SERAH EKUNDAYO EZEKIEL vs. ATTORNEY GENERAL OF THE FEDERATIONCase Laws . Supreme Court
SERAH EKUNDAYO EZEKIEL vs. ATTORNEY GENERAL OF THE FEDERATION
In the Supreme Court of Nigeria
Friday, March 10, 2017
Case Number: CA.389/2014
MUSA DATTIJO MUHAMMAD
CLARA BATA OGUNBIYI
CHIMA CENTUS NWEZE
SERAH EKUNDAYO EZEKIEL
ATTORNEY GENERAL OF THE FEDERATION
(Delivered by Chima Centus Nweze, JSC)
The appellant In this appeal and others were arraigned before the Federal High Court, Ikeja Judicial Division, on November 18, 2011; on a Charge which alleged the offence of trafficking in persons contrary to Sections 15 (a); 15 (c ); 16; 19 (1) (b); 19 (1) (d) and 21 of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended).
Miss Nneka Adaora Ajie, a Law Officer of NAPTIP, signed the Charge dated November 18, 2011, woven around eighteen Counts, for the Honourable Attorney General of the Federation.
A year later, precisely, on November 18, 2012, the said Miss Nneka Adaora Ajie, on behalf of the Honourable Attorney General of the Federation amended and signed the Charge, again, anchored on eighteen counts against the appellant only.
She was alleged to have committed offences of trafficking in persons contrary to Sections 15 (a); 15 (c ); 16; 19 (1) (b); 19 (1) (d) and 21 of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended).
Upon her arraignment on the amended charge on February 24, 2012, the appellant, who was unrepresented, pleaded guilty to all the Counts. The court, (hereinafter referred to as “the trial court”), in consequence, finding her guilty as charged, convicted her on the eighteen Counts of the Charge and sentenced her to various degrees of sentences: all sentences to run concurrently.
Aggrieved by her conviction and sentence, she appealed, unsuccessfully to the Court of Appeal Lagos Division (throughout this judgement, simply, referred to as “the lower court”), which court affirmed the Trial Court’s verdict.
This further appeal is the appellant’s expression of her disgust against the lower court’s affirmation of the trial Court’s decision. She framed two issues for the determination of her appeal: issues which were endorsed by the respondent. They were couched thus:
1. Whether Law Officers of the National Agency For the Prohibition of Traffic (sic) in Persons and Other Related Hatters (NAPTIT) (sic) are officers in the Department of the Attorney General of the Federation and can sign Charge or Processes initiated by the
Attorney General of the Federation for and on behalf of the Attorney General of the Federation?
2. Whether if the lower court had considered the submission of the appellant’s counsel that the appellant was a victim of the offences she was charged (sic) and first. offender, the lower court would not have come to the conclusion that the learned trial Judge has (sic) eminently exercise (sic) his discretion judiciously and judicially thereby reduce (sic) the sentences passed on the appellant?
ARGUMENTS ON THE ISSUES
Whether Law Officers of the National Agency For the Prohibition of Traffic (sic) in Persons and Other Related Hatters (NAPTIT) (sic) are officers in the Department of the Attorney General of the Federation and can sign Charge or Processes initiated by the Attorney General of the Federation for and on behalf of the Attorney General of the Federation?
At the hearing of this appeal on December 15, 2016, E. A Oyebanji, learned counsel for the appellant adopted the brief filed on August 5, 2014 and the Reply brief filed on March 3, 2015, although deemed, properly filed on June 4, 2015 as representing his arguments in this appeal.
The crux of his arguments was that, although by the provisions of Section 174 (2) of the 1999 Constitution (as amended), the Attorney General’s powers to initiate and undertake criminal proceedings may be exercised by him in person or through the officers of his department, the officers of the Agency under his control and supervision cannot do so, citing Obi v INEC  7 SC 268, 315.
In his submission, therefore, the exercise of that power by the officers of NAPTIP was a gross violation of Section 174 (1) (b) (supra). He contended that the lower courts were wrong in resorting to Section 4 (c), 60 and 64 of the [NAPTIP Act (supra), citing pages 155 -156 of the
record because the said Act did not make the Agency a department in the office of the Attorney
General. He maintained that Section 174 (2) (supra) provides for a department of the Attorney General of the Federation” and not “departments of the Attorney General” As such, NAPTIP, in his submission, does not qualify as a department within the meaning of Section 174 (2) (supra).
According to him, Section 150 of the Constitution (supra) recognises only Law Officers in the Federal Ministry of Justice. He urged the court to give Section 174 (2) (supra) its simple and ordinary meaning, citing Dangana and Anor v Usman and Ors  2 SC (pt 111) 103, 133 -134; Fawehinmi v IGP  7 NWLR (pt 665) 481; Awolowo v Shagari  SC 51;  6 -9 SC) 37: AG, Nassarawa State v AG, Plateau State  3 SC (pt 11) 1, 67.
He canvassed the view that, since the Agency, a creation of the above constitutive Act, is endowed with perpetual succession and power to sue and be sued in its corporate name, with no provision therein making it a department in the Attorney General’s office, it [NAPTIP] could not initiate the charge in its name but on behalf of the Attorney General, citing Sections 1; 2 (a) and (b) and 5 of the : Act (supra) and 174 of the Constitution (supra); FRN v Adewumi  10 NWLR (pt 1042).
He cited authorities for his proposition that if a statute or piece of legislation prescribes that a particular document shall only be signed by a particular officer, it is mandatory that only that officer, and no other, shall sign the document. His authorities are Awobutu v The State  AllNLR 237;  4 SC 27; Plymouth Corporation v Hurell (1968) 1 QB 455; Graddage v Harringay LBC (1975) 1 WLR 241, 249; prince Blucher Ex parte Debtor (1931) 2 CH 70, 72- 75; London County Council v AFP Ltd and Anor (1955) 2 QB 2-8.
Against the background of the above submissions, he took the view that Charge No FHC/IKJ/CR/2/2011 of December 22, 2011 was incompetent since it was neither signed by the Attorney General himself nor an Officer of his Department In his submission, therefore, the entire proceedings constituted an abuse of process and a violation of Section 174 – (3) Constitution, thereby, robbing the trial Court of its jurisdiction, Madukolu and Ors v Nkemdilim (1962) All NLR 587.
He maintained, therefore, that, since the said Charge was not initiated as shown above, it was not initiated by due process, Section 174 (3) of the Constitution (supra).
He, accordingly, impugned the approach of the lower court, INEC v Musa  3 NWLR (pt 806) 72;  1 SC (Pt 1) 106. In his view, the appellant would not have complained if Miss
Nneka Adaora Ajie had signed the said Charge on behalf of the Federal Republic of Nigeria, citing FRN v Osahon and Ors  2 SC (pt 11) 1 and Torri v National Park Service of Nigeria  6 -7 SC (pt 111) 171.
On his part, C. J Asiegbu, Assistant Chief Legal Officer, NAPTIP, adopted the brief of argument filed on October 23, 2014. It was contended that, since neither the Constitution nor the Interpretation Act defined the word “department” only other aids to interpretation would solve the conundrum occasioned by the lacunae, citing Custom of Finance and Economic Development and Anor v Ukpong and Anor (2000) LPELR -6931 (CA).
Counsel re-iterated the settled position that, where the provisions of the Constitution are amenable to two meanings, the court has a duty to opt for the meaning that would give force and effect to the Constitution read together as a whole and promote its object and purpose, Kalu v State (1998) LPELR -1655 (SC); hence, a court would never lean in favour of an interpretation that would defeat the very essence of the Constitution, Ansaldo Nig Ltd v NPFMB  LPELR -498 (SC).
He canvassed the view that NAPTIP qualifies as a department under the Attorney General’s office and its Law Officers are, therefore, competent to sign charges, citing Section 4 (1); 9 (2); 60 (1) (2) and (3) of the TIPPLEAA, 2003 (as amended) and the views of the lower court on the above provisions at pages 154, 156 and 157 of the record.
Citing Nyame v FRN  7 NWLR (pt 1173) 344; FRN v Adewunmi  10 NWLR (pt 1042) 399, 418 419, he submitted that criminal proceedings are commenced either in the name of the Federal Republic of Nigeria or the Attorney General of the Federation.
He maintained that the presumption of administrative and judicial acts inures in favour of the respondent and the onus is on the appellant to dislodge it, Comptroller of Prisons v Adekanye and Ors (No 1)  15 NWLR (pt 790) 318, 330. He pointed out that, since the appellant did not complain about the defect on the face of the Charge, by the operation of Section 167 of the CPA, it was too late to do so.
RESOLUTION OF THE ISSUE
The principal complaint of the appellant in this appeal runs like a thread throughout the gamut of the submissions on this issue, It is that, since Miss Nneka Adaora Ajie, a Law Officer of NAPTIP, did not sign the amended Charge before the trial court in the name of the Attorney General, the entire proceedings were vitiated. The logic of this sophistic, albeit, vacuous argument is that NAPTIP is not a department in the office of the Attorney General.
Now, Section 174 (supra) provides thus:
(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;
(2) The powers conferred upon the Attorney-General of the Federation under subsection 91) of this section may be exercised by him in person or through officers of his department.
[italics supplied for emphasis]
My Lords, from a conspectus of the pronouncements of this court on the above section of the Constitution, it is evident that all Agencies charged with prosecutorial powers are qualified to initiate criminal charges in court. Indeed, even legal practitioners briefed by the Attorney General are competent to initiate charges, FRN v Adewunmi  10 NWLR (pt 1042) 399; Comptroller, NPS v Adekanye (No 10  15 NWLR (pt 790) 318; AG, Kaduna State v Hassan  2 NWLR (pt 8) 483; The State v Manges and Anor F19S8] 3 NWLR (pt 84) 548, 578;  7 SCNJ (pt 1) 128, 137, 153; DPPv Akozor (1962) 1 All NLR 235;  1 SCNLR 355; Nafiu Rafiu v Kano State  8 -11 SC 130; Osahon and Ors  5 NWLR (pt 973) 351; Amadi v FRN 18 NWLR (pt 1119) 259, 276.
With particular reference to NAPTIP, it is even clear that Sections 4(1) and 9 (2) of its
constitutive Act, put this matter beyond doubt. On the one hand, Section 4 (1) (supra) assigns the Agency the responsibility for supervision and coordination of activities relating to investigation and prosecution of all offences connected with or relating to trafficking in persons and other related matters in consultation with the Attorney General.
On the other hand, Section 9 (2) (supra) assigns its legal department the responsibility for prosecuting offenders under the Act. In interpreting the chiaroscuro of provisions of the NAPTIP Act, the lower court concluded that:
…that for the purposes of investigation and prosecution of matters, law officers of the Agency are under control and general supervision of the Attorney General and can, in the circumstances, sign processes and charges for and on behalf of the Attorney General of the Federation
[page 157 of the record; italics supplied for emphasis]
I, entirely, endorse this conclusion as it is tandem with the position of this court, FRN v Adewunmi (supra); Comptroller, NPS v Adekanye (supra); AG, Kaduna State v Hassan (supra); The State v Aibangee and Anor (supra); DPP v Akozor (supra); Nafiu Rafiu v Kano State (supra); Osahon and Ors (supra). In effect, Miss Nneka Adaobi Ajie, a Law Officer of NAPTIP, was competent to sign the amended charge, Amadi v FRN (supra) 276.
Worse still, the appellant did not object to the amended charge but, rather, pleaded guilty. The complaint in this appeal is, therefore, belated, Amadi v FRN (supra). Indeed, as this court held in Nyame v FRN,” it is not a defence known to law that an accused [person] cannot” be prosecuted by the authority with prosecutorial powers …every prosecutor or authority or agency vested with the powers to prosecute should be encouraged to carry out their duties”
In all, there is no merit in the complaint in this issue which I resolve against the appellant.
Whether if the lower court had considered the submission of the appellant’s counsel that the appellant was a victim of the offences she was charged (sic) and first offender, the lower court would not have come to the conclusion that the learned trial Judge has (sic) eminently exercise
(sic) his discretion judiciously and judicially thereby reduce (sic) the sentences passed on the appellant?
The complaint in this issue turned, essentially, on the lower courts affirmation of the trial court’s sentence imposed on the appellant. He cited statutory and case law authorities, paragraphs 5, 1- 5.17, pages 9-14 of the brief.
On his part, counsel for the respondent submitted that sentence is at the discretion of the Judge. He pointed out that the lower court referred to the factors which influenced the trial court in imposing the various degrees of sentences, page 162 of the record.
RESOLUTION OF THE ISSUE
It would only be proper to look at the factors that influenced the trial court’s discretion in the imposition of sentences. Listen to this:
I have heard plea of this convict for leniency. The offences for which the convict has been convicted are offences that are not only immoral, wicked and callous; they are offences that challenge the existence of society, If this trend is not checked the society will wake (sic, up) too late to discover that its very existence is gone. The young girls trafficked are meant to be mothers of tomorrow. If they are allowed to be educated and settle down in marriage, they will be the mother (sic) of our tomorrow. Our next generation of leaders could even be born by this convict. It is terrifying that a lady could go this far to sell young Nigerian girls into prostitution in Mali.
The offences are grievous and the court must not give this kind of situation any opportunity to flourish. The convict will be given the sentence that will be a deterrent to other like-minded criminals
[pages 68 -69 of the record; italics supplied]
In affirming the above approach, the lower court announced most perceptively:
Now looking at the sentences imposed by the trial court viz-a-viz the facts of this case and the factors that guide (sic) the trial court, I do not find anything in the submission of learned counsel to the appellant that will persuade me to disturb the sentences passed by the learned trial Judge. I am
satisfied that the learned trial Judge has eminently exercised his discretion not only judiciously but judicially
[pages 163 of the record; italics supplied]
My Lords, like the lower court, I am, equally, enamoured of the approach of the trial court. I,
Therefore, affirm its endorsement of the position of the trial court. Permit me, however, to add that it is, indeed, very worrisome that the insatiable allure of filthy lucre could impel a woman to traffic in young girls [whom the trial court, aptly, described—as “mothers of tomorrow”] knowing fully well that the end result would be the ultimate debasement of womanhood: how immoral How disgusting!
In all, it is rather too late to complain since the appellant was visited with the appropriate, comeuppance for her despicable greed! If I may ask: of what use is all that wealth, presumably, acquired in such shameful circumstances?
My Lords, before I end this very short judgement in this appeal – an appeal which counsel ought to know should not have nudged its way to this rare judicial altitude – permit me to avail the appellant, and all persons of her ilk, of one of those arcane insights I gained from my long and fruitful sojourn in the realm of the history of ideas.
It is the profound wisdom ingrained in the aphorism which Social Ethicists left behind for an avaricious humanity, namely, amo habemo habendi crescit the love of having increases with having. In other words, there would be no limit to the cravings for material things unless people rein in their unquenchable appetite for them. After all, they are notable only for their evanescence!
In all, I find no merit in this appeal. I have no hesitation in entering an order dismissing it. Appeal dismissed.
(Delivered by MUSA DATTIJO MUHAMMAD, JSC)
I had the priviledge of reading in draft the lead judgment of my learned brother Nweze JSC with whose reasoning and conclusion that the appeal being bereft of any merit stands dismissed. I abide by the consequential orders contained in the lead judgment.
(Delivered by Olabode Rhodes-Vivour, JSC)
I have had the advantage of reading a draft copy of the leading judgment of my learned brother Nweze, JSC. I agree with his lordship that there is no merit in this appeal. I shall add a few words of my own on issue No.1 It reads:
Whether law Officers of National Agency for the Prohibition of traffic in Persons and other related matters (NAPTIP) are officers in the deportment of the Attorney General of the Federation and can sign charge or processes Initiated by the Attorney General of the Federation for and on behalf of the Attorney General of the Federation.
The appellant pleaded guilty to an amended 18 counts charge of Trafficking in persons contrary to sections 15 (a), (c); 16,19 (1 (b), (d) and 21 of the Trafficking in persons (Prohibition) Law Enforcement and Administration Act 2003.
The appellant was sentenced to various terms of imprisonment. She decided to appeal. Issue 1 in the Court of Appeal was that Miss Ajie Nneka Adaora, who signed the amended charge sheet, signed in clear usurpation of the Constitutional power of the Attorney General, since she is not an officer in the department of the Attorney General of the Federation. It is the submission of learned counsel for the appellant that the Court of Appeal should have set aside the judgment of the trial court as that court had no jurisdiction to entertain the 18 counts amended charge.
The Record of Appeal shows that at the end of the l8 counts charge this is what is recorded:
“Dated this 22 Day of December 2011
AJIE NNEKA ADAORA PRINCIPAL LEAGL OFFICER
FOR: ATTORNEY GENERAL OF THE FEDERATION”
After examining the above the Court of Appeal said:
“………From the records the arraignment of the appellant was done in my view in substantial compliance with the law. There is nothing on the face of the charges to show that the signatory signs the charges on behalf of any other person other than the Attorney General of the Federation”
Section 174 of the Constitution confers power on the Attorney General of the Federation for public prosecutions. It reads:
“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 or person.
(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 regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
By the provisions of section 174 of the constitution the following can institute and prosecute criminal offences in our courts.
1. The Attorney General and officers in his department;
2. Legal Practitioners briefed by the Attorney General. That is those who obtain a Flat from the Attorney General.
3. Agencies with prosecutorial powers.
See Comptroller Nigeria Prison Service & Ors v
Adekanye (NO.7) (2002) 15 NWLR (Pt.790) p.318
Criminal Prosecutions are under the control of the Attorney General of the Federation. That explains why he can take over and continue criminal proceedings or discontinue them even if they were instituted by any other authority or person.
It is important at this stage that I consider the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003 Cap T 23 Vol.14 Laws of the Federation of Nigeria.
It is legislation that established the National Agency for prohibition of traffic in persons. It was also an officer of this Agency by name Ajie Nneka Adaora that signed the 18 counts charge filed against the appellant at the trial court.
Section 4 (L) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration
Act states that”
4. The Agency shall be responsible for-
(I) Taking charge of, supervising, controlling, coordinating all the responsibilities. Functions and activities relating to current Investigation and prosecution of all offences connected with or relating to traffic in persons and other related matters in consultation with the Attorney General of the Federation.
While section 9(2) supra reads:
9(2) The Legal Department shall be responsible for prosecuting offenders under this Act, supporting the investigation department with legal advice and assistance whenever it is required, acting as secretariat to the Board, conducting such proceedings as may be necessary towards the recovery of any asset or properties forfeited under this Act and performing such other legal duties as the Agency may refer to from time to time.
Furthermore section 60 (1), (2) and (3) supra confers power on the Minister to give directives
to the Agency.
(1) The Minister may from time to time, give general policy guidelines to the Agency.
(2) Without prejudice to the generality of the provisions of subsection (1) of this section the Minister may give to the Agency directives.
(3) The Agency shall apply with any policy guideline or any directive given to it by the Minister pursuant to subsection (1) or (2) of this section.
The Minister referred to in section 60 (1), (2) and (3) of the Trafficking in Persons (Prohibition)
Law Enforcement and Administration Act is the Attorney General of the Federation and Minister of Justice.
A diligent reading of sections 4 (I), 9(2) and 60 (1), (2) and (3) (supra) reveals that the Agency is under the direct control of the Attorney General of the Federation in investigative and prosecutorial matters on issues of Trafficking in persons.
The Attorney General of the Federation has power to give official instructions to the Agency in matters to do with prosecution of persons who traffic in persons. The Agency is thus under the Attorney General’s instructions and guidance A criminal charge or process is initiated-on-behalf of the Attorney General of the Federation. Officers of the Agency can sign charges/s or processes on behalf of the Attorney General of the Federation since it is clear from the Legislation that all charge/s emanating from the Agency are prepared with the Attorney General’s knowledge and approval.
The ‘signing of the 18 counts amended charge sheet by Miss Ajie Nneka Adaora, a principal legal Officer in the Agency does not amount to a usurpation of the constitutional power of the Attorney General, rather it amounts to signing the said process for and on behalf of the Atfofneyl5eTiBral with his clear instructions.
It is for this and the more detailed reasoning in the leading judgment that I too dismiss this appeal.
(Delivered by CLARA BATA OGUNBIYI, JSC)
I read in draft the lead judgment of my learned brother, Nweze, JSC. I agree that the appeal is bereft of any merit and should be dismissed.
This is an appeal against the decision of the Court of Appeal, Lagos Judicial Division delivered on 20th June 2014, dismissing the appellant’s appeal to the lower court and affirming the judgment of the trial court. The trial Federal High Court convicted the appellant for the offences of trafficking in persons contrary to sections 15(a), (c), 16, 19(1) (d)and 21 of the Trafficking in persons (Prohibition) Law Enforcement & Administration Act 2003 as amended.
The Respondent as prosecution at the trial court preferred against the appellant and one other person a charge and signed by one Miss Aje Nneka Adaora for Attorney General of the Federation.
The said charge contained 18 counts charge for the offences of trafficking in persons. The respondent amended the charge and again signed by the same Muss Aje Nneka Adaora tor the Attorney General of the Federation.
The appellant was arraigned on the amended charge. He was not represented by any counsel but he however pleaded guilty to all the counts and was convicted thereon by the trial court and sentenced to various degrees of sentences, all to run concurrently.
On an appeal to the Court of Appeal same was dismissed and the judgment of the High Court was affirmed.
The appeal now before this court raises two issues:-
1) Whether the law officers of National Agency for the Prohibition of Traffic in persons and other related matters are officers in the department of the Attorney-General of the Federation and can sign charge or processes initiated by the Attorney-General of the Federation.
2) That with the appellant being a victim of first offender, whether the tower court was
correct in the discretion it exercised in convicting and sentencing the appellant
By section 174(2) of the Constitution, the powers conferred on the Attorney-General of the Federation under subsection (1) may be exercised by him in person or through the officers of his department. The issue challenges the competence and status of the legal officers of National Agency for the Prohibition of Trafficking in Persons (NAPTIP) to initiate criminal proceedings under the name and office of the Attorney-General of the Federation, being the Chief Law Officer of the Federation.
The question is, whether the lower court erred in law when it affirmed the decision of the trial court and held that Legal officers of NAPTIP are competent to sign charges preferred under the name and office of the Attorney-General of the Federation in prosecuting offences under the Trafficking in Persons (Prohibition) Law, Enforcement and Administration Act, 2003 “(TIPPLEA 2003 as amended).”
It is the contention of the appellant that under section 174 of the Constitution as amended, only the Attorney-General or officers of his Department that are competent to sign or prosecute under his office and not the Legal officers in any other Prosecuting agency; it is pertinent to say that the prosecuting agency is a section of the whole being a Department, while the office of the Attorney-General Is the larger organization, any Department is a section of the greater whole; thus the National Agency for the Prohibition of Trafficking of Persons and other related matters is saddled with powers to prosecute human trafficking and does on behalf of the Attorney-General of the Federation.
The said issue 1 I hold Is resolved against the appellant.
On the question of sentences passed on the appellant as to whether excessive or not, it should be noted that the question of sentencing is at the discretion of the judge and he is not bound to give reasons for exercising his discretion one way or the other. Discretion is personal and not subject to the doctrine of stare decisis. The judge did not act outside the statutory punishment provided by the Act creating the offence in question and it was exercised judicially and judiciously in imposing the sentences.
The fact that the appellant being 1st offender and pleaded guilty to the charge does not preclude the trial judge from imposing the punishment provided by law. The mere offence of trafficking in persons and more so in young persons should not be taken lightly. It is worst than slavery which was thought as an abomination and abolished. Appellant should not be treated with sympathy for any reason, but the maxim sentences are to be imposed.
My learned brother did well in dismissing the appeal and I also do same in like terms.
E. A. OYEBANJI for the Appellant.
C. J. ASIEGBU, A.C.L.O., NAPTIP, for the Respondent.