PHARMA DEKO PLC. & ANR. V. NIGERIA SOCIAL INSURANCE TRUST FUNDS MANAGEMENT BOARD (2019)

PHARMA DEKO PLC. & ANR. V. NIGERIA SOCIAL INSURANCE TRUST FUNDS MANAGEMENT BOARD

(2019)LCN/13348(CA)

In The Court of Appeal of Nigeria

On Monday, the 29th day of November, 2010

CA/I/M.68/2004

RATIO

POWERS OF THE ATTORNEY GENERAL OF FEDERATION UNDER SECTION 174 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

The first issue to consider is whether Section 174 of the Constitution confers exclusive power on the AGF to institute and conduct criminal proceedings against any person before any court of law in Nigeria. This issue has been the subject of much judicial consideration in the past. In the case of Comptroller, Nigerian Prisons Services, Ikoyi, Lagos & Ors. Vs Dr. Femi Adekanye & Ors. (No. 1) (2002) 15 NWLR (790) 318, the Supreme Court construed Section 160 of the 1979 Constitution, which is in pari materia with Section 174 of the 1999 Constitution. At page 329 D – F, the Court per Belgore, JSC held as follows:
“It is clear from the provisions of S. 160 of the 1979 Constitution that the Attorney General’s power of public prosecution is not exclusive; the “any other authority or person” in subsection (1) can institute and undertake criminal proceedings. The Central Bank of Nigeria and the Nigerian Deposit Insurance Corporation are also authorities that can institute criminal proceedings under Failed Banks (Recovery of Debts) and Financial Malpractices Decree, 1994 (see S. 24 thereof). The Attorney General can institute and undertake criminal proceedings in any court in Nigeria, other than a court-martial in respect of any offences and can take over or discontinue any such proceedings instituted by any other authority or person.” (Underlining mine)
In a more recent decision in: F.R.N. Vs Osahon (2006) 5 NWLR (973) 361, the Supreme Court considered the competence of the Police authority to institute and conduct criminal proceedings having regard to the provisions of Section 23 of the Police Act Cap. 354 Laws of the Federation of Nigeria (LFN) 1990; Section 56(1) of the Federal High Court Act and Section 174 of the 1999 Constitution. At page 405 D – G, the Court per Belgore, JSC held thus:
“Police authority can, by virtue of the aforementioned provisions of S. 174 (1) of the Constitution prosecute any criminal suit either through its legally qualified officers or through any counsel they may engage for the purpose (See Comptroller, Nigerian Prisons Service Lagos Vs Adekanye (No. 1) (2002) 15 NWLR (790) 318 @ 329). “Any other authority or person” can definitely institute criminal prosecution. The powers of the Attorney General of the Federation or of the State are not exclusive, any other person or authority can prosecute. However the Attorney General can take over or continue the prosecution from any such authority or person. He can also discontinue by way of nolle prosequi.” (Underlining mine).
Per Pats-Acholonu, JSC at page 417 E – F:
“The implication of the intendment of section 174(1) aforesaid of the Constitution is that the office of the Attorney General does not have the monopoly of prosecution though it has the power to take over any case in any court and decide whether to go on with it or not.” (Underlining mine).
It follows from the above decisions of the apex court that the power to institute and conduct criminal proceedings is not exclusive to the Attorney-General of the Federation or the Attorney-General of a State.PER KUDIRAT MOTONMORI O. KEKERE-EKUN, J.C.A.

WHETHER THE NSITF MANAGEMENT BOARD CAN INSTITUTE AND CONDUCT CRIMINAL PROCEEDINGS
The next issue is whether the NSITF Management Board was competent to institute and conduct the criminal proceedings, subject of this appeal through J.O. Adewale Esq.
Section 22 of the NSITF Decree No, 73 of 1993 provides as follows: “Subject to Section 160 of the Constitution of the Federal Republic of Nigeria 1979 as amended (which relates to the power of the Attorney General of the Federation to institute, continue or discontinue criminal proceedings), any employee of the board authorized in that behalf by the Board and who is a legal practitioner may before any court of competent jurisdiction conduct or defend any complaint or other proceeding arising under this Decree.” By virtue of Section 315 of the Constitution the NSITF Decree is an existing law.PER KUDIRAT MOTONMORI O. KEKERE-EKUN, J.C.A.

PROVISION OF SECTION 2(3)(A) AND (B) AND 4 OF THE LEGAL PRACTITIONERS ACT 1990

JUSTICE

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUNJustice of The Court of Appeal of Nigeria

SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria

Between

1. PHARMA DEKO PLC.
2. MR. ALEX OVUOBAAppellant(s)

AND

NIGERIA SOCIAL INSURANCE TRUST FUNDS MANAGEMENT BOARDRespondent(s)

KUDIRAT MOTONMORI O. KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against a ruling delivered by the Oyo State High Court, Ibadan Judicial Division (hereinafter referred to as the lower court) on 13/11/03 wherein the preliminary objection filed by the applicants (appellants in this appeal) was overruled.
Being dissatisfied with the ruling the appellants filed a notice of appeal dated 13/2/04 containing two grounds of appeal. The parties duly filed and exchanged their respective briefs of argument in compliance with the rules of this court. At the hearing of the appeal on 20/10/2010, Mrs. E.O. Etomi leading E.O. Maduagwuna for the appellants adopted and relied on the Amended Appellant’s brief dated 2/5/08 and filed on 6/5/08. It was deemed filed on 17/9/08. She relied on an additional authority – Nigerian Journal of Legislation, Jan-March 2004 Vol. 1 No. 1 filed on 3/3/09. She also made some oral submissions in further elucidation of her brief. She urged the court to allow the appeal.
Mrs. E.V. Omotosho, learned counsel for the respondent adopted and relied on the respondent’s brief dated and filed on 27/6/08 and deemed filed on 17/9/08. She also made oral submissions in support of the arguments contained therein and urged the court to dismiss the appeal.
The appellant formulated three issues for determination from the two grounds of appeal. They are as follows:
1. Whether the proceedings herein have been commenced in the manner prescribed by law (Ground 1).
2. Whether J.O. Adewale Esq. has the competence to act for and on behalf of the prosecutor in this (sic) proceedings (Ground 2).
3. Whether the lower court had the jurisdiction to entertain this suit (Ground 2).
The respondent adopted the issues formulated by the appellant although worded slightly differently.
For a better appreciation of the issues in contention in this appeal it is necessary to state briefly the facts that gave rise to the appeal, as can be gathered from the record of proceedings and the briefs of argument of the parties. Proceedings were commenced at the lower court by a charge dated 23/9/02 filed by J.O. Adewale Esq., counsel to the appellant herein (Nigeria Social Insurance Trust Fund Board). It contained two counts as follows:
1st Count
That you Pharma Deko Plc and you, Alex Ovoba (m) Head of Department of Finance, Pharma Deko plc in Agbara Industrial Estate, within Abeokuta Judicial Division, being an employer of labour within the meaning of Nigeria Social Insurance Trust Fund Act No. 73 of 1993 failed and still fail to remit deductions made from the wages/salaries of your workers to the value of N3,494,928.91 to the Nigeria Social Insurance Trust Fund contrary to section 11(1) of NSITF (General) Regulations 1991 and by your failure to remit the aforesaid contributions as prescribed, you committed an offence punishable under Section 20(2) (b) of NSITF Act 1993.
2nd count
That you Pharma Deko Plc and you, Alex Ovoba (m) Head of Department of Finance, Pharma Deko Plc in Agbara Industrial Estate, within Abeokuta Judicial Division, being an employer of labour within the meaning of Nigeria Social Insurance Trust Fund Act No. 73 of 1993 failed and still fail to pay monthly contributions liable to be paid under the Act contrary to section 13 (1) and (2) of the Act and your failure to pay the monthly contributions as prescribed you committed an offence punishable under Section 20 (2) (b) of NSITF Act 1993.
In reaction to this process, the appellants filed a notice of preliminary objection dated 6/12/02 challenging the jurisdiction of the court to entertain the suit on the ground of non-compliance with Section 174(1) & (2) of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as the Constitution). Arguments were heard from both sides in support of and in opposition to the preliminary objection. In a considered ruling delivered on 13/11/03 the learned trial Judge overruled the objection and held at page 26 of the record:
“The above decision prison (Comptroller, Nigerian Prison Services vs. Adekanye) no doubt resolve (sic) the issue whether the Federal Attorney General of the Federation will have to institute the proceeding before private practitioner can take over or not. To me, from the above decision the Nigeria Social Insurance Trust Fund have (sic) been conferred with the power to institute, conduct and undertake Court proceeding without recourse to the office of the Attorney General of the Federation by the implication of the Legal Notice signed by him for the Nigeria Social Insurance Trust Fund and effect of Section 22 of the Nigeria Social Insurance Trust Fund Decree 1993 and I so hold.”
The appellants were dissatisfied with this decision, hence this appeal.
At this stage it is necessary to comment on the issues formulated for determination in this appeal. References to the record of appeal are in respect of the clean copy thereof filed on 10/5/2010 pursuant to an order of this court made on 13/4/2010. In arguing the preliminary objection at the lower court, learned counsel for the appellant raised three issues for determination (page 9 of the record):
A. Whether the proceedings were commenced in accordance with the provision of Section 174 of the 1999 Constitution of the Federal Republic of Nigeria.
B. Whether the proceedings therein were commenced in the manner prescribed by law, that is, the provision of the Criminal Procedure Act.
C. Whether Mr. J.O. Adewale counsel to the complainant had the competence to act for and on behalf of the prosecution in the proceedings.
In reply, learned counsel for the respondent (at page 15 of the record) argued that the issue of failure to follow the proper procedure for instituting a criminal charge (issue B) was not contained [n the preliminary objection filed on 6/12/02. In the ruling, subject of this appeal, the learned trial Judge at page 24 lines 23 – 25 of the record held thus: “Since issue of the charge not been (sic) properly constituted is not in the motion paper before this court as filed on 6/12/2002 it is trite law that the Court cannot rule on the same and I therefore put no weight to the same.”
Consequently he declined to consider the issue or make a pronouncement thereon. There is no appeal against the failure of the learned trial Judge to rule on this issue. The decision in this regard is therefore valid and subsisting and deemed accepted by both parties. Thus the only issue considered by His Lordship was “whether the learned counsel for the complainant not been (sic) a counsel in the office of the Attorney General of the Federation can file this complaint in view of Section 174 of the Constitution of the Federal Republic of Nigeria.” (See page 24 lines 26 – 29 of the record). As stated earlier in this judgment the learned trial Judge held that the NSITF has power to institute criminal proceedings without recourse to the office of the Attorney General of the Federation (hereinafter referred to as AGF) having regard to the Legal Notice signed by him for the NSITF and Section 22 of the Nigeria Social Insurance Trust Fund Decree of 1993. The two grounds of appeal challenge this finding. They are reproduced hereunder without their particulars:
1. “The learned trial Judge erred in law in deciding that Nigeria Social Insurance Trust Fund have (sic) been conferred with powers to institute, conduct and undertake criminal proceedings arising from the operations of its enabling Decree No. 73 of 1993 without recourse to the office of the Attorney General of the Federation by implication of the Nigeria Social Insurance Trust Fund (Legal Officers) (Entitlement to Practice as Barristers and Solicitors) Order 2001 and by virtue of S. 22 of the NSITF Decree No. 73 of 1993.
2. The learned trial Judge erred in law in relying on the decision in Comptroller, Nigerian Prisons Services Vs Adekanye (No. 1) (2002) 15 NWLR (790) 318 as blanket authority for his holding that the Nigeria Social Insurance Trust Fund is empowered to institute, conduct and undertake criminal proceedings as aforesaid without recourse to or authorisation from the (office of the Attorney General of the Federation).”
I have taken the pains to recount what transpired at the lower court because in the course of submissions in their respective briefs of argument and oral arguments in support thereof at the hearing, both learned counsel have addressed issues that do not arise from the ruling appealed against.
The law is that a ground of appeal must be predicated upon the ratio decidendi of the decision appealed against. See: Honika Sawmill (Nig Ltd. Vs Hoff (1994) 2 NWLR (326) 252; Dalek Nig. Ltd. Vs OMPADEC (2007) ALL FWLR 226 F – H. A ground of appeal, which does not arise from the judgment appealed against and the issue for determination formulated from such ground of appeal is liable to be struck out by the appellate court. See: Abubakar Vs Joseph (2008) 13 NWLR (1104) 307; Yadis (Nig.) Ltd. Vs. G.N.I.C. Ltd. (2007) 14 NWLR (1055) 584 @ 598 G – H. My first observation is that the appellant has formulated three issues from two grounds of appeal. It is trite that courts frown at proliferation of issues for determination. While a single issue can encompass several grounds of appeal it is improper to formulate more issues than the grounds of appeal. See: Egbe vs Alhaji & Ors. (1990) 1 NSCC (Vol. 21) (Part 1) 306 @ 332 lines 39 – 44; Ali Vs C.B.N. (1997) 4 NWLR (498) 192 @ 201 D – E; Kalu Vs Odili (1992) 5 NWLR (240) 130 @ 167 – 168; Leedo Presidential Hotel Ltd. vs B.O.N. (Nig.) Ltd. (1993) 1 NWLR (269) 334 @ 347 A – C.
The two issues that clearly arise from the ruling appealed against and the grounds of appeal are issues 1 and 2.
Issue 3 purports to raise the issue of jurisdiction. The law is no doubt settled that the issue of jurisdiction can be raised at any stage of the proceedings and even on appeal, with or without leave of court. See: Gaji Vs Paye (2003) 8 NWLR (823) 583; Oyakhire vs. The State (2006) 7 SCNJ 319 @ 327 line 36 – 328 line 2; Oke vs. Oke (2006) 17 NWLR (1008) 224. A close examination of issue 3 however reveals that the appellants are challenging the competence of the National Assembly to create the Nigeria Social Insurance Trust Fund (NSITF) Board for the purposes of making the payments set out in Section 16 of the NSITF Decree. With respect to learned counsel this issue was not raised at the lower court. It is being raised for the first time in this court. An issue not raised before the lower court cannot be raised before an appellate court without leave. See: Dagaci of Dere Vs Dagaci of Ebwa (2006) 7 NWLR (979) 382 @ 420 G; Uor Vs Loko (1988) 2 NWLR (77) 430. Whether or not the National Assembly has the competence to set up the NSITF Board is not an issue that affects the jurisdiction of the court to entertain the suit before it. Issue 3 is therefore incompetent and accordingly struck out. The submissions in respect thereof in the respective briefs as well as arguments as to whether the action was properly constituted in view of the provisions of the Criminal Procedure Act are accordingly discountenanced.
The appeal shall therefore be determined on the appellants’ issues 1 and 2. Issue 1 arises from Ground 1 of the notice of appeal. For the sake of clarity it is modified thus:
“Whether the learned trial Judge was right when he held that the Nigeria Social Insurance Trust Fund has powers to institute, conduct and undertake criminal proceedings without recourse to the office of the Attorney General of the Federation.”
Issues 1 and 2 shall be considered together.
In respect of the power of the NSITF to institute, conduct and undertake criminal proceedings, learned counsel for the appellants referred to Section 174 (1) and (2) of the Constitution. He submitted that the respondent, not being a counsel in the office of the Attorney General and not being authorised by him had no authority to institute the action. He submitted that the charge filed by counsel to the NSITF not acting for or on behalf of the AGF is incompetent and should be declared invalid. He submitted that the only purpose of the NSITF (Legal Officers) (Entitlement to Practice as Barristers and Solicitors) Order 2001 (hereinafter referred to as the Legal Notice) is to enable an employee of the respondent to practice as a barrister and solicitor. He argued that it does not contain a fiat from the Attorney General of the Federation (AGF) and does not amount to a delegation of authority from the AGF under Section 174 of the Constitution. He referred to: Onyeukwu Vs. State (2000) 12 NWLR (681) 256 @ 266; Owoh (1962) 1 ALL NLR 659; D.P.P. Vs Akozor (1962) 1 All NLR 235.
On the competence of J.O. Adewale to represent the NSITF he referred to Section 60 (3) of the Criminal Procedure Act, which provides that a complaint may be made by the complainant in person or by a legal practitioner representing him or by any person authorised in writing in that behalf. He argued that J.O. Adewale is not competent to represent the prosecutor in the proceedings or to act as a legal practitioner or as a person “authorised in that behalf”. Learned counsel submitted that the NSITF is a corporation aggregate. He submitted that there is nothing in the NSITF Decree that takes the Fund out of the rule of common law under which a Corporation Aggregate can only appoint an agent by instrument under its common seal. He referred to the Supreme Court decision in: Adeagbo Ode & Yesufu Motosho & Ors. vs. The Registered Trustees of the Diocese of Ibadan (1966) 1 All NLR 287 (old series) @ 292 F-G. He urged the court to hold that even if Mr. J.O. Adewale could act as legal practitioner, his appointment could only become operative after it had been ratified under seal.
In reaction to the submissions of learned counsel for the appellants, learned counsel for the respondent referred to Section 174 of the Constitution and submitted that the reference to criminal proceedings that may have been instituted “by any other authority or person” in Section 174(1) (b) and (c) of the Constitution shows that the Constitution recognizes the power of any other authority or person to institute and conduct criminal proceedings. He maintained that the power is not exclusive to the Attorney General. He referred to the Supreme Court decision in: Comptroller of Nigeria Prisons Vs Adekanye (2002) 15 NWLR (790) 318 @ 329 D – E and Sections 2(3) (b) and (4) of the Legal Practitioners Act. He submitted that the sections of the Legal Practitioners Act are in conformity with Section 33 of the Interpretation Act Cap 192 Laws of the Federation 1990. He concluded that either by creation of statute or by a delegation of powers by the Attorney General, any other person or authority could institute, undertake and conduct criminal proceedings in a court of law.
On the competence of Mr. J.O. Adewale to represent the respondent, he referred to Section 22 of the NSITF Act. He submitted that the Legal Notice of 2001 was issued pursuant to the power conferred on the AGF by Sections 2 (3) (b) and (4) of the Legal Practitioners Act. He noted the names of 24 legal practitioners, including J.O. Adewale were listed in the schedule to the Legal Notice as being entitled to practice as barristers and solicitors of the NSITF. He submitted that by the combined effect of Section 22 of the NSITF Act and the Legal Notice of 2001 signed by the AGF, it is the intention of the legislature that the NSITF must be able to prosecute offences created under the Act without prejudice to the power of the Attorney General. He submitted that whereas Section 2 (1) of the Legal Practitioners Act provides a general condition precedent for a legal practitioner to practice as a barrister and solicitor, the Legal Notice of 2001 gives specific power to certain legal practitioners to practice as barristers and solicitors for the purpose of their offices in respect of matters arisinq under the NSITF.
In reaction to the submission that the NSITF is corporation aggregate, he submitted that the NSITF was established by the Nigeria Social Insurance Trust Fund Act of 1993 and that by virtue of Section 315 of the Constitution it is an existing law and is deemed to be a law enacted by the National Assembly. He submitted further that by Section 318 of the Constitution, public service of the Federation is defined as service of the Federation in any capacity in respect of the Government of the Federation and includes service as “(e) staff of any statutory corporation established by an Act of the National Assembly.” He submitted that by virtue of the above provision, the NSITF is a public service of the Federation and not a corporation aggregate. He argued that the fact that the Fund has the capability to sue and be sued in its name does not make it a corporation aggregate, as it is neither limited by shares nor limited by guarantee. He submitted that the requirements necessary for incorporation of companies and every other requirement that relates to public and private companies under the Companies and Allied Matters Act do not apply to the NSITF. He noted that the Fund is not expected to file its annual returns to the Corporate Affairs Commission, as its only obligation is to prepare and submit a report on the activities of the Board to the President, Commander in Chief of the Armed Forces, which shall include its audited accounts and the Auditor General’s report. He referred to Section 30 of the NSITF Act.
On the status of the National Provident Fund, which was replaced by the NSITF, he referred to the Supreme Court decision in: Ansaldo Vs N.P.F.M.B. (1991) 2 NWLR (174) 392. He submitted that the Fund is a parastatal, a statutory body and an organ of the Federal Government, as reflected in the composition of the Board and the appointment of the Managing Director and Executive Directors. He referred to Sections 4 and 7 (1) of the NSITF Act. He submitted that the Fund is an agency of the Federal Government directly under the supervision of the Ministry of Labour. He referred to Section 4 (1), 5 (3) & (4), 40 (1) and 22 of the Act. He argued that the Legal Notice of 2001 was sufficient authority for any legal practitioner authorised in that behalf to represent the Fund. He argued further that since the Fund is not a corporation aggregate it is unnecessary for J.O. Adewale’s appointment to be ratified under seal.
Section 174 of the Constitution provides:
“174. (1) The Attorney-General of the Federation shall have power –
(a) to institute and undertake criminal proceedings against any Person before any court of law in Nigeria, other than a court martial, in respect of any offence created by or under any Act of the National Assembly;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority.
(2) The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department.
(3) In exercising his powers under this section, the Attorney-General of the Federation shall have due regard to the public interest, the interest of justice and the need to prevent abuse of legal process. ”
The first issue to consider is whether Section 174 of the Constitution confers exclusive power on the AGF to institute and conduct criminal proceedings against any person before any court of law in Nigeria. This issue has been the subject of much judicial consideration in the past. In the case of Comptroller, Nigerian Prisons Services, Ikoyi, Lagos & Ors. Vs Dr. Femi Adekanye & Ors. (No. 1) (2002) 15 NWLR (790) 318, the Supreme Court construed Section 160 of the 1979 Constitution, which is in pari materia with Section 174 of the 1999 Constitution. At page 329 D – F, the Court per Belgore, JSC held as follows:
“It is clear from the provisions of S. 160 of the 1979 Constitution that the Attorney General’s power of public prosecution is not exclusive; the “any other authority or person” in subsection (1) can institute and undertake criminal proceedings. The Central Bank of Nigeria and the Nigerian Deposit Insurance Corporation are also authorities that can institute criminal proceedings under Failed Banks (Recovery of Debts) and Financial Malpractices Decree, 1994 (see S. 24 thereof). The Attorney General can institute and undertake criminal proceedings in any court in Nigeria, other than a court-martial in respect of any offences and can take over or discontinue any such proceedings instituted by any other authority or person.” (Underlining mine)
In a more recent decision in: F.R.N. Vs Osahon (2006) 5 NWLR (973) 361, the Supreme Court considered the competence of the Police authority to institute and conduct criminal proceedings having regard to the provisions of Section 23 of the Police Act Cap. 354 Laws of the Federation of Nigeria (LFN) 1990; Section 56(1) of the Federal High Court Act and Section 174 of the 1999 Constitution. At page 405 D – G, the Court per Belgore, JSC held thus:
“Police authority can, by virtue of the aforementioned provisions of S. 174 (1) of the Constitution prosecute any criminal suit either through its legally qualified officers or through any counsel they may engage for the purpose (See Comptroller, Nigerian Prisons Service Lagos Vs Adekanye (No. 1) (2002) 15 NWLR (790) 318 @ 329). “Any other authority or person” can definitely institute criminal prosecution. The powers of the Attorney General of the Federation or of the State are not exclusive, any other person or authority can prosecute. However the Attorney General can take over or continue the prosecution from any such authority or person. He can also discontinue by way of nolle prosequi.” (Underlining mine).
Per Pats-Acholonu, JSC at page 417 E – F:
“The implication of the intendment of section 174(1) aforesaid of the Constitution is that the office of the Attorney General does not have the monopoly of prosecution though it has the power to take over any case in any court and decide whether to go on with it or not.” (Underlining mine).
It follows from the above decisions of the apex court that the power to institute and conduct criminal proceedings is not exclusive to the Attorney-General of the Federation or the Attorney-General of a State.
The next issue is whether the NSITF Management Board was competent to institute and conduct the criminal proceedings, subject of this appeal through J.O. Adewale Esq.
Section 22 of the NSITF Decree No, 73 of 1993 provides as follows: “Subject to Section 160 of the Constitution of the Federal Republic of Nigeria 1979 as amended (which relates to the power of the Attorney General of the Federation to institute, continue or discontinue criminal proceedings), any employee of the board authorized in that behalf by the Board and who is a legal practitioner may before any court of competent jurisdiction conduct or defend any complaint or other proceeding arising under this Decree.” By virtue of Section 315 of the Constitution the NSITF Decree is an existing law.

Section 2 (3) (a) & (b) and (4) of the Legal Practitioners Act 1990 provides:
“2.(3) A person for the time being exercising the functions of any of the following offices, that is to say –
(a) the office of the Attorney General, Solicitor-General or Director of Public Prosecutions of the Federation or of a State;
(b) such offices in the civil service of the Federation or of a State as the Attorney General of the Federation or of the State, as the case may be, may by order specify, shall be entitled to practice as a barrister and solicitor for the purposes of that office.
(4) A certificate signed by, or by a person authorised either generally or specially in that behalf, any of the persons mentioned in paragraph (a) of subsection (3) of this section stating that a particular individual is exercising the functions of a particular office shall, without prejudice to any other means of proof, be conclusive proof for the purposes of that subsection that the individual is exercising the functions of that office; and any document purporting to be a certificate under this subsection shall be admitted in evidence and, until the contrary is proved, be deemed to be such a certificate.”
In the case of D.P.P. Vs Akozor (supra) the Supreme Court construed Section 97 of the 1960 Constitution, which gave the Director of Public Prosecutions for the Federation powers similar to those conferred on the Attorney General of the Federation under section 174 of the 1999 Constitution, and held that the Director of Public Prosecutions had the power to instruct a private legal practitioner to appear in a criminal case on his behalf. See also: The State Vs Collins Aibangbee & Anor. (1988) 3 NWLR (84) 548 @ 578; Nafiu Rabiu Vs Kano State (1980) 8 – 11 SC 130.
Addressing this issue with regard to Section 174 of the 1999 Constitution, the Supreme Court in F.R.N. Vs Osahon (supra) at page 417 F – H opined thus:
“Generally speaking, any legal practitioner not disbarred except under some restriction recognised by the primary law of the land has the right of audience in any court. This equally implies that in appropriate cases such a legal practitioner coming under the description as contained in the Legal Practitioners Act has the right of appearance, which term includes prosecuting a case, and can due to the wide open door of section 174 (1) initiate criminal prosecution on behalf of the agency he works for, particularly as in this case, an institutional body vested with power to check, prevent and investigate crimes and even to Prosecute.”
From the above authorities, a legal practitioner duly authorized by the Attorney General of the Federation or of a state is competent to initiate and conduct criminal proceedings in a court of law. In the instant case, it is not in dispute that in the exercise of his powers under Section 174 of the constitution and section 2 (3) & (4) of the Legal Practitioners Act, the Attorney-General of the Federation issued a Legal Notice, namely the NSITF (Legal Officers) (Entitlement to Practice as Barristers and Solicitors) Order of 2001. Section 1 (1) and (2) thereof Provides:
“1(1) The legal practitioners who are mentioned in the schedule hereunder, who are for the time being holding and exercising the functions of the office of legal officers of the Nigeria Social Insurance Trust Fund shall, for the duration of the tenure of such offices be entitled to practice as Barristers and Solicitors for the purposes of the office.
(2) In this section, reference to the office of Legal Officers includes any re-designation of the offices as a consequence of promotion or upgrading of the holder thereof and reference to Nigeria Social Trust means the fund of that name established pursuant to the Nigeria Social Insurance Trust Fund Act 1993.” (underlining mine)
I am inclined to agree with learned counsel for the respondents that the purpose of the Legal Notice is to give effect to Section 22 of the NSITF Decree to enable Legal Officers of the Fund to prosecute the offences created under the Decree. Its purpose could not be, as contended by learned counsel for the appellants, merely to enable the persons named in the schedule thereto to practice as barristers and solicitors.
That right has already been conferred on them by the Legal Practitioners Act.
The courts have considered the constitutionality of a Legal Notice such as the one issued in respect of this case. In Ibrahim vs. The State (1986) 1 NWLR (18) 650 @ 662 C – F, the Supreme Court held that the Legal Notice was valid and constitutional even though it frowned at the wide delegation of powers to sundry legal officers in that particular instance. It recognised the Attorney General’s absolute discretion under section 191 of the 1979 Constitution to make a general or specific delegation of his powers to:
a. institute and undertake criminal proceedings;
b. take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
c. discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person. (See page 457 E- F supra).
In the instant case, the Attorney General, by the Legal Notice aforesaid, authorised 24 legal practitioners, including J.O. Adewale Esq. to practice as barristers and solicitors for the purpose of the function of their office. This includes the authority to institute criminal proceedings in respect of any offence committed under the NSITF Decree. I am of the respectful view that the Legal Notice constitutes a valid delegation of power by the Attorney General of the Federation. In light of all that has been said in the course of this judgment, the two issues for determination must be and are hereby resolved against the appellants.
In conclusion the appeal lacks merit and is hereby dismissed. The ruling of the High Court of Oyo State, Ibadan Judicial Division in Charge No. FHC/AB/54C/2002 is hereby affirmed. There shall be costs assessed at N30,000.00 in favour of the respondent against the appellants.

SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Kekere-Ekun, J.C.A, I agree with the reasoning and conclusion reached. I also dismiss the appeal and affirm the Ruling of the lower court delivered on 13th November, 2003.
I also abide by the consequential orders made in the lead judgment including the order on costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I was opportuned to read in advance learned brother, KEKERE-EKUN, J.C.A.,
with which I am in absolute agreement. I adopt same as mine.
I wish to stress that J. O. Adewale Esq., a legal practitioner by profession, was competent to institute and prosecute the criminal proceedings in charge No.FHC/AB/54c/2002 before the High Court of Justice Oyo state holden at Ibadan against the appellants, on behalf of his employer, the respondent – see Mike Amadi V. Federal Republic of Nigeria (2008) 12 S.C.N.J. (Pt.11) 705 at 714 to 715 where the great jurist Mukhtar, J.S.C., said:
“Mr. Hassan the member of staff of the EFCC who signed the charge was competent to do so. Any member of the staff of EFCC can exercise the power delegated to the EFCC in Exhibit “A”. That is why I am in fact in agreement with the learned Justice of the Court of Appeal when in his judgment he stated the following:-
“The position in criminal trial is different. In view of the high premium attached to speedy disposal of criminal cases, the Attorney-General of the States delegate their powers to the various States Commissioners of police who institute and prosecute criminal matters in the name of such Commissioners of police. Such powers are also delegated to the Federal Board of Internal Revenue, Nigeria Customs Service and lately EFCC by the Attorney-General of the Federation. This arrangement is made possible subject to the provisions of sections 174(1)(b)(c) and 211(1)(b)(c) of the Constitution of the Federal Republic of Nigeria 1999 which provide that the Attorney-General of the Federation or State, as the case may be, shall have power to take over and continue any such criminal proceedings instituted by any other authority or person, and to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person. (underlining is mine).””This is the correct position of the law. The learned justice has put it down succinctly and he did not err in doing so.” See also Unipetrol Nigeria Plc. v. Edo Board of Internal Revenue (2006) 4 SCNJ 99.
The strength of the said powers arose from delegation to the respondent by the Attorney General of the Federation by Legal Notice contained in the NSITF (Legal Officers) (Entitlement to Practice as Barristers and solicitors)Order 2001, considered together with section 22 of the Nigeria Social Insurance Trust Fund (NSITF) Decree No. 73 of 1993, which was saved as an existing law by section 315 of the Constitution of the Federal Republic of Nigeria, 1999.
The appeal is unmeritorious. I dismiss it and abide by the consequential orders embodied in the incisive judgment of my learned brother KEKERE-EKUN, J.C.A.
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Appearances

Mrs. E.O. Etomi;
E.O. MaduagunwaFor Appellant

AND

Mrs. E.V. OmotoshoFor Respondent