Elfrieda Oluwayemisi Williams-Dawodu JSC
Ugochukwu Anthony Ogakwu JCA
Danlami Zama Senchi JCA
APPELLANTS
. FEDERAL REPUBLIC OF NIGERIA
RESPONDENTS
APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE
On 23rd January 2012, the Respondent was granted leave by the High Court of the Federal Capital Territory, Abuja to prefer a criminal charge against the Appellant in CHARGE NO. FCT/HC/CR/129/2011: FEDERAL REPUBLIC OF NIGERIA vs. LAWRENCE U. C. ATUANA. The Respondent then preferred an eleven-count Charge against the Appellant for alleged infractions contrary to various provisions of the Corrupt Practices and Other Related Offences Act, 2000 and the Penal Code Act.
The Appellant filed a Preliminary Objection praying the court to strike out all charges on the grounds that the charges were brought under non-existing laws, were an abuse of court process and in breach of the defendants constitution right to fair hearing among other grounds.
The lower Court dismissed the preliminary objection. Peeved by the decision of the lower Court, the Appellant made the instant appeal.
Appeal dismissed
Ø Whether the learned trial Judge was right in holding that the extant Law is the Corrupt Practices and Other Related Offences Act 2000 and that same has not been repealed by the Corrupt Practices and Other Related Offences Act 2003 Cap C31 Laws of the Federation of Nigeria 2004?
Ø Whether the trial Court had the jurisdiction to try the Appellant as charged?
Ø Whether the Proof of Evidence before the trial Court disclosed a prima facie against the Appellant as to ground the grant of leave to prefer the charge as constituted?
In NWANKWOALA vs. FRN (2018) LPELR (43891) 1 at 9-14, Rhodes-Vivour, JSC stated:
“After the prosecution closed its case, the learned trial Judge heard submission from counsel on whether the ICPC Act 2000 had been repealed…
I have read both views and relevant legislation on the matter. I am in complete agreement with the reasoning of both Courts. To my mind, the issue appears straightforward.
There is in existence the Corrupt Practices and Other Related Offences Act of 2000. In 2003 the National Assembly promulgated the Corrupt Practices and Other Related offences Act of 2003. It has as its commencement date 18th May 2003. In Section 55 supra, the Corrupt Practices and Other Related Offences Act, 2000 was repealed. See Laws of the Federation Vol. 3 Chapter C31 – 1. Four days after 18th May 2003, that is on 21st May, 2003 a Federal High Court Abuja… declared the ICPC Act of 2003 passed by the National Assembly in violation of a subsisting Court order null, void, and of no effect, and revalidated the ICPC Act of 2000.
In the absence of an appeal from the decision of the Federal High Court that ruling remains inviolate until set aside. The law in force is the Corrupt Practices and Other Related Offences Act 2000 and not the Corrupt Practices and Other Related Offences Act 2003. See FRN v. Wabara (2013) 5 NWLR (Pt. 1347) p.331; AG Ondo v. AG Federation & 35 Ors (2002) 9 NWLR (Pt.7 72) p. 222; Egharevba v. FRN (2016) 2 SC (Pt. iii) p.166.
I must observe that since 2003, in the compilation of laws of the Federation the Corrupt Practices and Other Offences Act 2003 could be found. See Laws of the Federation, Vol.3 Chapter C 31 -1 (updated to the 31st Day of December, 2010). A law attains legitimacy and is valid only after it passes through the well-laid down procedure. When a law is declared null and void by a Court of law, as is the case with the 2003 statute, it remains so in the absence of a contrary declaration from the Court. When legislation that should not be in the statute books finds its way there, it can only mean that those that did the compilation were not aware of the Court order. – Per U. A. Ogakwu, JCA
In his contribution, Peter-Odili, JSC asseverated at pages 30-32:
“A foray into the historic journey of what really is the extant law, the original Act on the Corrupt Practices and Other Related Offences Act (ICPC) was promulgated in 2000 which incidentally is the Law under which appellant was charged, convicted and sentenced. Indeed there was an attempt in 2003 to repeal the 2000 Act and substitute it with an amended version in 2003 but before the process at the National Assembly could be concluded an order of the Federal High Court, Abuja restrained all parties from taking further action on the proposed amendment. Curiously the National Assembly proceeded and produced a Bill of 2003 which when sent for the presidential assent was returned, the President pointing out that there was a valid Court order of restraint. The National Refusal [Assembly] and some of their members approached the … Federal High Court Abuja.
In a ruling delivered on the 21st day of May, 2003, Egbo-Egbo J declared the said ICPC Act, 2003 passed by the National Assembly in violation of the subsisting order of Court as null, void, and of no effect and revalidated the ICPC Act 2000…
That ruling has not been appealed against and so remains valid and subsisting thereby re-enthroning the ICPC Act, 2000 until such a time in future something is done repealing or amending it. This is so because decisions of Courts of law continue to operate until set aside or overruled on appeal and since that has not happened, the ICPC Act, 2000 remains the extant law.”
In the same vein, Eko, JSC intoned at pages 44-46:
“It is correct, as submitted by the learned counsel for the Appellant, that the Appellant can only be charged and prosecuted for an offence under an existing statute… Section 36(8) of the 1999 Constitution reiterates that rule of law: that no person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence.
The peculiar circumstance of this case, however, does not support the submission of the learned counsel for the Appellant. The ICPC Act 2003, that purportedly repealed the ICPC ACT 2000 under which the Appellant was tried, was declared a nullity by the Federal High Court on 21st May, 2003… This decision of a Court of competent jurisdiction having not been appealed or set aside remains extant, persistent, and binding. The effect is that the ICPC Act, 2000, and not the ICPC Act, 2003, remains a valid statute in the corpus juris of the Laws of the Federation. It is not in dispute, and it has to be pointed out, that Section 4(8) of the Constitution expressly subordinates ‘the exercise of the legislative power by the National Assembly to the jurisdiction of Courts of law’ unless the Constitution otherwise provides. The Federal High Court exercising this undoubted superior jurisdiction nullified the ICPC Act. 2003.
Historically, the ICPC 2000 has survived several assaults on it. A.G. ONDO STATE V. A.G., FEDERATION & ORS (2002) 9 NWLR (PT. 772) 222 affirmed the constitutional authority of the National Assembly to enact this same ICPC Act, 2000 in one of the earliest assaults on this ICPC Act 2000. This latest attack, on the grounds that the still born ICPC Act, 2003 had repealed the ICPC Act 2000 is a non starter.”
In a recent decision of this Court in LAWAN vs. FRN (2022) LPELR (56968) 1 at 24-27, Dongban-Mensem, PCA held:
“The Appellant sought to distinguish between the decision in NWANKWOALA V. FRN (2018) LPELR-43891 (SC) where the Apex Court declared the Corrupt Practices and Other Related Offences Act, 2000 as the extant law and Suit No. FHC/ABJ/CS/225/2003 between AGF V. ALH. UMAR GHALI NA’ABBA where the Apex Court ordered a retrial of the suit challenging the Constitutionality of the Corrupt Practices and Other Offences Act, 2003.
It is noteworthy that the Appellant has acknowledged that since the Order for retrial by the Apex Court, the suit has not been re-heard or retried. I therefore agree with the Respondent that the Pronouncement of the Apex Court in NWANKWOALA V. FRN (SUPRA) is the binding law on which of the Corrupt Practices and Other Offences Act is valid and subsisting.
The Apex Court in NWANKWOALA V. FRN (SUPRA) declared…
The above decision of the Apex Court laid to rest any lingering doubt about the status of Corrupt Practices and Other Related Offences Act of 2003. It is not the relevant law. The 2003 ICPC Act had been declared null and void. The publication of an Act in the Statute Book does not confer legitimacy on the Act especially when there is a judicial pronouncement annulling such Legislation.”
I kowtow to the above views eloquently expressed by the eminent jurists. The 2000 Act remains extant. There is nothing in the Appellant’s contention based on which this Court can depart from its previous decision or not follow the decision of the apex Court. In resolving this issue against the Appellant, I will redact the words of Eko, JSC and state this attack on the 2000 Act is a non-starter, it is doomed to fail, and it has failed. – Per U. A. Ogakwu, JCA
By Section 174 (1) of the 1999 Constitution, as amended, the Attorney-General of the Federation has the power to institute, undertake, take over, and continue or discontinue any 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. This power of the Attorney-General of the Federation is not exercised at the instance or direction of INEC or NASS. Section 61 (1) of the 2000 Act provides as follows:
“Every prosecution for an offence under this Act or any other law prohibiting bribery, corruption and other related offences shall be deemed to be done with the consent of the Attorney-General.”
The Charge preferred against the Appellant as shown on pages 2 and 7 of the Records of Appeal was done by the ICPC on behalf of the Attorney-General of the Federation, and who has the constitutional power of undertaking criminal prosecutions. In the circumstances, there was no legal requirement for there to be prior instantiating or direction from INEC or NASS for the prosecution to be undertaken. See UMAR vs. FRN (2021) LPELR (53936) 1 at 17-24, BELLO vs. FRN (2019) LPELR (48398) 1 at 18-21 and FRN vs. OSAHON (2006) 5 NWLR (PT 973) 361 at 410-411. – Per U. A. Ogakwu, JCA
If anything by the Rule in SMITH vs. SELWYN (1914) 3 K. B. 98, the civil actions do not take precedence over criminal prosecution as both can continue pari passu. There is therefore no abuse of process in the criminal prosecution having been commenced when the two civil actions were still pending. See BELLO vs. A-G OYO STATE (1986) LPELR (764) 1 at 74, A-G KADUNA STATE vs. HASSAN (1985) LPELR (617) 1 at 49-50, OJIKUTU vs. ACB LTD (1968) LPELR (25484) 1 at 9 and FRN vs. LALWANI (2013) LPELR (20376) 1 at 22-25. – Per U. A. Ogakwu, JCA
It seems that it is now settled law that the ICPC can initiate and maintain criminal proceedings against any person. Hear Eko, JSC in EHINDERO vs. FRN (2017) LPELR (43458) 1 at 21-22 and 26:
“It is unfortunate that the appellant persisted in his erroneous view that the ICPC cannot, under Section 26(2) of its enabling Act, initiate and maintain criminal proceedings against any person, including the appellant herein, for an offence under the said Corrupt Practices and other Related Offences Act, 2000 (i.e. the ICPC Act), in spite of the loud allusions by the 1st respondent and the learned trial Judge to the undoubted and authoritative pronouncement on it by this Court in A.G, ONDO STATE v. A. G. FEDERATION & ORS (2002) 6 SC. (pt. 1) 1…
Be that as it may, the Full Court of this Court had cause to consider the constitutional validity of several provisions of the ICPC Act in 2002 in the A.G, ONDO STATE v. A. G, FEDERATION & ORS (supra). Sections 26(3) and 35 of the ICPC Act were struck down as being unconstitutional. The validity of the other provisions, including Section 26 (2) of the ICPC Act was affirmed…
In enacting Sections 6(a), 26(2), 61(1) of the ICPC Act, the National Assembly was conscious that, by dint of Section 174 of the Constitution, the Attorney-General of the Federation remains the repository of the prosecutorial powers of the Federation and that the ICPC is statutorily presumed and deemed to be prosecuting the offenders under the ICPC Act as an, or the, agent of the Attorney-General of the Federation.” – Per U. A. Ogakwu, JCA
The application for leave is not meant to be served on the Appellant; it is after grant of leave that the Charge and proof of evidence will be served on the Appellant. Accordingly, the Appellant’s contention that he was denied his right because the proof of evidence was not served on him is not a material factor in considering whether the lower Court rightly held that a prima facie case was disclosed: GAJI vs. THE STATE (1975) LPELR (1301) 1 at 25 and MASSALA vs. IGP (2018) 11 NWLR (PT 1630) 224 at 233. – Per U. A. Ogakwu, JCA
It is settled law that to reach a decision on whether to quash a Charge or an Information, the proof of evidence is examined by the Court: MASSALA vs. IGP (2018) 11 NWLR (PT 1630) 224 at 233, ATANDA vs. A-G WESTERN NIGERIA (1965) NMLR 225, ABACHA vs. THE STATE (supra), DADA vs. FRN (2014) LPELR (24255) 1 at 37-38 and HEMBE vs. FRN (2014) LPELR (22705) 1 at 52-58. The principles of law guiding a Court in arriving at a decision on whether to quash an information for non-disclosure of a prima facie case are well settled. The cases of IKOMI vs. THE STATE (1987) 1 QLRN 1 and ABACHA vs. THE STATE (2002) 7 SC (PT I) 1 are the loci classicus in this area of the law. In IKOMI’s case, Nnamani, JSC (of blessed memory) stated as follows at page 9:
“It seems to me that the first; and indeed a fundamental principle, is that before granting consent a Judge must be satisfied that the depositions disclose an offence and that the trial will not amount to an abuse of process. If the reverse is the case, then of course the information will be quashed.”
The learned law lord continued at page 12 as follows:
“The next principle is of course that even if the depositions and statements attached to the information disclose an offence, an accused person should not be put on his trial if there is no link between him and that offence. If the Judge grants consent to prefer an information in the absence of such link such information is bound to be quashed.”
So, clearly, the principles are (1) that the depositions disclose an offence and (2) that the accused is linked to the offence. See also IKOMI vs. STATE (1987) 1 QLRN 1 per Karibi-Whyte, JSC at pages 37-38 and Kawu, JSC at pages 41-42; ABACHA vs. STATE (2002) 7 SC (PT I) 1 per Belgore, JSC (later CJN) at pages 12-13 and 24, per Onu, JSC at pages 37-38 and per Katsina-Alu, JSC (later CJN) at page 59.
Where the depositions disclose an offence, what nature of evidence would be enough for it to be said that the accused person is linked with the offence? Again, the authorities are agreed that it is sufficient if the depositions disclose a prima facie case against the accused person. Nnamani, JSC put it thus at page 16 of the IKOMI case:
“In my view, once there are circumstances from which it can be justly inferred that an accused person could have committed the offence, he should be put on his trial. Whether there are co-existing circumstances which would weaken that inference, or whether the evidence leads irresistibly to accused person’s guilt, can only be determined at the trial.”
At page 20 the learned Justice of the Supreme Court of blessed memory stated:
“I am of the view that as in that case, all that is required at the point when a Judge grants consent to prefer information is that there be evidence which requires some explanation.”
At page 27 of the IKOMI case, that sage, Aniagolu, JSC put the matter in these words:
“A Judge granting ‘consent’ ought to be satisfied that a prima facie case has been established and a challenge of the ‘consent’ can only be successfully established by showing that no prima facie case could have been made on the proof of evidence put forward before the Judge. The issue is not whether the evidence is sufficient to ground a conviction. All that is necessary is whether the evidence discloses a prima facie case, even if weak, against the accused person.”
See also per Coker, JSC in the IKOMI’s case at pages 32-33, Karibi-Whyte, JSC at page 38 and Kawu, JSC at page 42.
The law as to the requirement for the existence of a prima facie case against the defendant was similarly stated in ABACHA vs. STATE (supra) per Belgore, JSC (later CJN) at pages 9, 12-13 & 24 and per Onu, JSC at pages 36-37 & 39.
Applying these principles to the circumstances of this matter I need to state that a Court has to be cautious not to make any observations which may prejudge the main issues in the proceedings: ABACHA vs. STATE (supra) at 29. – Per U. A. Ogakwu, JCA
The expression prima facie case has been defined as meaning that there is a ground for proceeding. Put differently, that something has been produced which makes it worthwhile to continue the proceeding. On the face of it, it suggests that the evidence produced so far indicates that there is something worth looking at. See DURU vs. NWOSU (1989) 1 NWLR (PT 113) 24 at 453, UBANATU vs. COP (2000) 1 SC 31 at 36-37 and UMEZULIKE vs. CHAIRMAN, EFCC (2017) LPELR (43454) 1 at 18-19. Prima facie case is disclosed when the evidence, if uncontroverted and believed, will be sufficient to prove a case against an accused person: YAV vs. THE STATE (2005) 5 NWLR (PT 917) 1 at 22, AMINU vs. THE STATE (2005) 2 NWLR (PT 909) 180 at 191 and MASSALLA vs. IGP (2018) 11 NWLR (PT 1630) 224 at 236. – Per U. A. Ogakwu, JCA
The grant of leave to prefer a Charge is discretionary, like all judicial discretions, it is exercised judicially and judiciously. Appellate Courts lightly interfere with the exercise of discretion by the lower Courts except where the manner of exercise of discretion is perverse and occasioned a miscarriage of justice. SeeTHE STATE vs. GALI (1974) LPELR (3219) 1 at 8, EBE vs. COP (2008) LPELR (984) 1 at 7 and FRN vs. WABARA (2013) 5 NWLR (PT 1347) 331 at 354 and 356. When as in this case the discretion is properly exercised, an appellate Court cannot interfere since the discretion is that of the lower Court and it is not for the appellate Court to substitute its views for that of the lower Court: AMAKO vs. THE STATE (1995) LPELR (451) 1 at 11-12, DOKUBO-ASARI vs. FRN (2007) LPELR (958) 1 at 19-21 and MASSALA Vs. IGP (2018) 11 NWLR (PT 1630) 224 at 234. – Per U. A. Ogakwu, JCA
As contained in the lead judgment, the original and substantive law remains the Corrupt Practices and Other Related Offences Acts (ICPC) as promulgated in 2000 and parenthetically the law which the Respondent preferred the Charge against the Appellant. The ruling of Egbo-Egbo J delivered on the 21st day of May, 2003 in Suit No: FHC/ABJ/CS/225/2003 in AGE V. ALH. UMAR GHALI NA’ABBA having not been set aside nor appealed against, its pronouncement remains the substantive law.
See A.G. ONDO STATE V. A.G FEDERATION & ORS (2002) 9 NWLR (Pt. 772) 222; NWANKWOALA V. FRN (2018) LPELR-43891 (SC) and LAWAN V. FRN (2022) LPELR-56968 (CA). – Per D. Z. Senchi, JCA
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