UDOM v. FRN & ANOR
(2020)LCN/15696(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, July 17, 2020
CA/LAG/CR/785/2019
Before Our Lordships:
Mohammed Lawal Garba Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
EMMANUEL UDOM APPELANT(S)
And
1. FEDERAL REPUBLIC OF NIGERIA 2. PAUL USORO (SAN) RESPONDENT(S)
RATIO:
THE POSITION OF THE CONSTITUTION OF THE GOVERNOR WHILE HE IS OFFICE
Specifically, in the case of Tinubu V. I. M. B. Securities Plc (supra), Kalgo, JSC held the view that:
“It is my view that the pith and substance of S. 308(1) of the Constitution is to restrict all legal proceedings in which the Governor in this case is involved while he is in office and that is why the proviso to the sub-section says no account shall be taken of his period of office for the purpose of any period of limitation in the case.”
So, the position of the Constitution is clear that no civil or criminal proceedings can be commenced against the Appellant, a sitting Governor of Akwa-Ibom State, and this was not in contention before the trial Court. Having established that fact, it is necessary at this juncture to again return to the charge for a closer examination in order to determine the correctness of the learned trial Judge’s reasoning quoted supra, to the effect that the Appellant was not a named defendant and not part of the trial. BALKISU BELLO ALIYU, J.C.A.
CONSTITUTIONAL IMMUNITY FROM CIVIL AND CRIMINAL PROSECUTION
As stated earlier, the learned trial Judge held at page 1197 of the record that:
“On the first issue, it is not in doubt that the Applicant at the moment belongs to the class of persons who enjoy constitutional immunity from civil and criminal prosecution by virtue of the office he holds as a Governor of Akwa-Ibom State of Nigeria. As long as he holds that office the Constitution says he cannot be charged for any offence. This is trite. But the question whether it would be a valid argument to say that the Applicant Emmanuel Udom is currently charged before this Court? As far as I understand, in every criminal trial, the necessary parties could be grouped into two segments: the Complainant and the named defendants. In this case the FRN and Paul Usoro SAN. He is the person the Court would turn to and pronounce its verdict at the conclusion of the trial. BALKISU BELLO ALIYU, J.C.A.
THE COMMISSION OF A CRIME BY THE GOVERNOR
The learned trial Judge correctly stated the trite principle of law that the Appellant as the sitting Governor of Akwa-Ibom State cannot be charged with the commission of the any crime by virtue of the said Section 308 (1) of the Constitution. This fact was also conceded to by the officers of the Respondent who indeed stated so on the face of the charge sheet. BALKISU BELLO ALIYU, J.C.A.
THE INTERPRETATION OF THE PROVISION OF A CONSTITUTION
In the case of Elelu-Habeeb V. A. G. Federation &Ors. (2012) LPELR-15515 (SC), Adekeyi JSC, speaking for the Apex Court held:
“The duty of the Court when interpreting a provision of the Constitution is to read and construe together all provisions of the Constitution unless there is a very clear reason that a particular provision of the Constitution should not be read together. It is germane to bear in mind the objective of the Constitution in enacting theprovisions contained therein. A section must be read against the background of other sections of the Constitution to achieve a harmonious whole. This principle of whole statute construction is important and indispensable in the construction of the Constitution so as to give effect to it. AG Bendel State v. AG Federation (1982) 3 NCLR 1; Okogie v. AG Federation (1981) 2 NCLR 337; Anyah v. AG Bornu State (1984) 5 NCLR.” BALKISU BELLO ALIYU, J.C.A.
THE CRIMINAL CHARGE IS NOT A LAW SUIT
I am not in any doubt, that a criminal charge is not a law suit, and when this definition is read in the context of Section 494 of the ACJA, 2015, a Defendant is defined “to mean any person against whom a complaint, Charge or information is made”. Can it then be said, that the Appellant herein will not be interested in the outcome of the criminal Charge in which, though not named as a Defendant, but his name conspicuously featured in counts 1 – 4 of the Charge which relate to the offences of “conspiracy”, “conversion’; “concealment”and “criminal breach of trust?
Having regard to the connotation of these affirmative indictments, would it be right to describe the Appellant as a “nominal party” to the criminal proceeding constituted by the instant Charge? It’s a concept that is unknown to criminal law in the common law jurisdictions. The lead judgment had already reproduced the entire 10 counts in the Charge and I need not reproduce them again. BALKISU BELLO ALIYU, J.C.A.
THE PROPER PARTIES TO A SUIT
My noble Lords, it is only in civil proceedings, when the Supreme Court’s decision in GREEN V. GREEN (1987) 3 NWLR (pt. 61) 480 wherein the apex Court discussed in details, the three categories of parties known to our adjectival law as a “necessary party’; a “proper party” and a “desirable party”, that there are nominal parties, and when the decision is carefully read and contexualised vis-a-vis the instant criminal charge in which the Appellant’s name featured in the statements of the offences in counts 1 – 4 that it will be better understood that to describe him as a “nominal party” by applying a literal rule of interpretation to the provision of Section 308 (2) of the Constitution, will amount to a misuse of legal terms. BALKISU BELLO ALIYU, J.C.A.
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court, Lagos judicial division (trial Court), delivered on the 30th May 2019 by Hon. Justice R. M. Aikawa, in respect of a preliminary objection filed by the Appellant against charge No: FHC/L/418C/2018 – FRN V. PAUL USORO (SAN). The Appellant’s objection was filed on the 14th March 2019 by which he challenged the said 10 counts charge filed by the Economic and Financial Crimes Commission (EFCC) for and on behalf of the Federal Republic of Nigeria (1st Respondent). In the said charge, the Respondent’s officers alleged that Paul Usoro SAN (2nd Respondent) conspired with the Appellant and other officials of Akwa Ibom State (who are at large) to commit the offences of conspiracy, conversion of various sums of money totaling N1.4billion and money laundering, all offences contrary to Sections 18(a) and punishable under 15(3) of the Money Laundering (Prohibition) Act 2011 as amended. The charge is copied in pages 2 to 6 of volume 1 of the record of appeal, and the Appellant’s preliminary objection can be found in pages 908 to 932 ofvolume 2 of the record of appeal. The Appellant by his notice of preliminary objection prayed the trial Court for the following eleven reliefs:
a. A DECLARATION of this Honourable Court that the complainant/Respondent has no locus standi to institute this charge against the Applicant and his aides in the executive branch of the Government of Akwa Ibom State.
b. AN ORDER of this Honourable Court quashing this charge as the counts therein constitutes offences unknown to law as the Applicant being the serving Governor of Akwa Ibom State cannot be questioned, interrogated and/or charged for an unknown offence relating to the funds/monies belonging to Akwa Ibom except by the House of Assembly of the State; as the funds/monies, subject matter of this charge do not belong to the Complainant/Respondent and are outside the jurisdictional purview of the Complainant/Respondent.
c. AN ORDER of the Honourable Court declining jurisdiction to hear this charge presently constituted particularly as against EMMANUEL UDOM the Executive Governor of Akwa Ibom State and his aides charged in counts 1-4 on the charge sheet.
d. AN ORDER of this Honourable Courtdeclining jurisdiction to entertain this suit on the basis that the Respondent lacks the Constitutional powers to invite or frame a criminal charge against and/or apply for the arrest of the Applicant and/or his aides or seek to detain the Applicant and/or his aides by any means whatsoever for the purpose of its inquiry into the financial affairs of the Akwa Ibom State Government.
e. AN ORDER of this Honourable Court setting aside and/or vacating and/or nullifying the bench warrant of arrest issued on the 1st March 2019 against some aides of the Applicant EMMANUEL UDOM (the Executive Governor of Akwa Ibom State) to wit; UWENEDIMO THOMAS NWOKO, NSIKAN LINUS NKAN, MFON JACOBSON UDOMAH and MARGARET THOMSON UKPE, and their proposed arraignment for being unconstitutional, outright nullities and lack of jurisdiction of the Court to issue same.
f. AN ORDER of this Honourable Court nullifying the counts 1, 2, 3, & 4 of the charges as being for offences unknown to law.
g. AN ORDER of this Honourable Court declining jurisdiction to entertain this suit and striking out the names of UWEMEDIMO THOMAS NWOKO, NSIKAN LINUS NKAN, MFON JACOBSON UDOMAH andMARGARET THOMSON UKPE who are aides of the Applicant as Head of Government of Akwa Ibom State from this criminal charge for the failure of the complainant to serve the charge in this Suit on them.
h. AN ORDER staying the execution of the bench warrant of arrest issued on 1st March 2019 against UWEMEDIMO THOMAS NWOKO, NSIKAN LINUS NKAN, MFON JACOBSON UDOMAH and MARGARET THOMSON UKPE who are aides of the Applicant as Head of Government of Akwa Ibom State in this suit pending the determination of this application thereof.
i. AN ORDER staying the arraignment of UWEMEDIMO THOMAS NWOKO, NSIKAN LINUS NKAN, MFON JACOBSON UDOMAH and MARGARET THOMSON UKPE aides of the Applicant who is the Head of Government of Akwa Ibom State fixed on the 18th March 2019 and/or any other day as may be deemed fit by this Honourable Court pending the determination of this application thereof.
j. AN ORDER of this Honourable Court restraining the Complainant/Respondent whether by itself, the police, privies, assigns, agents and/or any other security agency and/or any person howsoever acting for it or through it from executing the bench warrant of arrest issued on the 1st March2019 against UWEMEDIMO THOMAS NWOKO, NSIKAN LINUS NKAN, MFON JACOBSON UDOMAH and MARGARET THOMSON UKPE aides of the Applicant the Governor of Akwa Ibom State in this suit pending the determination of this application thereof.
k. AN ORDER of this Honourable Court directing the Complainant/Respondent to issue a written apology to the Applicant and his aides for this flagrant abuse of its power and breach of the right to liberty.
l. AND FOR SUCH OTHER ORDER (S) as this Honourable Court may deem fit to make in the circumstances of this suit.
The Appellant relied on the following grounds for his objection:
1. The entire charge sheet is incompetent and unconstitutional for including the name of Emmanuel Udom the executive governor of Akwa Ibom State in counts 1, 2, 3, & 4 in the charge sheet contrary to the express provisions of Section 308 of the Constitution.
2. The entire charge and all counts constitute offences unknown to law.
3. The complainant/Respondent has no locus standi to institute this charge against the Applicant and by extension against UWEMEDIMO THOMAS NWOKO, MFON JACOBSON UDOMAH and MARGARET THOMPSON UKPE whoare aides of the Applicant as the funds/monies; the subject matter of the charge does (sic) not belong to the Federal Republic of Nigeria.
4. It is unconstitutional for the Federal Government and/or any of its agencies to question and/or supervise the Akwa Ibom State Government on the use/management of the funds of Akwa Ibom State.
5. The charge sheet as presently constituted is an abuse of Court’s process being a charge framed in gross violation of the provisions of the Constitution which bars the institution of a criminal action against any person holding the office of a Governor as the Applicant presently holds office as the Governor of Akwa Ibom State.
6. The Constitution of the Federal Republic of Nigeria 1999 (as amended) guarantees the rights of citizens to personal liberty and fair hearing and this Honorable Court has the duty to check and stop any unconstitutional attempt to deprive the citizens of their constitutionally guaranteed rights.
7. The criminal jurisdiction of the Honourable Court is only activated upon service of the charge sheet on the accused person(s), the Complainant has failed to serve the criminal chargeon UWEMEDIMO THOMAS NWOKO, MFON JACOBSON UDOMAH and MARGARET THOMPSON UKPE, aides to the Applicant the Governor of Akwa Ibom State up until the date of this application and thus this Court lacks the jurisdiction to entertain this charge, and a fortiori to issue a bench warrant against them.
8. UWEMEDIMO THOMAS NWOKO, MFON JACOBSON UDOMAH and MARGARET THOMPSON UKPE, are public officers whose offices are publicly known and no single effort has been made to serve them with the purported charge sheet against them.
9. There is no charge against UWEMEDIMO THOMAS NWOKO, MFON JACOBSON UDOMAH and MARGARET THOMPSON UKPE, who are aides of the Applicant in the Executive Arm of the Government.
10. The present arrest warrant is unlawful and is solely aimed at embarrassing the Applicant and his aides and tarnishing and/or diminishing their public image in the society even without trial.
11. The doctrine of federalism embedded in the Constitution of the Federal Republic of Nigeria 199 (as amended) abhors the interference by the Federal Government or any of its agencies in the affairs of the State Governments.
12. The EFCC has no authority under ourlaw to initiate and/or commence a criminal action against UWEMEDIMO THOMAS NWOKO, MFON JACOBSON UDOMAH and MARGARET THOMPSON UKPE, aides of the Applicant who is the Head of Government of Akwa Ibom State in the pretext of investigating the accounts of the Government of Akwa Ibom State in line with the valid and subsisting decisions of the Federal High Court in SUIT NO. FHC/PHC/CS/78/2007 between AG RIVERS STATE VS. ECONOMIC AND FINANCIAL CRIMES COMMISSION, SUIT NO: PHC/2239/2010 between HYCENT WONSIRI VS. ECONOMIC AND FINANCIAL CRIMES COMMISSION followed by the Rivers State High Court in the recent case of SUIT NO: PHCN/2496/2018-LEKIA VINCENT BUKPOR VS. ECONOMIC AND FINANCIAL CRIMES COMMISSION.
13. This Honorable Court has the authority to decline jurisdiction to entertain this suit against the Applicant and to set aside the unlawful bench warrant issued against UWEMEDIMO THOMAS NWOKO, MFON JACOBSON UDOMAH and MARGARET THOMPSON UKPE, aides of the Applicant for being an order obtained by suppressing vital information.
The case made out by the Appellant before the trial Court was that in view of the provisions of Section 308 of the Constitution of Nigeria 1999, as amended,the mentioning of the name of the Appellant in counts 1 to 4 of the charge makes the charge a nullity because as a serving Governor, he enjoys immunity from prosecution. The officers of the 1st Respondent opposed the objection and filed counter affidavit to that effect contending that they did not arrest or serve the Appellant with the charge since it is stated therein that he is immune from prosecution. After considering the grounds of the objection, the counsel’s respective written addresses in support and in opposition thereto, the learned trial Judge dismissed the objection and held that the Appellant is not a named defendant in the charge and that he is not part of the trial, relying on the definition of a ‘charge’ under Section 494 of the Administration of Criminal Justice Act, 2015 (ACJA, 2015).
The Appellant was aggrieved by the dismissal of his objection and he filed notice of appeal on the 6th June 2019 relying on eight (8) grounds. The record of appeal was transmitted on the 27th June 2019 after which the Appellant filed his brief of argument on the 11th July 2019, settled by Dr. Charles D.Mekwunye. The learned counsel proposed the following five (5) issues for the determination of the appeal:
1. Whether the Appellant’s right to fair hearing was not breached by the trial Court when it failed to consider that the Appellant’s notice of preliminary objection filed at the lower Court was unchallenged and uncontroverted by the 1st Respondent. (Distilled from ground 6.)
2. Whether the decision of the learned trial Judge which acknowledged that the Appellant enjoys immunity against criminal prosecution by virtue of Section 308 of the 1999 Constitution, but went on to hold that counts 1-4 of the charge which clearly named and accused the Appellant of conspiracy to commit the offences mentioned therein are mere statements and have not graduated to the status of a charge is not perverse, and a violation of the provisions of the Constitution. (Distilled from grounds 1, 2, 3, 7 and 12).
3. Whether counts 1-4 of the charge sheets are competent when the purport and intent of the said counts 1-4 is to try the Appellant who will not have the opportunity to be in Court to defend himself by virtue of his Constitutionalresponsibilities. (Ground 5).
4. Whether the sovereignty of the people of Akwa-Ibom State, expressed in the election of the Appellant as Executive Governor and the election of the House of Assembly members to exercise powers under Sections 5(2), 4(6), 128 and 129 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), is not violated by the Federal Government through the Economic and Financial Crimes Commission (EFCC)’s filing of the counts (1-4) charges against the Governor of Akwa-Ibom State. (Distilled from ground 4).
5. Whether the 1st Respondent is not estopped by the decisions of the Federal High Court in (a) suit No: FHC/PHC/CS/78/2007 between AG RIVERS STATE VS. ECONOMIC AND FINANCIAL CRIMES COMMISSION, and (b) SUIT NO: PHC/2239/2010 between HYCENT WONSIRI VS. ECONOMIC AND FINANCIAL CRIMES COMMISSION and the Rivers State High Court decision in SUIT NO: PHCN/2496/2018 – LEKIA VINCENT BUKPOR VS. ECONOMIC AND FINANCIAL CRIMES COMMISSION, from investigating the finances of the Akwa-Ibom State and proffering these charges. (Ground 8).
The 1st Respondent filed her brief of argument on the 4th December 2019, settled byRotimi OyedepoIseoluwa Esq. and deemed properly filed on the 2nd June 2020. The learned counsel nominated three issues for determination as follows:
1. Whether the trial Court in its ruling on the Notice of Preliminary objection of the Appellant breached the Appellant’s right to fair hearing?
2. Whether with regards to the circumstances of the case the trial Court erred in dismissing the Appellant’s notice of preliminary objection.
3. Whether the 1st Respondent is stopped by the decisions of the Federal High Court in Suit No: FHC/PHC/CS/78/2007 between AG Rivers Vs. Economic and Financial Crime Commission.
The Appellant also filed his reply brief on the 23rd March 2020, consequentially deemed as properly filed and served on the 2nd June 2020. The appeal came up for hearing on that 2nd June 2020 and counsel adopted their respective briefs of argument. While the Appellant prayed the Court to allow the appeal, the 1st Respondent urged the Court to dismiss it and to affirm the Ruling of the trial Court. The 2nd Appellant did not file brief.
APPELLANT’S SUBMISSIONS
ISSUE ONE
The learned counsel submitted on hisissue one that the trial Court failed to determine the salient constitutional issues, which the Appellant raised in his notice of objection and this failure led to a gross violation of the Appellant’s right to fair hearing. He also submitted that the 1st Respondent’s counter affidavit filed against the objection of the Appellant was incompetent on the ground that it was deposed to by a legal practitioner who failed to attach his NBA seal/stamp to the affidavit. In addition, the 1st Respondent’s counter affidavit offended the provisions of Section 115 of the Evidence Act because the paragraphs contained therein constituted legal argument, conclusions and prayers. He submitted that the learned trial Judge ignored these issues and went on to rely on the incompetent counter affidavit in dismissing the Appellant’s objection. He relied on the cases of Kotoye V. CBN, Uzuda V. Ebigah, Tsokwa Motors (Nig.) Plc V. UBA, Barr. Benjamin Wayo V. Engr. Gearge T. A. Nduul, Ahmed &Ors. V. CBN and Ugwuanyi V. NICON Insurance Plc, and invited us to nullify the ruling of the trial Court and also to nullify the entire charge sheet. The citations of thecases referred to were not appropriately provided by the learned Appellant’s counsel. Though he made some reference marking, but a brief of argument is a legal document and not an academic document or write up in which the rule of bibliography/indexing applies. The learned counsel who cites a case as an authority on a principle of law he is presenting to Court has the obligation to immediately provide the citation thereto which will direct the Court to locate the authority. That, to my mind is one of the rules of legal brief writing.
ISSUE TWO
It was submitted by the learned Appellant’s counsel under this issue that the learned trial Judge misdirected himself when, after holding that the Appellant is immuned from prosecution by Section 308 of the Constitution, still proceeded and held that the Appellant along with the 2nd Respondent and others named in counts 1 to 4 of the charge were yet to be charged before him. He submitted that the learned trial Judge misunderstood the nature and meaning of a count in a criminal Charge. That the holding of the trial Court to the effect that the content of counts 1-4 of the charge is a mere statementis not supported by law, as such, his decision is perverse, having been reached in complete misunderstanding of the Constitutional immunity of the Appellant under Section 308 of the Constitution.
He further argued that the Appellant was not merely mentioned in counts 1-4 of the charge, but was expressly accused therein of conspiring with the 2nd Respondent and others to commit crimes and the actual commission of the crimes are stated in said counts. He submitted that it would be practically impossible to enter a verdict one way or the other without a determination of the criminal culpability of the Appellant, which will be against the expressed provisions of Section 308 of the Constitution. He further submitted that the trial Court in delivering its ruling, read Section 308 with stultifying narrowness and constructed the said section in such a way as to defeat its evident purpose. He placed reliance on the cases of Abacha V. FRN, Marwa V. Nyako and Ishola V. Ajiboye(citations not provided) to support his submissions and in urging us to declare the entire charge sheet as incompetent for including the name of the Appellant in counts 1-4.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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ISSUE THREE
Under this issue, the learned Appellant’s counsel relied on Section 36(6) of the Constitution and the case of Danladi V. Dangiri, to submit that the 1st Respondent by putting the Appellant on trial in counts 1-4 of the charge, knowing that he would not be available to defend himself breached his fundamental right to fair hearing. He further argued that the learned trial Judge missed the point when he held that the Appellant was not made a defendant in the charge because the argument of the Appellant in his preliminary objection was not that he was made a defendant. Rather his objection and argument before the lower Court was that as a sitting Governor of Akwa-Ibom State, he was charged for crime by the inclusion of his name in counts 1-4 of the charge. He relied on the Supreme Court’s definition of a charge in Okoye V. COP, as a formal accusation of an offence as a preliminary step to prosecution. He submitted that going by the said definition of a charge, a person needs not be a defendant before he is referred to as ‘charged’ and that it is sufficient that the Appellant has been accused of committing an offence on the charge sheet.
The Court was urged upon to so hold.
ISSUE FOUR
Under this issue, the Appellant’s learned counsel argued that the people of Akwa-Ibom State by their constitutionally empowered sovereignty exercised their right to vote for the Appellant and the members of the State House of Assembly to manage the resources of the state. He submitted that a community reading of Sections 5(2), 4(6), 128 (2) and 129 of the Constitution of Nigeria, 1999 as amended would show that only the Governor and the House of Assembly have, by the sovereignty of the people, the power to manage their resources as such, the 1st Respondents’ EFCC has to get the authorization of the House of Assembly of Akwa-Ibom State to investigate the State finances. He posited that Sections 6, 7 and/or any other section of the EFCC Act, which seeks to supplant the will of the people by investigating the finances of the state are unconstitutional, null and void.
He further submitted that the cases of Kalu V. FRN and Nyame V. FRN, relied upon by the learned trial Judge in dismissing the Appellant’s objection are not on all fours with the present circumstances of this case. Heurged the Court to distinguish those cases with the present suit on the ground that Section 15 of the Constitution is the general section while Section 128 is specific in addition to Section 128 being the later provisions than Section 15 in the Constitution.
ISSUE FIVE
Under this issue, the learned Appellant’s counsel placed reliance on the decisions of the Federal High Court, Port Harcourt Judicial division and High Court of Rivers state in Suits Nos. FHC/PHC/CS/2007 AND PHC/2239/2010 AND PHC/2496/2018, where both Courts interpreted the provisions of Section 128 of the Constitution 1999, and held that the EFCC has no locus standi to institute action or charge any official of a State Government for any perceived act of financial impropriety. He posited that in view of those valid decisions, it is only a state House of Assembly that has the power to investigate the management of finances of the Government of a State. He further argued that the said decisions of the two Courts still stand because no higher Court has set them aside. Thus, the issue on whose duty it is to investigate finances of state governments has been settled and it isdisrespectful to the Courts for the 1st Respondent to initiate criminal proceedings against the Appellant. He relied on the cases of APC V. PDP &Ors. and Saleh Dawai V. State, in urging us to safeguard the provisions of Sections 36, 128 and 308 of the Constitution of Nigeria 1999 as amended and to “nullify” the ruling of the trial Court for breaching the said provisions.
1ST RESPONDENT’S SUBMISSIONS
In arguing her issue one, whether the ruling of the trial Court breached the Appellant’s right to fair hearing for failure to consider the constitutional issues raised before it, the learned 1st Respondent’s counsel relied on the cases of Fani-Kayode V. FRN &Ors. (2019) LPELR-46796 (CA), Okpala& Sons Ltd V. NB Plc (2017) LPELR-43826 (SC), Fode Drilling Nig. V. Fabby&Ors. (2017) LPELR-42822 (CA), Saipem Contracting (Nig.) Ltd &Ors. V. FIRS &Ors. (2018) LPELR-45118 (CA) to submit that it is not every failure of a Court to pronounce on an issue raised before it that constitutes a breach of fair hearing. He posited that in this case, the ruling of the learned trial Judge adequately covered the key issueraised by the Appellant, which was as regards the constitutional immunity of the Appellant.
With regards to the argument of the Appellant against the competence of the counter affidavit of the 1st Respondent for failure to affix the NBA seal, he submitted that it is only the Evidence Act 2011 that governs admissibility of affidavit evidence and not the Rules of Professional Conduct for Legal Practitioners. The fact that the deponent of the counter affidavit was a legal practitioner did not mean that he couldn’t be a witness on the facts he deposed in the counter affidavit. In response to the Appellant’s argument that the counter affidavit of the 1st Respondent contravened Sections 115 of the Evidence Act, by containing extraneous matters, he submitted that assuming some paragraphs did contain such extraneous matters, there are still other competent paragraphs that the Court could rely on and therefore the argument to strike out the entire counter affidavit is misconceived and amount to sacrificing justice on the altar of technicality.
ISSUE 2
In arguing the 1st Respondent’s issue two, the learned counsel conceded thatindeed, the provisions of Section 308 of the Constitution of Nigeria, 1999 as amended, confers immunity to the Appellant against prosecution, however, that the charge filed before the trial Court was not against the Appellant and he was not a defendant in the suit because he was not served with any summons to attend the Court. The learned Counsel further contended that the charge was not unconstitutional because though the Appellant cannot be charged, other persons who conspire with the occupants of the offices mentioned under Section 308 can be charged and the names of the officers can be mentioned in the narrative for the purpose of making the charges clear and unambiguous. He placed reliance on the provisions of Section 494 of the ACJA, 2015 which defined a charge, and insisted that the Appellant was not charged along with the 2nd Respondent but that his name merely featured in counts 1 to 4 of the charge. The Court was urged to disregard the argument of the Appellant on his issue three because flowing from the argument that the Appellant is not a defendant in the charge before trial Court, there was no reason to warrant his invoking Section 36(6) of the Constitution.
He further relied on the case of Fawehinmi V. IGP (no citation provided) to argue that the Appellant can be investigated even if he cannot be prosecuted.
ISSUE THREE
On this issue, the learned 1st respondent’s counsel referred the Court to its Court’s decision in the case of Ogundede V. FRN (2007) 5 NWLR (pt. 155) 337, to submit that the Court below has the requisite jurisdiction to hear and determine money laundry allegations. He posited that Section 128 of the 1999 Constitution does not put a plug on the powers of investigation of the EFCC provided for under Sections 6 and 7 of the EFCC Act. He relied on the decision in Kalu V. FRN (2012) LPELR-9287, where this Court discountenanced the argument that only the state House of Assembly can investigate the financial dealing of a state. He quoted extensively excerpts from the judgments in Kalu vs. FRN (supra) and in Nyame V. FRN (2010) 11 NWLR (pt. 1193) 344 to submit that the Appellant’s argument to the effect that there were no Appellate Court’s decisions setting aside the High Court’s judgments mentioned supra was in error. Again, he posited that the saiddecisions of the High Courts relied upon by the Appellant are only persuasive and not binding on the trial Court being a Court of co-ordinate jurisdiction.
APPELLANT’S REPLY BRIEF
On points of law, the Appellant’s learned counsel drew the Court’s attention to the fact that the 1st Respondent’s learned counsel did not respond to the arguments canvassed on the Appellant’s issue 3, as such he is deemed to admit the arguments therein. He relied on the cases of Olley V. Tunji (2013) NWLR (pt. 1362) 289 and Donli V. Abdullahi &Ors. (2014) LPELR-23011 (CA) in support.
He also submitted that the cases of Fani-Kayode V. FRN &Ors (supra) relied upon by the 1st Respondent are not applicable to this case in view of the decisions of the Supreme Court in Okpala& Sons Ltd V. NB Plc (2017) LPELR-43826 (SC) and Nyesom V. Peterside&Ors. (2016) LPELR-40036 (SC).
In response to the 1st Respondent’s argument regarding the absence of the NBA seal on the counter affidavit of the 1st Respondent, the Appellant insisted that Rule 10(2) of the Legal Practitioners Professional Conduct were made pursuant to theLegal Practitioners Act, which in turn was made pursuant to Section 315 of the Nigeria’s Constitution, 1999 as amended. He conceded that it is the Evidence Act 2011 that governs evidence but Section 3 of the same Act provides that nothing in the Act will render admissible any evidence that is made inadmissible by another Act. He further argued that the Rule 10(2) of the Legal Practitioners Conduct is not in conflict with the Evidence Act.
On the argument of the 1st Respondent to the effect that there were other paragraphs in the counter affidavit that the Court can rely upon, the Appellant’s learned Counsel submitted that the Court cannot pick and choose depositions of the affidavit, which are in consistent with the Evidence Act and ignored those that violates it. Therefore, the suggestion of the 1st Respondent’s learned Counsel for the Court so to do is untenable. He placed reliance on the decisions in the cases of Nyesom V. Peterside&Ors. (supra), Habeeb V. FRN (2019) LPELR-47337 (CA), Umar V. Bailey &Ors. (2018) LPELR-44285 (CA), Buhari V. INEC (2008) 12 MJSC 198 and SarkinYaki V. Bagudu SC/722/2015 (?) in support of theargument.
With regards to the decisions of the Federal High Court Port Harcourt division and the High Court of Rivers State relied upon by the Appellant, he insisted that the said judgments are subsisting and binding on both the 1st Respondent as a party therein and the trial Court. He relied on the decisions in the cases of Nigeria Intercontinental Merchant Bank Ltd V. Union Bank &Ors. (2004) 12 NWLR (pt 888) 599 and Mr. Reuben Izeze V. INEC &Ors. (2018) LPELR-44284 (SC).
On Section 128 of the 1999 Constitution of Nigeria as amended, the Appellant repeated his earlier submissions insisting that the powers of investigation the 1st Respondent would only be triggered if and only if a House of Assembly of a State invites her to investigate its finances. Any investigation outside that would be in contravention of the said constitutional provisions. He relied for support on the case of Okereke V. Yar’adua&Ors. (2008) 12 NWLR (pt. 1100) 95. He urged the Court to discountenance the argument of the 1st Respondent’s counsel and to allow this appeal.
DETERMINATION OF THE APPEAL
I have given ample consideration to the groundsof this appeal, the preliminary objection of the Appellant and the ruling appealed against, as well as the respective briefs of argument of the learned counsel. It is clear to me that the issues proposed by each party are not dissimilar in context, which means the parties are in agreement on the main issues in controversy as proposed by the Appellant. For this reason, I adopt the five issues proposed by the Appellant, however it is observed that the said issues overlap and are proliferated. The crux of the complaint of the Appellant is actually captured in his issue 2 that was distilled from five (5) of the eight (8) grounds of appeal. His issues 1 and 3 are incidental and dependent on the resolution of issue two. The Appellant’s issues 4 and 5 are also related, with issue 4 being the main complaint. Therefore, the Appellant’s issues numbered one, two and three being related are collapsed into issue two and re-numbered issue one. Issues numbered 4 and 5 will also be compressed and numbered issue 2. So, the two issues for the determination of this appeal are as follows:
1. Whether the decision of the learned trial Judge which acknowledged thatthe Appellant enjoys immunity against criminal prosecution by virtue of Section 308 of the 1999 Constitution, but went on to hold that counts 1-4 of the charge which clearly named and accused the Appellant of conspiracy to commit the offences mentioned therein are mere statements and have not graduated to the status of a charge is not perverse, and a violation of the provisions of the Constitution.
2. Whether the sovereignty of the people of Akwa-Ibom State, expressed in the election of the Appellant as Executive Governor and the election of the House of Assembly members to exercise powers under Sections 5(2), 4(6), 128 and 129 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), is not violated by the Federal Government through the Economic and Financial Crimes Commission (EFCC)’s filing of the counts 1-4 charges against the Governor of Akwa-Ibom State.
ISSUE ONE
In this issue, the Appellant complaint is against the learned trial Judge’s holding that counts 1-4 of the charge in which he said the Appellant was named and accused of conspiracy and other offences are mere statements, which did not amount to and didnot graduate to charging him for the said offences. My starting point to the resolution of this issue is the counts 1 to 4 of the charge located in pages 2 to 4 of volume one of the record of appeal and they are reproduced below for guidance:
COUNT ONE
That you, PAUL USORO SAN, EMMANUEL UDOM (CURRENTLY CONSTITUTIONALLY IMMUNED AGAINST CRIMINAL PROSECUTION), UWEMEDIMO THOMAS NWOKO (STILL AT LARGE), NSIKAN LINUS NKAN, (COMMISSIONER OF FINANCE AKWA IBOM STATE) (STILL AT LARGE), NFON JACOBSON UDOMAH (ACCOUNTANT GENERAL OF AKWA IBOM STATE) (STILL AT LARGE) AND MARGARET THOMPSON UKPE (STILL AT LARGE), sometimes in 2015 in Nigeria, within the jurisdiction of this Honourable Court conspired among yourselves to commit an offence to wit: conversion of the sum of N1, 410, 000, 000, 000. 00 (One Billion, Four Hundred and Ten Million Naira) property of Government of Akwa-Ibom State of Nigeria, which sum you reasonably ought to have known forms part of the proceeds of an unlawful activity to wit: criminal breach of trust and thereby committed an offence contrary to Section 18(a) of the Money Laundering (Prohibition) Act, 2011 as amended and punishable underSection 15(3) of the same Act.
COUNT TWO
That you, PAUL USORO SAN, EMMANUEL UDOM (CURRENTLY CONSTITUTIONALLY IMMUNED AGAINST CRIMINAL PROSECUTION), UWEMEDIMO THOMAS NWOKO (STILL AT LARGE), NSIKAN LINUS NKAN, (COMMISSIONER OF FINANCE AKWA IBOM STATE) (STILL AT LARGE), NFON JACOBSON UDOMAH (ACCOUNTANT GENERAL OF AKWA IBOM STATE) (STILL AT LARGE) AND MARGARET THOMPSON UKPE (STILL AT LARGE), on or about the 14th day of March 2016 in Nigeria within the jurisdiction of Honourable Court converted the sum of N300, 000, 000. 00 (Three Hundred Million Naira), property of Government of Akwa-Ibom State of Nigeria, which sum you reasonably ought to have known forms part of the proceeds of unlawful act to wit: criminal breach of trust and thereby committed an offence contrary to Section 15(2)(b) of the Money Laundering (Prohibition) Act 2011 as amended and punishable under Section 15(3) of the same Act.
COUNT THREE
PAUL USORO SAN, EMMANUEL UDOM (CURRENTLY CONSTITUTIONALLY IMMUNED AGAINST CRIMINAL PROSECUTION), UWEMEDIMO THOMAS NWOKO (STILL AT LARGE), NSIKAN LINUS NKAN, (COMMISSIONER OF FINANCE AKWA IBOM STATE) (STILL AT LARGE), NFON JACOBSON UDOMAH(ACCOUNTANT GENERAL OF AKWA IBOM STATE) (STILL AT LARGE) AND MARGARET THOMPSON UKPE (STILL AT LARGE), on or about the 14th March 2016 in Nigeria within the jurisdiction of this Honourable Court concealed the sum of N300, 000, 000. 00 (Three Hundred Million Naira), property of Government of Akwa-Ibom State of Nigeria which sum you reasonably ought to have known forms part of the proceeds of unlawful act to wit: criminal breach of trust and thereby committed an offence contrary to Section 15(2)(a) of the Money Laundering (Prohibition) Act, 2011 as amended and punishable under Section 15(3) of the same Act.
COUNT FOUR
PAUL USORO SAN, EMMANUEL UDOM (CURRENTLY CONSTITUTIONALLY IMMUNED AGAINST CRIMINAL PROSECUTION), UWEMEDIMO THOMAS NWOKO (STILL AT LARGE), NSIKAN LINUS NKAN, (COMMISSIONER OF FINANCE AKWA IBOM STATE) (STILL AT LARGE), NFON JACOBSON UDOMAH (ACCOUNTANT GENERAL OF AKWA IBOM STATE) (STILL AT LARGE) AND MARGARET THOMPSON UKPE (STILL AT LARGE), on or about the 14th day of March 2016 within the jurisdiction of this Honorable Court disguised the origin of the sum of N300, 000, 000. 00 (Three Hundred Million Naira), property of the Government ofAkwa-Ibom State of Nigeria which sum you reasonably ought to have known forms part of the proceeds of an unlawful act to wit: criminal breach of trust and thereby committed an offence contrary to Section 15(2)(a) of the Money Laundering (Prohibition) Act, 2011 as amended and punishable under Section 15(3) of the same Act.
The above are the four counts in which the Appellant’s name was clearly mentioned with additional information provided by the prosecution that he (Appellant) “is currently constitutionally immuned from prosecution”. As stated earlier, the learned trial Judge held at page 1197 of the record that:
“On the first issue, it is not in doubt that the Applicant at the moment belongs to the class of persons who enjoy constitutional immunity from civil and criminal prosecution by virtue of the office he holds as a Governor of Akwa-Ibom State of Nigeria. As long as he holds that office the Constitution says he cannot be charged for any offence. This is trite. But the question whether it would be a valid argument to say that the Applicant Emmanuel Udom is currently charged before this Court? As far as I understand, inevery criminal trial, the necessary parties could be grouped into two segments: the Complainant and the named defendants. In this case the FRN and Paul Usoro SAN. He is the person the Court would turn to and pronounce its verdict at the conclusion of the trial. The inclusion of the name of the Applicant in counts 1-4 does not in my view make him a named defendant. In Section 494 of the ACJA a charge has been defined…. Going by the definition, it is my view that the mere mention of the Applicant in the said counts is not enough to qualify him as a Defendant. For him to be so, he must be a named defendant and therefore part of the trial. The Applicant is not part of this trial. Counts 1-4 in relation to the Applicant therefore in my view remain mere statements and no more. They have not graduated to the status of a charge….” (Underlining supplied.)
By the above holding, the learned trial Judge agreed that the Appellant could not be validly charged for criminal offences in line with the provisions of Section 308(1) of the 1999 Constitution of Nigeria as amended. But he reasoned that in this particular case, the Appellant was not “anamed defendant” in the charge. This is the crux of this appeal.
The learned trial Judge correctly stated the trite principle of law that the Appellant as the sitting Governor of Akwa-Ibom State cannot be charged with the commission of the any crime by virtue of the said Section 308 (1) of the Constitution. This fact was also conceded to by the officers of the Respondent who indeed stated so on the face of the charge sheet. There is therefore no dispute on this fact before the trial Court or indeed in this appeal. As reminder for guidance, the said Section 308 provides as follows:
308. (1) Not withstanding anything to the contrary in this Constitution, but subject to sub-section (2) of this section-
a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office.
b) a person to whom this section applies shall not be arrested, or imprisoned during that period either in pursuant of the process of any Court or otherwise and
c) no process of any Court requiring or compelling the appearance of a person to whom this Section applies shall be applied or issued:provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office
(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.
(3) This Section applies to a person holding the office of President or Vice President, Governor or Deputy Governor and the reference in this section to “period of office” is a reference to the period which the person holding such office is required to perform the function of the office.”
The extent of the immunity granted by the above reproduced Section 308 to the persons mentioned therein has been interpreted in several decisions of this Court and the Apex Court including the cases of Global Excellence Communications Ltd &Ors. V. Duke (2007) LPELR-1323 (SC), Amaechi V. INEC &Ors. (2008) LPELR-446 (SC), Tinubu v. I.M.B. Securities Plc (2001) 16 NWLR (pt. 740) 670, I.C.S. (Nig.) Ltd V. Balton B. V. (2003) 8 NWLR (pt. 822) 223, Abacha V. FRN (2014) LPELR- 22014 (SC), EFCC V. FAYOSE & Anor. (2018) LPELR-44131 (CA) and A. G. FED. V. Abubakar (2007) LPELR-8995. The judicial consensus reached in these cases and others is that the immunity against criminal and civil proceedings granted to the serving state Governors in Nigeria, such as the Appellant in this Appeal is absolute by virtue of sub-section 1 (a) to (c) of Section 308. Specifically, in the case of Tinubu V. I. M. B. Securities Plc (supra), Kalgo, JSC held the view that:
“It is my view that the pith and substance of S. 308(1) of the Constitution is to restrict all legal proceedings in which the Governor in this case is involved while he is in office and that is why the proviso to the sub-section says no account shall be taken of his period of office for the purpose of any period of limitation in the case.”
So, the position of the Constitution is clear that no civil or criminal proceedings can be commenced against the Appellant, a sitting Governor of Akwa-Ibom State, and this was not in contention before the trial Court. Having established that fact, itis necessary at this juncture to again return to the charge for a closer examination in order to determine the correctness of the learned trial Judge’s reasoning quoted supra, to the effect that the Appellant was not a named defendant and not part of the trial. The 10 count charge filed by the officers of the 1st Respondent, (see pages 2 to 6 of the record of appeal) has a heading, which at a glance shows that it was between the Federal Republic of Nigeria as the Complainant and Paul Usoro SAN as the defendant, that is, “FEDERAL REPUBLIC OF NIGERIA AND PAUL USORO SAN.” In the heading of the charge, the Appellant was not mentioned either by name or by his official designation. However, in the body of counts 1 to 4 (reproduced supra), it is stated clearly that Paul Usoro SAN and Emmanuel Udom “sometimes in 2015 in Nigeria conspired among yourselves to commit an offence….” Note the complainant’s deliberate use of the personal name of the Appellant “Emmanuel Udom” as against his official name “Governor of Akwa Ibom State” thereby directly indicting/accusing him to have committed the offences ofconspiracy and others in counts 1 to 4 of the charge. Even though his name either personally or officially was not including or joined with that of Paul Usoro SAN in the heading of the charge, I have no doubt in my mind that the Appellant is personally charged of having committed offences within the body of the charge personally. One does not need microscopic eyes to see that and it was deliberately stated therein that he was constitutionally immuned from prosecution.
Now the reasoning of the learned trial Judge’s holding that the mention of the Appellant in the said counts was just mere statements that do not qualify the Appellant as a “defendant” was because at the end of the trial it will be to Paul Usoro that the learned trial Judge will “turn to and pronounce a verdict”. This reasoning of the learned trial Judge’s decision, is to the effect that the Appellant is not “a necessary party” in the criminal trial commenced by the said charge which will necessitate the invocation of Section 308(1) of the Constitution to invalidate the charge or the trial by the inclusion of his name. The learnedAppellant’s counsel had argued that the learned trial Judge misunderstood the complete immunity enjoyed by the Appellant as a result of his interpretation of the provisions of Section 308(1) of the Constitution “with stultifying narrowness” in his ruling. That, a person needs not be a defendant before he can be declared “charged.”
To determine the correctness of this argument against the decision of the lower Court, I will have to turn to the rules of interpretation of Constitutional provisions that have been laid down over the years by the Apex Court. For instance, in the case of Marwa V. Nyako (2012) LPELR-7837 (SC), Onnoghen JSC, (as he then was) referred to the rules guiding the interpretation of Constitution as laid down by the Supreme Court in its earlier decisions in the cases of A. G. Bendel State V. A. G. Federation (1981) 10 SC 1 and Ishola V. Ajiboye (1994) 7-8 SCNJ (pt. 1) 35, which include the following four rules:
1. Constitutional provisions must be given a reasonable construction, and absurd consequences are to be avoided.
2. Constitutional provisions dealing with the same subject matter are to beconstrued together.
3. Seemingly conflicting parts are to be harmonized if possible, so that effect can be given to the Constitution.
4. The position of an article or clause in the Constitution influences its construction.
Applying the stated rules of interpretation to the above quoted Section 308(1) of the Constitution, it is pertinent to state from the onset that the language used in the said section is simple, and therefore calls for the application of the golden rule of interpretation in order to accord the words used their ordinary natural meaning. It must not be assumed that the legislature intended special meaning to be attached to the words used in the Constitution. In the case of Elelu-Habeeb V. A. G. Federation &Ors. (2012) LPELR-15515 (SC), Adekeyi JSC, speaking for the Apex Court held:
“The duty of the Court when interpreting a provision of the Constitution is to read and construe together all provisions of the Constitution unless there is a very clear reason that a particular provision of the Constitution should not be read together. It is germane to bear in mind the objective of the Constitution in enacting theprovisions contained therein. A section must be read against the background of other sections of the Constitution to achieve a harmonious whole. This principle of whole statute construction is important and indispensable in the construction of the Constitution so as to give effect to it. AG Bendel State v. AG Federation (1982) 3 NCLR 1; Okogie v. AG Federation (1981) 2 NCLR 337; Anyah v. AG Bornu State (1984) 5 NCLR.”
Against this background rule, I note particularly that the provisions of Section 308 commenced with the words, “notwithstanding anything to the contrary in this constitution, but subject to sub-section (2) of this section”. Whenever the Constitution uses the phrase “notwithstanding anything in this constitution” the legislature intends that the application of the section cannot be limited by any other proceeding provisions in the Constitution. In the case of Obi V. INEC (2007) LPELR-24347(SC), the Apex Court, while interpreting the phrase used in the context of the jurisdiction of the Federal High Court, held per Aderemi, JSC that:
…. When the term ‘notwithstanding’ is used in a section of a statute it ismeant to exclude an impinging or impending effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself. It follows that as used in Section 251(1) of the 1999 Constitution, no provision of the Constitution shall be capable of undermining the said section.”
It therefore means that the provisions that followed the phrase ‘not withstanding’ in the commencement of Section 308 cannot be limited, or restricted by any other provisions in the Constitution, except those under sub-section (2) of the section. It also means that by the provisions of sub-sections (1) (a), (b) and (c) are to the effect that civil and criminal proceedings shall not be commenced or continued against the persons mention in sub-section (3) of the section. Those persons shall not be arrested or imprisoned and shall not be served with any process of Court compelling their appearance. These persons to whom the sub-section (1) (a) to (c) apply are clearly stated in sub-section (3) and they include the Appellant herein, being a serving Governor of Akwa-Ibom State of Nigeria.
It is clear that the framers of the saidsection did not intend any proceedings whatsoever to be instituted against a serving Governor such as the Appellant. It also follows logically that if charges for criminal offences cannot be filed against the Appellant as a serving Governor, then his name should not be mentioned in the charge even in the statements contained therein. I am in agreement with the learned Appellant’s counsel’s argument that by naming the Appellant in the charge, he has been made a defendant. It is immaterial whether he was served with the charge or not, or whether he was arrested or summoned or not. I have no doubt in my mind that counts 1 to 4 of the charge constitute a clear affront to the provisions of Section 308(1) of the Constitution and therefore invalid. . In the case of Elelu-Habeeb V. A. G. Federation &Ors. (2012) LPELR-15515 (SC), Adekeyi JSC, speaking for the Apex Court held:
“The duty of the Court when interpreting a provision of the Constitution is to read and construe together all provisions of the Constitution unless there is a very clear reason that a particular provision of the Constitution should not be read together. It is germane to bear in mind the objective of the Constitution in enacting theprovisions contained therein. A section must be read against the background of other sections of the Constitution to achieve a harmonious whole. This principle of whole statute construction is important and indispensable in the construction of the Constitution so as to give effect to it. AG Bendel State v. AG Federation (1982) 3 NCLR 1; Okogie v. AG Federation (1981) 2 NCLR 337; Anyah v. AG Bornu State (1984) 5 NCLR.”
It is pertinent to point out that the learned trial Judge has in fact correctly recognized, the fact that there are only two categories of necessary parties in a criminal proceeding/trial, namely the complainant and the defendant i.e. the complainant who alleges that the other party, the defendant, has committed a crime which crime the complainant as the accuser must call evidence to prove. If these are the only necessary parties to a criminal trial, it means any other party named in a charge filed to commence a trial has to be either of the two as necessary parties. Interestingly, the learned trial Judge relied on Section 494 of ACJA 2015 to define a ‘charge’ as “a statement of offence with which a defendant is charged in a trial….” and still proceeded to hold that the counts 1 to 4 in which the Appellant was accused of conspiracy with others and committed offences “remain mere statements.” There is an apparent contradiction here because really, the Appellant was mentioned in as adefendant in the “statement of offences” in counts 1 to 4 of the charge, and so he was charged and I so hold. I rely on the locus classicus case of Green V. Green (1987) LPELR 1338, where the Supreme Court held that:
“A necessary party is one who is not only interested in the subject matter of the proceedings but whom in his absence, the proceedings cannot be fairly and judiciously decided. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless the necessary party to the particular claim is joined in the action…”(Underlining supplied).
Can it be said that counts 1 to 4 of the charge can be fairly and judiciously decided in the absence of the Appellant. I don’t think so and I hold the view that the said counts 1 to 4 of the charge cannot be tried in the absence of the Appellant otherwise, his fundamental right to fair hearing and fair trial guaranteed to every person in Nigeria by Section 36(6) of the Constitution will be breached. To that extent, he is a necessary party to the trial that would be conducted on the charge, contrary to the viewof the learned trial. And since by the provisions of Section 308(1) he has absolute immunity against prosecution, he cannot be named in a charge filed to commence such criminal proceedings or trial. See PDP & Anor. V. INEC &Ors. (1999) LPELR- 24856, INEC V. MUSA (2003) LPELR-24927 (SC) and I.C.S. (Nig.) Ltd V. Balton B. V. (supra) where this Court per, Aderemi, JCA (as he then was) relied on various definitions of “proceedings” used in Section 308 and held at page 236 that:
“Once one of the parties comes within the category of the office holders defined by Section 308 of the Constitution, the proceedings must stop and the matter struck out only to be commenced when that office holder shall have vacated his office.”
It must also be so in this case, especially because it is a settled principle of criminal law that time does not run against the State for criminal prosecution. See Orji V. The State (2007) 13 NWLR (pt. 1050) 55. The learned trial Judge certainly fell into grave error, and misunderstood the purport of Section 308(1) of the Constitution when he held that the Appellant was not “a named defendant”in the charge. Certainly, his name was stated in the charge as having “conspired with Paul Usaro SAN and others mentioned to commit an offence.“ In the final analysis I uphold the learned Appellant’s counsel argument that counts 1 to 4 of the charge in which the Appellant was stated as having committed criminal offences are incompetent for being contrary to the provisions of Section 308(1) of the Constitution of Nigeria 1999 as amended. Issue one is resolved in favor of the Appellant. The said Counts 1 to 4 are hereby struck out from the charge.
ISSUE 2
Having resolved issue 1 in favour of the Appellant, the determination of this issue becomes otiose because the complaint raised therein regarding whether the 1st Respondent can validly question the Appellant’s management of the resources of Akwa-Ibom State constitutes a defence against the counts 1 to 4 of the charge. Having declared those counts as incompetent and struck them out, there cannot be any trial on them. Moreover, the complaint under this issue may come up for trial at a later stage, as such it will be inappropriate to determine it at this stage. The issue isstruck out for the stated reasons.
In conclusion, having resolved issue 1 in favour of the Appellant, it means this appeal has merit and I allow it. The ruling of the Federal High Court delivered on the 14th March 2019 in respect of preliminary objection of the Appellant to charge No: FHC/L/418C/2018 is hereby set aside by me. Counts 1 to 4 of the said charge are struck out from the said charge.
MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment written by my learned brother Balkisu Bello Aliyu, JCA in this appeal and agree with the conclusion therein.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: My Lord, the HON. JUSTICE B. B. ALIYU, JCA graciously obliged me with a preview of the draft of the lead judgment which has just been delivered and in which the appeal was upheld with the consequential order striking out counts 1 — 4 in the Charge filed in FHC/L/CR/418c/18.
In view of the crucial constitutional issues which the appeal has thrown up for determination, let me add a little contribution to the judgment which has just been delivered.
The proceedings in the lower Court by theindictments filed against the 2nd Respondent in which the Appellant’s name featured in counts 1- 4 of the ten (10) count charge, are such that raised thorny fundamental constitutional issues. I am not oblivious of the apex Court’s decision in which the constitutionality of Act that created and established the ICPC, and by a logical deduction, the EFCC Act, 2004 and establishment of the 1st Respondent as the Prosecuting Agency in this matter had been resolved. See: the Supreme Court’s decision in A.G. OF ONDO STATE V. A.G. OF THE FEDERATION & 36 ORS (2009) NWLR (pt.772) S.C. 222.
The constitutionality of the Acts by which such agencies are established is one thing which is no longer open to any further reconsideration except by the apex Court if the need to do so arises but, it is another issue entirely where the Agency in a purported exercise of its statutory powers, engaged as in this case by the 1st Respondent, to interfere with certain and specific other provisions of the Constitution, for instance, Sections 128, 129 and 308 of the Constitution, 1999 as Amended.
It is expedient in my view, at the outset of this brief discourse, to layout the relevant provisions, so that they serve as judicial compass to survey and navigate through the currents of the issues involved by the criminal proceedings initiated in the lower Court in which the Appellant’s name featured in counts 1- 4 of the Charge. These provisions read thus:
128(1) Subject to the provisions of this Constitution, a House of Assembly shall have power by resolutions published in its journal or in the Official Gazette of the Government of the State to direct or cause to be directed on inquiry or investigation into —
(b) any matter or thing with respect to which it has power to make laws; and the conduct of affairs of any person, authority, Ministry or government department charged, or intended to be charged, with the duty of or responsibility for —
(i) executing or administering laws enacted by that House of Assembly, and
(ii) disbursing or administering money appropriated or to be appropriated by such House.
(1) The powers conferred on a House of Assembly under the provisions of this section are exercisable only for the purpose of enabling the House to —
(a) Make laws with respectto any matter within its legislative competence and correct any defects in existing laws; and
(b) Expose corruption, Inefficiency or waste in execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it (underline is mine for emphasis).
Now, the provision of Section 129 (1) of the Constitution states:-
(1) For the purposes of any investigation under Section 128 of this Constitution, and subject to the provisions thereof, a House of Assembly or a committee appointed in accordance with Section 103 of this Constitution shall have power to —
a. Procure all such evidence, written or oral, direct or circumstantial, as it may think necessary or desirable, and examine all persons as witnesses whose evidence may be material or relevant to the subject-matter;
b. Require such evidence to be given on oath;
c. Summon any person in Nigeria to give evidence at any place or produce any document or other thing in his possession or under his control, subject to all just exceptions; and
d. Issue a warrant to compel the attendance of any person who, after having beensummoned to attend, fails, refuses or neglect to do so and does not excuse such failure, refusal or neglect to the satisfaction of the House of Assembly or the committee, and order him to pay all costs which may have been occasioned in compelling his attendance or by reason of his failure, refusal or neglect to obey the summons and also to impose such fine as may be prescribed for any such failure, refusal or neglect; and any fine so imposed shall be recoverable in the same manner as a fine imposed by a Court of law.
These are provisions which should be read in the context of Sections 6 and 7 of the EFCC Act, supra being the provisions that prescribed for the statutory “functions” and “special powers” of the 1st Respondent and were the basis of the authority pursuant to which the Appellant was affirmatively indicted in counts 1 – 4 of the Charge filed in FHC/L/CR/418C/18 as having contravened certain provisions of the Money Laundering (Prohibition) Act, 2011 As Amended.
The said provisions are Sections 15(2) (a) and Section 18(a) of the Money Laundering (Prohibition) Act, 2011 which the Appellant was specifically indicted in counts 1, 2, 3, and 4of the said Act. The summary of each of the four counts are “conspiracy”; “conversion”; “criminal breach of trust” and “concealment of certain sum of money which allegedly is the property of Akwa Ibom State Government.
By reason of Section 308 (1) (a) (b) (c); (2) & (3) of the Constitution, 1999 as amended which read thus: –
308 (1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection 2 of this section —
(a) No civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office:
(b) A person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any Court or otherwise: and
(c) No process of any Court requiring or compelling the appearance of a person to whom this section applies shall be applied for or provided that in ascertaining whether any period of limitation has expired for the purpose of any proceedings against a person to whom this section applies, no account shall be taken of his period in office.
(2) The provisions of Subsection (1) ofthis section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such person is only a nominal party (Underline is mine).
(3) This section applies to a person holding the office of president or Vice President. Governor or Deputy Governor; and the reference in this section to period of office- is a reference to the period during which the person holding such office is required to perform the functions of the office.
On the face of the indictments in counts 1 – 4 in the Charge, it’s no longer an issue in contention that the Appellant is the Current governor Of Akwa Ibom State. The question that calls for a determination by this Court is whether the criminal charge filed in FHC/L/418C/2018: F.R.N. v. PAUL USORO SAN in which the Appellant, though not named specifically as a Defendant, but whose name conspicuously featured as a co-conspirator with the named Defendant and others in the Charge, is one which violate the Appellant’s constitutionally guaranteed right from prosecution prescribed in Section 308 (1) of the Constitution and by extension, his right to fair hearing under Section 36(1) of the same Constitution. The argument that the Appellant was not charged because, he was not named as “Defendant” appears to me as rather specious, perhaps disingenuous. Whilst the 1st Respondent duly acknowledged on the face of the charge sheet that the Appellant is “currently constitutionally immuned against criminal prosecution”, the question is: why then was he named in the indictments as having “conspired among yourselves to commit an offence” of conversion and criminal breach of trust amongst others.
This question is apposite when the proviso to Section 308 (1) (c) of the Constitution is carefully read. This is a provision intended by the drafters of the Constitution, to preserve the capacity of the State to prosecute any of the persons holding the offices prescribed in Section 308 (3) of the Constitution, Supra. I am of the view, that this proviso was intended to save charges in respect of offences which may be time barred (for instance, Section 52 (1) of the Criminal Code Act, Cap 38, LFN 2004 in relation to Sedition which the law requires that it be prosecuted within six months of the commission of the offence) and in which an holder of the offices protected by Section 308 (1) of the Constitution has committed but protected by constitutional immunity from prosecution whilst in such office, and this possibly explains why the Supreme Court in its decision in FAWEHINMI V. IGP (2002) 7 NWLR (Pt. 767) 606 held that such office holders can be investigated whilst holding the offices prescribed in Section 308 (3) of the Constitution, 1999 as amended but, the process of the investigation shall not be conducted in a way that it will violate or undermine the provision of Section 308 (1) (b) and (c) of the Constitution. It is left to the Investigating Agency to decide on how it will conduct its investigation without contravening these provisions.
When these postulations are borne in mind, it’s my view that the 1st Respondent deliberately filed the statements of the offences in counts 1 – 4 of the charge in order to surreptitiously, perhaps invidiously if I may say so, blackmail the Appellant who, except if he chooses to waive the immunity conferred on him by the combined reading of Section 308 (1) & (3) of the Constitution, will be forced to stand idly by while a Court’s proceeding in which he has been frontally indicted isbeing heard to finality. This is one aspect of the case.
The second aspect is that when the trial is concluded in the lower Court, and certain adverse findings were made in the course of evaluation of the evidence led against him, does he waive his constitutional immunity and jump into the arena in order to challenge such adverse findings against him? A corollary question to this is whether the constitutional immunity conferred on the Appellant by Section 308 (1) of the Constitution is such that he can waive. The Constitution has not made any specific or implied provision that it could be waived because, where it is waived, it means that a sitting governor of a State, when found guilty will be imprisoned while in office. This will run contrary to the purpose and legislative objective of the said provision, and I have no doubt in my mind, that this was never the intendment of the drafters of the Constitution. The protection granted by way of constitutional immunity from arrest or prosecution is for the office and the need to preserve its dignity, and it is not indeterminable because, it was meant to avail persons prescribed in Section 308 (3) of the Constitution whilst holding the office. Once he or she exits from the office, either by way of resignation, expiration of the tenure prescribed by the Constitution or by removal from office by way of impeachment in the manner prescribed by the Constitution, such office holder becomes a private citizen and he or she is liable to the criminal processes from which he or she was previously shielded by and on the authority of the Constitution itself.
A subsidiary question that will inevitably arise is of what use will such adverse findings of the trial Court be, if they cannot be used to make a pronouncement of guilt of the Appellant. Does the Court have the statutory or even constitutional powers, to preserve its findings pending when the Appellant exit from his office duly protected by Section 308 (1) (a) and (b) of the Constitution? This would then make the Court to assume, perhaps to unconstitutionally usurp the role and function of an investigator which is not its statutory or constitutional duty, and such adverse findings on its records become as it were, useless as they could not be used to reach any determination against the Appellant.
The fundamental constitutional issue is what in essence will be the result of the outcome of the inquiry which the State House of Assembly are empowered to conduct even in relation to the States government’s funds as in the provisions of Sections 128 and 129 of the Constitution which I had reproduced.
The drafters of the Constitution have clearly by these provisions, vest in the States House of Assembly, the powers to conduct “an inquiry or investigation into any matter or thing with respect to which it has power to make laws; and
(b) the conduct of affairs of any person, authority, ministry or government department charged, or intended to be charged with the duty of or responsibility for —
(ii) disbursing or administering every money appropriated or to be appropriated by such house”. Sections 120 and 121 of the Constitution in reasonable details, make provisions for “control over Public Funds” and of authorization of expenditure from consolidated revenue fund”. It is my view, that the whole essence of these provisions, is to confer on the States of the Federation, a reasonable level of fiscal autonomy with regard to their funds, and theConstitution has conferred on the States House of Assembly, the powers to conduct
“an inquiry or investigation into” the “disbursing or administering money appropriated or to be appropriated by such House.”
The primary question is whether the 1st Respondent, as an agency of the F.G.N: see Court of Appeal’s decision in UNIVERSITY OF ABUJA V. OLOGE (1997) 4 NWLR (pt.445)706 @ 717-718, can exercise its statutory powers in Sections 6 and 7 of its enabling Act, to over-ride or side track the constitutional mandate specifically vested in the States House of Assembly in relation to the State’s own funds. These are really fundamental questions which agitated my thoughts when I read the lead judgment just delivered.
It is my respectful view, that the Respondent recognising the limitations of its statutory powers which cannot be applied to override the constitutional powers and privileges which I have adverted to in this analysis, devised a disingenuous method or tactic which I see as rather cavalier, to engage the Appellant in a psychological prosecutorial warfare of attrition by deliberately avoiding to specifically name the Appellant as a Defendantin the Charge filed in the lower Court, but had consciously indicted him as a “co-conspirator” with the other persons named in the Charge and indeed accused him as having converted certain sums of money which it alleged belongs to Akwa Ibom State and in which the State House of Assembly by the provisions of Sections 128 and 129 of the Constitution has specific constitutional powers to conduct “inquiry or investigation”.
The question is what will be the end result of such investigation or inquiry? The answer is in Section 188 (1) & (2) of the Constitution which empowers the State House of Assembly to remove a governor by impeachment, for “gross misconduct in the performance of the functions of his office”. See the Court of Appeal decision in ABARIBE V. ABIA STATE HOUSE OF ASSEMBLY (2002) 14 NWLR (Pt.788) 466 @488. Section 188 (2) – (10) in reasonable details, spelt out the protocols and procedure for this to be effected, and its subsection (11) says that “gross misconduct means a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as to amount in the opinion of the House of Assembly to gross misconduct.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
These are fundamental constitutional issues which the provisions of Sections 6 and 7 Of the EFCC Act, 2004 will have to contend with in order to allow the charge in which the Appellant as a serving governor was not named as a “Defendant”, but indicted by specific counts 1-4 in the Charge as a co-conspirator and one who had converted “property of Government of Akwa-lbom State” to be sustained and validated. It is for these reasons, that I regard the said counts 1 – 4 in the Charge as a constituting gross abuse of the statutory powers conferred on the Respondent as it was exercised clearly and deliberately to undermine or circumvent the overriding provisions of the Constitution which established a federal structure of government by Section 1 (1); 2 (1) & (2) of the Constitution, 1999 as amended.
These provisions read:
Section 1: This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
Section 2: Nigeria is one indivisible and indissoluble sovereign State to be known as the Federal Republic of Nigeria.
(1) Nigeria shall be a Federationconsisting of States and Federal Capital Territory. (Underline is mine).
Before I conclude on my contribution to the lead judgment, let me reflect a little on the provision of Section 308 (2) of the Constitution which neither of the parties addressed, and I expressed this view by way of obiter. The said Section reads:
308 (2) “The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to which this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.”
The question which again welled up in my thoughts, is whether the instant Charge by its counts 1 – 4 in which the Appellant was specifically indicted, but was not named as a Defendant, is one in which it can be argued, that the Appellant can at best be described as a “nominal party”. My view is that the words “nominal party” in this provision can only reasonably be read in the context of a civil proceeding and not criminal proceeding because the concept of a “nominal party” is alien to criminal proceedings.
To apply the literal rule of interpretation to construe the saidprovision in order to describe the status of the Appellant in the charge as constituted in the lower Court, will not only lead to grave legal absurdity, but it will do violence to the primary goal and intention of the drafters of the Constitution whose genuine intention was to give the office holders in Section 308 (3) of the Constitution, a temporary yet absolute peace of mind whilst in office, and not to be distracted by any criminal proceeding based on a Charge constituted in the way and manner the Appellant who was not directly charged, but was indicted of criminal allegations which he cannot defend by virtue of being a sitting governor of Akwa Ibom State. As I had earlier observed, the said constitutional immunity from criminal process cannot be waived as the provision of Section 308 (1) (a) and (b) of the Constitution, was not couched in a permissive language but mandatory.
In order that the legislative goal and objective of Section 308 of the Constitution is not defeated, the Court must apply the purposive rule of interpretation otherwise known as the golden rule or the mischief rule of interpretation. (See the seminal decision of the Court ofAppeal in DR. TUNJI BRAITHWAITE v. GRASSROOTS DEMOCRATIC MOVEMENT & 3 ORS. (1998) 7 NWLR (pt.557) 307 @ 325-326 G-B). This is because, to read and construe the words “nominal party” in Section 308 (2) of the Constitution only in relation to criminal proceedings as the drafters of the said provision, would not have made provision for a person or status that is unknown to criminal jurisprudence as there can be no “nominal” Defendant in criminal prosecutions.
In the seminal work of the learned author of “Maxwell On Interpretation of Statutes,” 12th Ed. by P. St. J. Langan, at page 137, it was argued that such purposive interpretation is: “To carry out effectually the object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined: quandoaliquidprohibetur, prohibetur et omne per quod devenituradillud’. The learned author had earlier from the same text, citing the dictum of Blackburn J in Magdalen College Case (1616) 11 Rep. 66b states that: “the office of the judge is to make such construction as will suppress the mischief, and advance theremedy, and to suppress all evasions for the continuance of the mischief.”
On his part, the learned authors of Black’s Law Dictionary, 8th Edition by Brian A Garner at page 1154 defines the concept of “nominal party” as “A party to an action who has no control over it and no financial interest in its outcome, especially, a party who has some immaterial interest in the subject matter of a Law suit and who will not be affected by any judgment, but who is nonetheless joined in the law suit to avoid procedural defects. An example is the disinterested stakeholder in a garnishment action – Also termed formal party”.
I am not in any doubt, that a criminal charge is not a law suit, and when this definition is read in the context of Section 494 of the ACJA, 2015, a Defendant is defined “to mean any person against whom a complaint, Charge or information is made”. Can it then be said, that the Appellant herein will not be interested in the outcome of the criminal Charge in which, though not named as a Defendant, but his name conspicuously featured in counts 1 – 4 of the Charge which relate to the offences of “conspiracy”, “conversion’; “concealment”and “criminal breach of trust?
Having regard to the connotation of these affirmative indictments, would it be right to describe the Appellant as a “nominal party” to the criminal proceeding constituted by the instant Charge? It’s a concept that is unknown to criminal law in the common law jurisdictions. The lead judgment had already reproduced the entire 10 counts in the Charge and I need not reproduce them again.
My noble Lords, it is only in civil proceedings, when the Supreme Court’s decision in GREEN V. GREEN (1987) 3 NWLR (pt. 61) 480 wherein the apex Court discussed in details, the three categories of parties known to our adjectival law as a “necessary party’; a “proper party” and a “desirable party”, that there are nominal parties, and when the decision is carefully read and contexualised vis-a-vis the instant criminal charge in which the Appellant’s name featured in the statements of the offences in counts 1 – 4 that it will be better understood that to describe him as a “nominal party” by applying a literal rule of interpretation to the provision of Section 308 (2) of the Constitution, will amount to a misuse of legal terms. These areconcepts that are unknown to criminal jurisprudence as a person is either a Defendant in a Charge or he is an accomplice to the offences committed and charged or he is listed as a witness in the proof of Evidence except if he’s the nominal complainant. When on the face of the Charge, in relation to counts 1 – 4, it will certainly be a misuse of legal term to describe the Appellant, a serving governor of Akwa Ibom State as an “accomplice” to the allegations made against the 2nd Respondent because, by virtue of his office, he represents in my view, the sovereign authority of Akwa Ibom State as one of the 36 federating States created by Section 3 (1) of the Constitution and the property of whom he was alleged to have convened. He can only be the “principal offender” if he can be proceeded against whilst still in office.
There cannot be a “nominal party” in a criminal proceeding in the context of the provision of Section 308 (2) of the Constitution and unless the entire provisions in Section 308 is read communally with the other sections of the Constitution which I had considered in this analysis, it’s easy to misconstrue the term “nominal party” asalso relating to criminal proceedings. The drafters of the Constitution could not have made provision for a person or status that does not legally or factually exist in criminal law. I have alluded to this for completeness of my analysis on this vexed issue as regards the specific mention of the Appellant’s name in counts 1 – 4 of the Charge filed in FHC/L/CR/418C/18.
On the strength of this analysis, I wholly subscribe to the lead judgment because, the disingenuous stratagem employed by the 1st Respondent on the way the Charge in FHC/L/418C/18 was framed and constituted, was intended to undermine the constitutional sovereignty of the Akwa Ibom State being one of the States created by Section 3 (1) of the Constitution read in conjunction with Section 2 (2) of the Constitution.
My Lords, it is my view that when these constitutional provisions which I have adverted attention are carefully read, perhaps contextualised vis-a-vis counts 1-4 in the criminal Charge in FHC/L/418C/2018 in which the Appellant as a serving Governor of Akwa Ibom State is indicted though not specifically named as a Defendant, I have no doubt, that the initiation andcontinuation of the proceedings in the lower Court constituted an unmitigated assault on the sovereignty of Akwa Ibom State being one of the 36 federating States created by the Constitution, 1999 (as Amended) as the second tier of a federal structure. The said Charge in relation to counts 1 – 4 whilst the Appellant is still a serving Governor of the State was intended to undermine the authority and supremacy of the Constitution vis a vis the specific provision in Section 308 (1) and (2) of the Constitution.
In so far as this is so, the 1st Respondent’s exercise of its statutory powers pursuant to Sections 6 and 7 of the EFCC Act, supra was an exercise against the Appellant as a serving Governor deliberately orchestrated to undermine the authority of the Constitution and to ridicule the clear letters, intimidate the spirit and emasculate the principles of federalism as conceived by the drafters of the Constitution, 1999 (as Amended) in terms of devolution of governmental powers and of the structure of government of the Federal Republic of Nigeria. See: Section 2(1) & (2) of the Constitution. It will not be allowed to stand. By way of passing remark, I have doubts, if the Attorney-General of the Federation, being an office created by Section 150 (1) of the Constitution, and recognised as the Chief Law Officer of the Federation in the exercise of its constitutional powers in Section 174 (1) – (3) of the Constitution would have authorised the framing of these offensive Charge as contained in its counts 1 – 4 against a serving Governor of a State. It is clearly unconstitutional and constituted a gross abuse of the 1st Respondent’s statutory powers which I dare say, must and can only be exercised in subordination to the pristine authority of the Constitution as the nation’s “ground norm”. It should not be allowed to stand, when an Agency of the F.G.N will exercise its statutory powers, as it were, to terrorise a serving governor of a State of the federation being the second tier in the structure of government of the federation. Consequently, counts 1 – 4 in the charge filed in FHC/L/CR/418c/18 being a gross of abuse of the 1st Respondent’s statutory powers in Sections 6 and 7 of the EFCC Act, supra are hereby struck out. See the Supreme Court’s decision in J. O. AMAWO & ANOR v. A. G. NORTH CENTRAL STATE & 2 ORS. (1973) ALL NLR 598 @ 603.
I ally myself with the consequential orders made in the lead judgment as the charge has become gravely tainted when x-rayed vis-a-vis the provisions of the Constitution and the official status Of the Appellant as a serving governor of Akwa Ibom State. It is my view, that Counts 1 – 4 in the Charge filed in FHC/L/CR/418c/18 be struck out as they constituted grave violations of the provisions of the Constitution and of the right of the Appellant to fair hearing. They are nothing but a cavalier Strategy to put the Appellant on trial through the back door without being formally named as a Defendant, and this tactic is nothing other than a gross abuse of prosecutorial power not envisaged by Section 174 (1) — (3) of the Constitution as amended. To allow the said counts 1-4 in the Charge to hold as couched, will be an abdication of the Court’s duty to uphold the Constitution and protect the sanctity of its provisions under Section 1(1) by which it has been declared to be supreme and binding on all “authorities and persons throughout the Federal Republic Of Nigeria”. The appeal is allowed by me.
Appearances:
R. CHARLES MEKWUNYE ESQ. WITH HIM, NONSO ANYASI ESQ. For Appellant(s)
ROTIMI OYEDIPO ESQ. FOR 1ST RESPONDENT
2ND RESPONDENT SERVED WITH NOTICE, BUT ABSENT For Respondent(s)