OLUWATOYIN JINADU v. FEDERAL REPUBLIC OF NIGERIA
(2015)LCN/7752(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of January, 2015
CA/A/226C/2013
RATIO
ACTION: ACTION BY THE EFCC; WHETHER THE EFCC CAN INSTITUTE A CASE IN THE NAME OF THE ATTORNEY-GENERAL OF THE FEDERATION, AND NOT IN ITS NAME ONLY
Furthermore, the authorities clearly support the stand of the trial judge, that the EFCC can institute a case in the name of the Attorney-General of the Federation, and not necessarily in its name only. In AMAECHI VS. INEC & 2 ORS (2008) 5 NWLR (Pt.1080) 227 at 307, the Supreme Court, per Oguntade JSC held –
“The EFCC is a statutory body created under the laws of Nigeria. Its duties include the investigation and prosecution of a class of criminal offences. In essence; once its investigation has shown prima facie that a person has committed a criminal offence, the duty of EFCC is to have such offender prosecuted in a court of law…”
There is nothing here that prevents the EFCC to prosecute such offender in the name of the Federal Republic of Nigeria. After all, by Section 1(2)(c) of the EFCC Act, the EFCC has the “responsibility of coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with Economic and Financial Crimes in Nigeria.” i.e. of the Federal Republic of Nigeria.
In NYAME VS. F.R.N (2010) 7 NWLR (Pt.1193) 344, the Supreme Court held at page 403 that – “The Commission is the coordinating agency for the enforcement of the provisions of any other law or regulation or economic and financial crimes, including the criminal code and the penal Code. The Commission has the Power under Section 13(2) of the Act to prosecute offences so long as they are financial crimes.”
The Supreme Court did not say that in prosecuting the offenders, it cannot do so in the name of the Federal Republic of Nigeria. Again the case of EDO STATE BOARD OF INTERNAL REVENUE VS. UNIPETROL (SUPRA) did not lay down the law, that bodies empowered statutorily to prosecute offences, cannot do so in the name of the Federal Republic of Nigeria.
At any rate, the trial judge was right, when he held, on the authorities of COMPT N.P.S. VS. ADEKANYE (NO. 1) 2002 15 NWLR 709 and FRN VS. ADEWUNMI (2007) 10 NWLR (Pt.1042) 399, that the power to challenge whether prosecution is indeed being carried out validly in the name of a party with his permission, lies in that party only. per. ABUBAKAR DATTI YAHAYA, J.C.A.
PRACTICE AND PROCEDURE: PRIMA FACIE CASE; WHAT DOES A PRIMA FACIE CASE MEANS AND WHAT THE COURT DOES WHEN DECIDING WHETHER A PRIMA FACIE CASE HAS BEEN MADE
A ‘prima facie’ case means that there is evidence available which if uncontradicted and if believed by the court, there will be sufficient evidence to convict the accused person. What the court does when deciding whether a prima facie case has been made out or not, is to examine the proof of evidence to see if it connects the accused person to the offence charged, to the extent that he will be required to proffer an explanation – ABACHA VS. STATE (2001) 3 NWLR (Pt.699) 35. So when a prima facie case is made, a presumption of guilt arises against the accused at that stage and it is then for him to rebut same by explanations – IGHO VS. STATE (1978) 3 S.C. 87. per. ABUBAKAR DATTI YAHAYA, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
Between
OLUWATOYIN JINADU Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Ruling of the High Court of Federal Capital Territory Abuja, delivered on the 21st of January, 2013.
The appellant herein, was the accused person at the trial court and she was arraigned on the 12th of July, 2012 on a twenty count charge of stealing, forgery and using as genuine, forged documents, contrary to the provisions of Sections 287, 362 and 364 of the Penal Code. Thereafter, on the 16th of October, 2012, the appellant filed a Motion, seeking to quash the charge on the ground that it was incompetent and the court lacked the jurisdiction to adjudicate over same. The trial court heard the parties and in its Ruling, dismissed the application for lack of merit.
In the Notice of appeal, filed on the 8/3/13, four grounds of appeal were filed.
The appellant’s counsel Mr. Chukwudi, filed the appellant’s brief on the 24/1/14 but was deemed properly filed on the 23/6/14. In it, he abandoned ground 3 of the grounds of appeal. It is therefore struck out. He identified three issues from grounds 1, 2 and 4 of the grounds of appeal. They are –
(a) Whether the learned trial judge determined the issue on the interpretation of the provisions of Section 1(2)(a) and (b) of the Economic and Financial Crimes Commission Act in the Ruling, the subject of this appeal and if answered in the negative whether such non-determination of is not a breach of the appellant’s Right to fair hearing.
(b) Whether by the provisions of Section 227(1) of the Penal Code the Respondent can validly initiate and prosecute Penal Code offences without the direction of the Attorney-General of the Federation.
(c) Whether the proof of evidence demonstrates any link between the Appellant and the offences charged and whether there are counts in the charge which are not rooted in law.
The respondent’s brief, which was settled by Mr. Ugwuegbulam, was filed on the 10/6/14 but was deemed filed on the 23/6/14. In it, the issues identified by the appellant, were adopted.
Issue (a) identified by the appellant is a composition of two different issues i.e. it combines an issue as to whether the trial judge determined the issue of the interpretation of the provision of Section 1(2)(a) and (b) of the Economic and Financial Crimes Commission Act, and another issue of breach of the appellant’s right of fair hearing. This is not allowed. See UNITY BANK PLC VS. OLATUNJI (2013) 15 NWLR (Pt.1378) 503. I therefore re-phrase the issue to now read –
(1) Whether the trial judge determined the issue on the interpretation of Section 1(2)(a) and (b) of the Economic and Financial Crimes Act in his Ruling.
Issue (c) identified by the appellant also offends the requirement of distilling one issue and not a composition of two different issues, in that it combines whether the proof of evidence links the appellant to the offences charged and whether the charge is rooted in law. This should not be, but in the interest of justice and to avoid over dependence on technicality, I shall let it be.
ISSUE NO 1
Whether the learned trial judge determined the issue on the interpretation of Section 1(2)(a) and (b) of the Economic and Financial Crimes Commission Act in his Ruling.
Learned counsel for the appellant submitted here, that there was a question before the trial court on the correct import and interpretation of Section 1(2)(a)(b)(c) of the Economic and Financial Crimes Commission Act 2014 in relation to the validity of the charge and that the trial court had failed to determine same. This, he argued, is a breach of the Appellant’s right to fair hearing since he has a right to have an issue he submitted, determined. Counsel then submitted that by the provision of Section 1(2)(a)(b) and (c) of the EFCC Act, the EFCC lacks the power or capacity to file a criminal charge in a name other than its statutory name. The charge filed in the name of the Federal Republic of Nigeria, is therefore incompetent he argued. He therefore urged us to determine the issue in favour of the appellant.
For the respondent, it was submitted that the issue formulated by the appellant, at the trial court (Page 88 of the record), was infact determined by the trial judge – pages 139 – 147 of the record, contrary to the submission of the appellant. Counsel emphasized that the question posed for determination at the trial court is different from Issue 1 formulated by the appellant here, as the trial court was not called upon to interpret Section 1(2)(a)(b) and (c) of the Act. There was therefore no breach of fair hearing, he argued.
Counsel then referred to the case of EDO STATE BOARD OF INTERNAL REVENUE VS. UNIPETROL NIG. LTD (2006) 8 NWLR (Pt.983) cited by the appellant, and argued that the Supreme Court did not hold that it is illegal or incompetent, for a statutory body vested with prosecutorial powers like EFCC, to bring a criminal action in the name of the Federal Republic of Nigeria. He also referred to JAMES VS. OKEREKE (2008) 13 NWLR (Pt.1105) 566; AMAECHI VS. INEC (2008) 5 NWLR (Pt. 1080) and NYAME VS. FRN (2010) ECLR VOL. 1. He urged us to resolve the issue in favour of the respondent.
In his written address before the trial court, learned counsel for the appellant, at page 88 of the record, formulated three issues for determination. The first Issue is –
“Whether the EFCC has the locus standi to file a charge in the name of the FRN without the fiat of the Attorney-General of the Federation and in the face of the provisions of Section 1(2)(a) and (b) of the EFCC Act, and Section 227 of the CPC.”
At page 90 of the record, counsel submitted that the charge against the appellant, “is incompetent and not capable of igniting the jurisdiction of this Honourable Court.” He gave his reason to be-
“By the provision of Section 1(2)(a)(b)(c) of the Economic and Financial Crimes Commission Act, 2004 the Economic and Financial Crimes Commission (hereafter called the Commission) does not have the power and or competence to file a criminal charge in the name of the Federal Republic of Nigeria.”
In my view, the above clearly signifies that the appellant put into question, the interpretation of Section 1((2)(a)(b) and (c) of the EFCC Act in respect of the charges preferred, and that is the issue that is to be determined here, whether the trial court had determined it or not. The Issue is therefore competent and is not different from what was raised at the trial court. The trial judge at page 138 of the record infact captured the issue.
I have read the Ruling of the trial judge again. He stated from paragraph 2 of page 139 to the end of paragraph 1 of page 142 thus –
“Turning to the first issue regarding the question of fiat, it remained unchallenged the fact that the Economic and Financial Crimes Commission have the requisite jurisdiction to investigate and prosecute crimes designated as financial crimes. The issue is whether they have the authority to prosecute in the name of the Federal Republic of Nigeria. The first point is that as held in the case of COMPT N.P.S. VS. ADEKANYE (NO. 1) (2002) 15 NWLR, 709 at 318, the Supreme Court held that there is a presumption of authority in favour of counsel who announces appearance for a party, whether or not, he has a fiat or a letter of instruction, and it is only that party who can validly challenge such authority. It was further held that this presumption of authority may only be rebutted by hard evidence adduced by the other party.
As regards the contention of fiat and who may challenge such the Supreme Court per Kalgo JSC held in the case of FEDERAL REPUBLIC OF NIGERIA VS. ADEWUNMI (2007) 10 NWLR (PT.1042) AT 399 that it is only the Attorney-General of the Federation that could at any time raise questions as to whether or not such authority to prosecute was properly given, Ogbuagu JSC lent his voice to this position when at page 242 Para D stated thus:
“Firstly, when or where counsel announces that he is appearing for a party, it is now firmly settled that it is not for the Court to start an enquiry into his authority and the court never does.”
It is clear that criminal matters are matters of State. The State does indeed symbolizes the people, and so it follows that any criminal act is deemed to be committed against the State. That is perhaps why in instances when complainant in a criminal matter seeks to withdraw the action against an individual, say after settling the issues out of Court, it does not lead to an automatic withdrawal of the case from the Court as is custom in civil cases.
The complaint was made to the EFCC, who is undoubtedly a Federal Government Agency vested with full prosecutorial powers over the offences alleged and therefore they bestowed the public duty to investigate and prosecute the offences charged. This complaint vested the EFCC with the necessary locus standi to take up the action in the name of the Federal Government being a Federal Government Agency. In the case cited by the prosecution of JAMES OKEREKE (2008) it was held that such power to prosecute is invariably delegated by the State to specific government agencies and officers like the Attorney-General of a State, the Police, the ICPC and EFCC and other related commissions. The cases of AMAECHI VS. INEC (2008) 5 NWLR (PT.973) AT 430 are clearly instructive on this point where the Apex Court carefully analyzed the powers of the Attorney-General of the Federation under Section 147 of the 1999 Constitution and came to the decision that rather than granting the power of institution to the office of the Attorney General of the Federation, it grants powers to take over and continue any criminal proceedings that may be instituted by any other authority or persons. Onnoghen JSC was of the considered view that the relevant constitutional provision needs not create the power to institute criminal proceedings once it recognizes the existence of that right to so institute criminal proceedings. The expression “any other authority or person” used in Section 174 of the 1999 Constitution therefore logically recognizes any other authority or person with the right to prosecute or institute charges, subject of course to the power of the Attorney-General to take over and continue the proceedings at any stage.
It is also equally important to note Section 299 of the 1999 Constitution where the Federal Capital Territory is treated as one of the States of the Federation. This section went on to set out the practical implication and functions of the three arms of Government and stated that the legislative power vests in the National Assembly, the Executive power, with the President and the Judicial Powers with the High Court of the Federal Capital Territory. I am of the considered view that the power to prosecute for offences committed within the Federal Capital Territory is exercisable by the Federal Republic of Nigeria through the Attorney-General of the Federation or any other Federal Government Agency vested with prosecutorial powers. The EFCC have under Section 46 of the EFCC Act been given the powers to prosecute economic and financial crimes and Section 7(2)(f) of the same Act widened the scope of the enforcement by the EFCC to cover provisions of any law or regulation relating to economic and financial crimes including the penal Code and the Criminal Code. Therefore, on this point, the Court finds that the Economic and Financial Crimes Commission, being a Federal Government Agency can competently initiate the charges as presently constituted in the name of the Federal Republic of Nigeria.
It is therefore crystal clear from the passages above, that the trial court judge in his Ruling, had considered the relevant provisions, interpreted them and had come to a conclusion, determining the 1st Issue raised by the appellant. He may not have specifically referred to the provision of Section 1(2)(a)(b) and (c) of the EFCC Act, but the entire passage read as a whole, shows that Section 1(2)(a) and (b) of the EFCC Act have been considered. He stated that the EFCC is a Federal Government Agency vested with full prosecutorial power over the offences alleged which are provided in the EFCC Act and “provisions of any law or regulation relating to economic and financial crimes including the penal code and the criminal code” – very clear reference to Section 1(2)(a)(b) and (c) of the EFCC Act. The learned trial judge also referred to other provisions of the EFCC Act, showing that he considered the Act as a whole in interpreting it, and did not restrict himself to only a few sections. This is how a Statute should be interpreted and it has brought out the meaning of the section under reference. It was therefore most unfair to submit, as counsel for the appellant had done, that the trial judge had failed to interpret the provisions. He did. Since this is the position, there was no denial of fair hearing whatsoever, of the appellant.
Furthermore, the authorities clearly support the stand of the trial judge, that the EFCC can institute a case in the name of the Attorney-General of the Federation, and not necessarily in its name only. In AMAECHI VS. INEC & 2 ORS (2008) 5 NWLR (Pt.1080) 227 at 307, the Supreme Court, per Oguntade JSC held –
“The EFCC is a statutory body created under the laws of Nigeria. Its duties include the investigation and prosecution of a class of criminal offences. In essence; once its investigation has shown prima facie that a person has committed a criminal offence, the duty of EFCC is to have such offender prosecuted in a court of law…”
There is nothing here that prevents the EFCC to prosecute such offender in the name of the Federal Republic of Nigeria. After all, by Section 1(2)(c) of the EFCC Act, the EFCC has the “responsibility of coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with Economic and Financial Crimes in Nigeria.” i.e. of the Federal Republic of Nigeria.
In NYAME VS. F.R.N (2010) 7 NWLR (Pt.1193) 344, the Supreme Court held at page 403 that –
“The Commission is the coordinating agency for the enforcement of the provisions of any other law or regulation or economic and financial crimes, including the criminal code and the penal Code. The Commission has the Power under Section 13(2) of the Act to prosecute offences so long as they are financial crimes.”
The Supreme Court did not say that in prosecuting the offenders, it cannot do so in the name of the Federal Republic of Nigeria. Again the case of EDO STATE BOARD OF INTERNAL REVENUE VS. UNIPETROL (SUPRA) did not lay down the law, that bodies empowered statutorily to prosecute offences, cannot do so in the name of the Federal Republic of Nigeria.
At any rate, the trial judge was right, when he held, on the authorities of COMPT N.P.S. VS. ADEKANYE (NO. 1) 2002 15 NWLR 709 and FRN VS. ADEWUNMI (2007) 10 NWLR (Pt.1042) 399, that the power to challenge whether prosecution is indeed being carried out validly in the name of a party with his permission, lies in that party only. So here, the appellant has no locus to challenge her prosecution in the name of the Federal Republic of Nigeria. It is only the Federal Republic of Nigeria, represented by the Attorney-General of the Federation by virtue of Section 174 of the Constitution of the Federal Republic of Nigeria 1999, that can challenge the prosecution of the appellant in the name of the Federal Republic of Nigeria. Issue 1 is thus resolved against the appellant and in favour of the respondent.
ISSUE NO 2
Whether by the provision of Section 227(1) of the Penal Code Act the Respondent can validly initiate and prosecute Penal Code Offences without the direction of the Attorney-General of the Federation.
Learned counsel for the appellant submitted that the offences for which the appellant was charged with, are those provided in the Penal Code, and so by Section 227 of the Criminal Procedure Code which regulates criminal proceedings in Northern Nigeria including Abuja, all prosecutions in the High Court undertaken by the EFCC, must be done only with due authorization of the Attorney-General of the Federation or of a State. He argued then, that since there is nothing in the charges indicating that the Attorney-General of the Federation had authorized same, the charges are incompetent and should be quashed.
Learned counsel for the respondent responded by pointing out that Section 227 of the Criminal Procedure Code does not provide for a fiat of the Attorney-General of the Federation to be given to agencies vested with prosecutorial powers, before they can prefer charges in the name of the Federal Government of Nigeria. He also referred to COMPT N.P.S VS. ADEKANYA (SUPRA) and FRN VS. ADEWUNMI (SUPRA) to submit that the appellant has no authority to question whether the Attorney-General of the Federation has given his fiat to the respondent or not.
This Issue has infact been determined when I was resolving Issue No. 1 and my resolution therein applies with equal force here. Furthermore, it is clearly wrong to submit that “all prosecutions in the High Court undertaken by the commission must be done only with due authorization of the Attorney-General of the Federation.” This is because the contrary has been decided by the Supreme Court in NYAME VS. FRN (SUPRA) where it held that –
“The power to prosecute in the Federal Capital is exercised by the Federal Republic of Nigeria through the office of the Attorney-General or officer in his department or other agencies of the Federal Government vested with prosecution powers. (Underlines mine).
So, since the prosecution in the Federal Capital Abuja, is exercised by the Attorney-General of the Federation, the issue of his authorizing the exercise of the power by him, does not arise. Again, since the EFCC has been vested statutorily with prosecution powers, it does not need any authorization as such, to exercise the power, Section 227 of the Criminal Procedure Code notwithstanding, since it is in respect of prosecution in a State and not in the Federal Capital Territory, Abuja as in instant appeal. In AMAECHI VS. INEC (SUPRA) at page 307, the Supreme Court opined that –
“…I know of no provision of the law which enables EFCC upon the conclusion of investigation in a criminal case to send the report or case file to either the Federal or State Government.”
In other words, if the EFCC has no obligation to send a case file to the Federal Government, it can simply institute the prosecution of the offender, without the necessity of obtaining any authorization from the Attorney-General of the Federation since the prosecution is in the name of the Federal Republic of Nigeria.
A charge drafted by the EFCC does not need to contain any information therein, that the authorization of the Attorney-General of the Federation had been obtained, since the authorization is not necessary – AMDI VS. FRN (2008) 18 NWLR (Pt.1119) 259 at 276. Even if it is necessary, it is for the Attorney-General of the Federation to complain or challenge the prosecution, not the accused person. Issue No. 2 is thus resolved in favour of the respondent and against the appellant.
ISSUE NO 3
Whether the proof of evidence demonstrates any link between the Appellant and the offences charged and whether there are counts in the charge which are not rooted in law.
Counsel for the appellant submitted that a critical look at the charges framed, and the proof of evidence, will reveal that there is no link between the offences and the appellant.
On this point, counsel for the respondent submitted that there is a link between the appellant and the proof of evidence. He referred to the statement of witnesses and the confessional statement of the appellant which he said, admitted all the charges preferred against her and which is consistent with other facts disclosed in the proof of evidence. A prima facie case had been made, he argued and referred to JOLLY NYAME VS. FRN (SUPRA); UBANATU VS. C.O.P (2000) NWLR (Pt.643); DURU VS. NWOSU (1989) 1 NWIR (Pt.113) 24 at 45 and IKOMI VS. STATE (1986) 3 NWLR (Pt.28).
A ‘prima facie’ case means that there is evidence available which if uncontradicted and if believed by the court, there will be sufficient evidence to convict the accused person. What the court does when deciding whether a prima facie case has been made out or not, is to examine the proof of evidence to see if it connects the accused person to the offence charged, to the extent that he will be required to proffer an explanation – ABACHA VS. STATE (2001) 3 NWLR (Pt.699) 35. So when a prima facie case is made, a presumption of guilt arises against the accused at that stage and it is then for him to rebut same by explanations – IGHO VS. STATE (1978) 3 S.C. 87.
The trial judge herein considered the application, studied the proof of evidence in connection with the charges, proffered, and held that –
“there exists a prima facie case sufficient to warrant the accused person to be charged and for the continuation of the proceedings and therefore the objection raised is unfounded and is accordingly dismissed.”
I have had a look at the statements of witnesses and the confessional statements of the appellant, and certainly, there is a link between the proof of evidence, the charges and the appellant. Clearly therefore, the trial judge was right that there is ground for the confirmation of the proceedings.
Learned counsel for the appellant has also submitted that some of the counts in the charge are not offences known to law. He referred to stealing, forgery and using as genuine, a forged document.
Counsel for the respondent argued that the objections of the appellant are only vagaries of nomenclature without substance as the offences are known to law, and the appellant never complained, when the charges were read – OGBOMOR VS. STATE (1985) 1 NWLR (Pt. 2).
As regards the offence of stealing in counts 1, 6, 11 and 16, it is true that the actual word used in Section 287 of the penal Code, is ‘theft’. In my view, this has not affected the substance of the offence charged as it is clearly known to Section 287 of the Penal Code. The charges were read, the appellant understood same and pleaded. There is nothing to show that she was misled or prejudiced. The appellant only raised a red flag in order to hang on the technicality that has no basis.
On forgery in counts 2, 4, 7, 9, 12, 14 and 19 learned counsel for the appellant submitted that the letter of the EFCC dated 19/10/11, document titled “Documents examination and examination and comparison report/opinion”, has no direct bearing or reference to the appellant. At this stage, the concern of the court, is not whether a document has direct bearing, but whether there is a link to the appellant and the charges filed. An offence does not have to be proved by direct evidence. It could be by circumstantial evidence. Furthermore, there is nothing before the court, showing that the said document is the only one that the prosecution would rely upon in proof of its case. Once there are other statements that link the appellant with the offences charged, that will suffice, as issue of proof of the offences, has not yet arisen at this stage. All the counts stated above, stated that the appellant ‘forged’, and forgery is an offence known to law- Section 362 of the Penal Code and punishable under Section 364 of the Penal Code. The same argument applies to the offences in counts 3, 5, 8, 10, 13, 18 and 20, of using as genuine, a forged document. These are offences known to law – Section 366 of the Penal Code and punishable under Section 364 of the Penal Code. Clearly therefore, the offences charged, are known to law and the proof of evidence has linked the appellant to them, and to the charges. Issue 3 is resolved in favour of the respondent and against the respondent.
As a result, this Appeal is entirely devoid of any merit, but is delaying the determination of the substantive case. It fails and it is dismissed.
No Order as to costs.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Yahaya, JCA. I am in full agreement with my learned brother that the appeal is completely devoid of any merit. The appellant has only succeeded in delaying the prosecution of the criminal case hanging on his head.
I also dismiss the appeal with no order as to costs.
TANI YUSUF HASSAN, J.C.A.: I have had the opportunity of reading in draft the lead Judgment of my learned brother, ABUBAKAR DATTI YAHAYA, JCA, just delivered.
My brother has stated the facts clearly that lead to this appeal. He has adequately dealt with the issues. There is no doubt the case was properly before the lower court when it assumed jurisdiction to entertain same. It is obvious that the appellant is only playing a delay tactics to frustrate the hearing of the substantive case.
It is for this reason and the reasons in the lead Judgment that I also hold the appeal unmeritorious and it is dismissed. No order as to cost.
Appearances
Mr. ChukwudiFor Appellant
AND
Mr. UgwuegbulamFor Respondent
