ideal, it is also desirable, but, its absence will not preclude the Attorney-General armed with sufficient evidence to commence prosecution. Mr. Pedro said in the right of Section 74 (7) of the Law the court is urged to resolve issue two in favour of the 1st Respondent.
In his reply brief Chief Olanipekun said, the Respondents admitted that police investigation is not only ideal it is desirable, learned counsel said this is an admission within the con of Section 20(1) of the Evidence Act; learned counsel also referred this Court TO HENRY UMOERAH v. C.O.P. (1977) 7 S.C. 12.
Learned counsel for the Appellant said in the instant case, there is no valid ground to proceed; he relied on GRANGE v. FRN (2010) 7 NWLR (Pt. 1192) 135 at 165; and the decision in ADUKWU v. FRN (2009) A NWLR (Pt. 1146) 370 at 395, and said prima facie case can only exist upon a consideration of the statements of the intended witnesses and accused person vis-‘a-vis, the documents in purported proof of evidence.
Chief Olanipekun said, any statutory provision that is inconsistent with the provisions of the Constitution is void to the extent of the inconsistency, counsel said Section 74(7) of the Administration of Criminal Justice Law must give way to Section 36 of the Constitution, he relied on ORHIUNU v. FRN (2005) 1 NWLR (Pt. 906) 39 at 48, and STABILINI VISINONI LTD v. FBIR (2009) 13 NWLR (Pt. 1157) 2009 at 225-227, and urged this Court to resolve this issue in favour of the Appellant.
Appellants major complain here is that the Attorney General commenced prosecution without subjecting the allegations against her to proper police investigation. Learned counsel for the Appellant relied on Section 4 of the Police Act and Sections 74(1) and (4) of the Law, and said police investigation is a precondition to commencement of Criminal prosecution of the Appellant.
Counsel for the first Respondent said requirement for investigation does not mean police investigation alone that whenever the Attorney-General has sufficient materials at his disposal he will be at liberty to initiate criminal prosecution.
Section 4 of the police Act is reproduced as follows:
“The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property, and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or without Nigeria as may be required by them, by or under the authority of this or any other Act”.
Learned Senior counsel Olanipekun also relied on Section 74(1) and (2) of the Law, the Section is also reproduced as follows:
74(1)
The Commissioner of police shall forward all duplicated case files with respect to offences triable on information to the office of the Attorney-General for the purpose of issuance of legal advice.
(2) The legal advice issued by the office of the Attorney-General with respect to offences triable on information or any person shall be conclusive.
I read the provisions of Section 4 of the Police Act, and Section 74 (1) (2) all reproduced in this judgment, it is agreed that the police has statutory powers to investigate allegations of crime, and upon so doing they are required by Section 74(1) of the law, to proceed to transmit record of their investigation to the Attorney-General who now renders legal advice pursuant to sub-section (2) of the said law and the sub-section introduced valve of conclusiveness, some polite measure of finality, the office of the Attorney General becomes the processing plant where the work of the police is analyzed and decision on whether to prosecute or not is taken, sub-section (2) says the legal advice issued by the office of the Attorney General with respect to offences triable on information or any person shall be conclusive.
Let me proceed to cite Section 74 (7) of the said Law which reads as follows and I quote:
“7 Nothing in this section shall be construed as precluding the Attorney-General from instituting and undertaking criminal proceedings against any person before any Court of law in Nigeria”
In my humble understanding of Section 74(1)(2) the law imposes obligation on the police to render the result of their investigations to the Attorney-General of Lagos State for him to take a decision on whether the materials provided by the police are sufficient to justify initiating criminal prosecution or not, I am sure the provisions of Section 74 of the Law and Section 4 of the Police Act are not intended to subject the Attorney-General to submit himself to the authority of the police by reporting allegations for purposes of investigation.
Section 211 of the Constitution of the Federal Republic of Nigeria 1999 gives the Attorney General Powers 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.
By the combined effect of Section 211 (b) of the Constitution of the Federal Republic of Nigeria, and Section 74(7) of the Administration of Criminal Justice Law of Lagos State, the Attorney-General armed with sufficient materials at his disposal needs not engage the services of the police before he initiates criminal charge against a defendant.
Nnamani, JSC (of blessed Memory) while contributing in AMAEFULE & 1 OTHER v. THE STATE (1988) NWLR (Pt. 75) AT 238 on the interpretation of powers of the Attorney General under Section 191 of the 1979 which is impair materia with Section 211 (b) of the 1999 Constitution quoted Esho, JSC (of blessed memory ) in the following words:
“The pre-eminent and incontestable position of the Attorney General under the common law as the Chief law officer of the State either generally as a legal adviser or specifically in all Court proceedings to which the State is a party has long been recognized by the Courts.
In regard to these powers, and subject only to ultimate control by public opinion, and that of the parliament, or the legislature, the Attorney-General has at common law, been a master unto himself, law unto himself, and under no control whatsoever judicial or otherwise vis-‘a-vis his powers of instituting or discontinuity criminal proceedings”.
The extensive and unfettered powers enjoyed by the Attorney-General under Section 211 of the 1999 Constitution to institute criminal proceedings cannot be subordinated to Section 4 of the Police Act, more over Section 74 of the Administration of Criminal Justice law makes the Attorney-General the ultimate authority and custodian of powers of the State to prosecute.
Failure to conduct police investigation before initiating criminal prosecution cannot vitiate the process as long as there are materials sufficient in the judgment of the Attorney-General to initiate criminal proceedings pursuant to Section 74(7) of the Law.
For the above reasons, I resolve issue number two in favour of the first Respondent.
ISSUE III.
Considering the terse contents of the charge filed before the lower court, and the scant document attached as a proof of evidence, whether the jurisdiction of the lower court was properly activated to entertain a criminal trial. (Grounds 6, 7 and 12).
Learned counsel for the Appellant said this issue relates to consideration of contents of the charge and the proof of evidence. Counsel said the entire counts and particulars made mere allegations of conspiracy with intent to defraud, and steal various sums of money against the Appellant. Learned counsel said the counts and particulars do not contain sufficient details and therefore give room for speculation and conjecture-giving rise to numerous questions; he relied on MDPDT v. OKONWO (2001) 1 NWLR (Pt. 711) 206 at 237; and JAMES v. NIGERIAN AIRFORCE (2000) 13 NWLR (Pt. 684) 406 AT 424-425.
Chief Olanipekun said, the vague count without particularization was because there was no prior investigation of the alleged offences before the prosecution proceeded to file charges against the Appellants. Learned counsel said without witness statements and statement of the accused person no prima-facie case can be made out. Learned counsel relied on ABACHA v. STATE (2002) 11 NWLR (Pt. 779) on what is meant by prima-facie case. Learned counsel for the Appellant said, no citizen should be put through trial in a criminal proceeding unless available evidence points to his complicity in the commission of the crime, that the duty of the court is to examine the statements and proofs filed in support of the application.
Learned counsel for the Appellant referred this Court to the decision on GRANGE v. FRN (2010) 7 NWLR (Pt. 1192) 135 at 166-167 AND UWAZURUIKE v. A-G FEDERATION (2008) 10 NWLR (Pt.1095) and said, it will amount to abuse of Court process to allow a person face criminal prosecution where the prosecution has nothing to offer.
Counsel said, since there was no valid investigation the charge against the Appellant is defective, he said the Court relied on Section 260(2) of the Administration of Criminal Law of Lagos State 2011 to hold that, disclosure of prima facie case relates to sufficiency of evidence and that same cannot be raised until the close of the case of the prosecution, the court counsel said failed to recognize the fact that disclosure of a prima facie case at the commencement of trial is a direct stipulation of Section 36 of the Constitution of the Federal Republic of Nigeria 1999. He said since constitutional provisions are supreme as per Section 1 of the Constitution and that since Section 1 (3) of the Constitution makes any law that is inconsistent with the said Constitution void to the extent of the inconsistency, Section 260 (2) of the Administration of Criminal Justice Law of Lagos State must give way to the extant superior and overriding provisions of the 1999 Constitution of the Federal Republic of Nigeria he relied on A-G ABIA FEDERATION (2002) 6 NWLR (Pt. 763) 265 AT 479; ODOFIN v. AGU (1992) 3 NWLR (Pt. 229) 280 OLUFEAGBA v. ABDUC RAHEEM (2009) 18 NWLR (Pt. 1173) AT 436.
Chief Olanipekun urged this Court to resolve this issue in favour of the appellant.
Learned Senior counsel Pedro for the first Respondent said, if the charge against the Appellant discloses an offence known to law, and the offence is within the jurisdiction of the Court, the court will be said to have jurisdiction. He said in the instant case, the Appellants were charged with offences of conspiracy and stealing. The offences are within the Jurisdiction of the High Court of Lagos State to try. He said the first Respondent complied with the provisions of Section 251(1) of the Law, which required description of the offence, statement of the offence charged, a short description of the offence in ordinary language, the particulars of offence, proof of evidence, list of witnesses, and list of exhibits, Counsel said there was substantial compliance with the requirements in Section 251(1), the trial Court therefore has jurisdiction to entertain the charge.
Mr. Pedro relied on Section 260(2) of the law to submit that, objection to the sufficiency of evidence disclosed in the proof of evidence attached to the information shall not be raised before the close of the case of the prosecution. He said Appellants objection was premature and therefore not ripe at that stage of the proceedings. Learned counsel Pedro said it is not disputed that prosecution has not commenced its case, which also means prosecution has not closed its case; and it is the law that any objection to the sufficiency of evidence prior to the close of prosecutions case runs foul of the provisions of the Law; that where a statute provides a particular method of performing a duty that method alone and no other method must be adopted, learned counsel for the first Respondent relied on OBASANYA v. BABAFEMI (2000) 23 WRN 30 at 48, and COOPOERATIVE & COMMERCE BANK NIG. PLC v. A-G ANAMBRA (1992) 8 NWLR (Pt. 261) 538.
Learned Counsel Pedro said, the Appellant failed to comply with the statutory method prescribed by law to challenge the charge filed by the first Respondent, and that absence of statement by the Appellant is not enough to invalidate the charge because Appellant may decide to refrain from making statement to the police or any other body, counsel relied on ATANDA v. ATTORNEY-GENERAL WESTERN NIGERIA 1965 NMLR 225 at 228.
Learned counsel Pedro said, Section 260(2) of the law is not inconsistent with provisions of Section 36 of the Constitution of the Federal Republic of Nigeria. That Appellant has not appeared before the court and as such issue of breach of fair hearing does not arise. He urged the court to resolve this issue in favour of the first Respondent.
Learned counsel Olanipekun said Section 36(1) and 6 (a) require that accused be informed promptly and in detail; he therefore said any law that attempts to ambush, stultify or truncate this right cannot be valid, he referred the Court to FASHAKIN FOODS NIG LTD v. SHOSANYA (2006) 10 NWLR (Pt. 987) 126 at 148.
Chief Olanipekun urged this court to discountenance submissions by the 1st Respondent on this issue, particularly reliance on Atanda (supra) because Appellant was not invited to make statement, it would therefore be wrong to presume that Appellant would not have made statement if invited. He urged the Court to resolve this issue in favour of the Appellant.
This issue has to do with, if a prima facie case is disclosed from materials available, learned counsel for the Appellant cited failure to offer audience to the Appellant as a breach of Section 36 of the Constitution, and failure to attach her statement to the proof of evidence since the police recorded no statement from her.
Counsel for the first Respondent said the objection is premature having regard to Section 260(2) of the Administration of Criminal Justice Law, that objection as to sufficiency of evidence is only raised at the conclusion of the case of the prosecution; he however referred to Section 251(1) to say the prosecution substantially complied with the requirements that the charge is therefore competent and the lower Court has jurisdiction.
I read the decision in GRANGE V. FRN (supra) on the meaning of prima facie, it is important to re-state ratio one, where Abba Aji, JCA said.
“A prima facie case in a criminal trial in a sense only means that there is a ground for proceeding with the trial. At that stage whether the evidence is sufficient to ground a conviction is not the issue when a Court states that a prima facie case has been made, or that, the evidence discloses prima facie case, it means that the evidence is sufficient to prove the case against the accused.
A prima facie case is not the same as proof which occurs after evidence has been adduced by both parties where at the close of the case, the Court is obliged to find whether the accused is guilty of the offence charged or not.
Prima facie on the other hand indicates that there is ground for proceeding with the trial and the expression may not aptly be used after the prosecution and the defence have all led evidence and concluded their respective case and their trial Court is obliged to examine all the evidence and determine if the prosecution has or has not proved its case beyond reasonable doubt as required by law, or the accused is guilty or not guilty of the offence charged…”.
Section 36(6) of the Constitution requires that an accused person be informed promptly the nature of offence against him, he is entitled to defend himself in person or by legal practitioner, and to examine witnesses called by the prosecution.
Section 251(1) of the Law sets out the materials to be filed by the prosecution; which in my view reflects the requirement for making details available to the defendant at the trial, when he is eventually served the proof of evidence.
The case of Grange (supra) was objection under the Criminal Procedure Act. Section 260(2) of the Administration of Criminal Justice Law of Lagos State provides as follows:
“260(2)
An objection to the sufficiency of evidence disclosed in the proof of evidence attached to the information shall not be raise before the close of prosecution’s case”
From the above provisions, it appears to me that there is departure from the provisions of Section 167 of the Criminal Procedure Act. I carefully read Section 374 of the law which repeals the Criminal procedure Law Cap C18 2003 the applicable law in Lagos State prior to the enactment of the law. From the provisions of Section 260(2) and 374, it is clear to me that objection to information filed against a defendant is only possible upon the close of the case of the prosecution and if this is so, then it also appears to be the law, that a defendant standing trial before the Lagos High Court can only successfully raise objection against his trial, upon the close of case of the prosecution, by implication therefore, application to quash charge as under the criminal procedure Act is no longer available to a defendant standing trial before the Lagos High Court having regard to Section 260(92) of the law, until the close of prosecution’s case.
The materials filed by Attorney-General pursuant to Section 251 of the Law cannot be challenged at this stage, the defendants right to challenge sufficiency of evidence becomes activated at the close of the case of the prosecution, this appears to be the law under Section 260(2) of the Law, where a statute provides a particular method of performing a duty, that method alone and no other must be adopted and complied with. See COOPERATIVE & COOMERCE BANK PLC v. A-G ENUGU STATE (1992) 7 NWLR (Pt. 261) 528; OBASANYA v. BABAFEMI (2000) WRN 23.
Defendants right to challenge the charge against her is not yet activated. I therefore resolve issue 3 in favour of the first Respondent.
Having adopted the lead judgment as mine, it is clear to me, that Appellants appeal is bereft of merit and must be dismissed, I accordingly dismiss it, and affirm the ruling of Balogun J. delivered on 23rd March, 2012.
Having dismissed Appellants appeal and affirmed the Ruling of the court below, I also order that Appellant Ndi Okereke Onyuike proceeds to take her trial before the lower court.
Appearances
Chief Wole Olanipekun, SAN (with him, Robert Clark, SAN, Fred Agbaje, Ayo Adesanmi, Bode Olanipekun, Demola Adesina and V. C. Ikedimma)For Appellant
AND
Lawal Pedro, SAN (SG Lagos State) with E. I. Alakiya (DPP) and Femi Ademson (ACSC) – 1st RespondentFor Respondent