Court of Appeal – July, 2015
Legalpedia Electronic Citation LERCA/L/635/2013
Area of Law
ACTION, APPEAL, CRIMINAL LAW AND PROCEDURE, CONSTITUTIONAL LAW, COURT, INTERPRETATION OF STATUTE, JURISDICTION, LAW OF EVIDENCE, PRACTICE AND PROCEDURE ,WORDS AND PHRASES.
Summary of Facts
The Respondent initiated criminal proceedings against the Appellants for the issuance of dud cheques. Upon commencement of trial, the Appellant as Accused person made an application on Notice to the Court seeking an order striking out the seven counts and statement of offence against him on the grounds that the Court lacked jurisdiction to entertain same and that the charge against him constitutes an abuse of court process. This was opposed by the Respondent. The court after considering the parties argument on the application dismissed same. Aggrieved with the dismissal, the Appellant has appealed to the Court of Appeal.
Issues for Determination
CRIMINAL PROCEEDINGS – POWER OF THE ATTORNEY GENERAL OF THE STATE TO INSTITUTE, TAKE OVER OR DISCONTINUE CRIMINAL PROCEEDINGS IN THE STATE – SECTION 211 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999
“The Constitution of the Federal Republic of Nigeria by Sections 211 empowers the Attorney General of the State to institute, take over or discontinue criminal proceedings in the state.
Section 211 of the 1999 Constitution provides thus:
211 (1) The Attorney General of a state shall have power
(a) To institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by or under any law of the House of Assembly;
(b) To take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and Prohibition of Political activities by certain association
(c) To discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
(2) The powers conferred upon the Attorney-General of a state under subsection1 of this section may be exercised by him in person or through officers of his department.
(3) In exercising his powers under this section, the Attorney – General of a state shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”PER Y.B. NIMPAR, J.C.A.
CRIMINAL PROCEEDINGS – THE ECONOMIC AND FINANCIAL CRIMES COMMISSION AS AN AGENCY OF THE FEDERAL AND STATE GOVERNMENT IS EMPOWERED TO INSTITUTE CRIMINAL PROCEEDINGS – SECTION 211(1) (B) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999
“The EFCC which initiated the proceedings has been described in the case of Amadi V FRN (2008) 18 NWLR (Pt 119) 259 at 276 as follows:
“Indeed the EFCC is a common agency for both the Federal and State economic and financial crimes, and as such, it qualifies as any other authority to institute criminal proceedings under Section 211 (1) (b) of the Constitution of the Federal Republic of Nigeria, 1999.”PER Y.B.NIMPAR, J.C.A.
INITIATION OF CRIMINAL PROCEEDING –THE ECONOMIC AND FINANCIAL CRIMES COMMISSION CAN INITIATE ACTION IN THE NAME OF THE FEDERAL GOVERNMENT.
“The issue of what name to initiate proceedings by the EFCC has been settled by the Supreme Court in the case of Nyame V Federal Republic Of Nigeria (SUPRA) which held thus:
“The Economic and Financial Crimes Commission which initiated the charges can only do so in the name of the Federal Government and not Taraba State as an agency of the Federal Government.”PER Y.B. NIMPAR, J.C.A.
POWER TO INITIATE PROCEEDINGS – THE ECONOMIC AND FINANCIAL CRIMES COMMISSION IS VESTED WITH POWERS TO INITIATE PROCEEDINGS IN ANY COURT IN NIGERIA
“The EFCC is vested with powers to initiate proceedings in any court in Nigeria for the offences bordering on economic and financial crimes even under state laws.” PER Y. B. NIMPAR, J.C.A.
“ALL”– INTERPRETATION OF “ALL” IN A STATUTE
“The word “all” was given judicial consideration in the case of Braithwaise V G.D.M (1998) 7 NWLR (Pt 557) 307 at 327where the court said thus:
“I do not think it is an exaggeration to say that the word “all” in construing a statute is extremely recalcitrant, and if the word “all” is to cut down so as to exclude certain things which might come under the description, that must be done in the clearest possible language. The proper way of construing a word like the word “all” in such a contest as this is to say that “all” means “all” and it does not mean “some”, unless you find a compelling context which forces you to place some limitation on the word.” PER Y. B. NIMPAR, J.C.A.
INITIATION OF CRIMINAL PROCEEDING –THE ECONOMIC AND FINANCIAL CRIMES COMMISSION CAN INITIATE PROCEEDINGS IN THE NAME OF THE FEDERAL GOVERNMENT
“The EFCC therefore being an agency of the Federal Government can initiate proceedings in the name of the Federal Government even though it has been vested with powers to sue and be sued in its name. See Oluese V. FRN & Anor(2013) LPELR-22016(CA).” PER Y. B. NIMPAR, J.C.A.
PROSECUTION OF CASES BY THE STATE ATTORNEY GENERAL – SECTION 211 OF THE 1999 CONSTITUTION DOES NOT RESTRICT THE DELEGATION OF POWER TO PROSECUTE CRIMINAL MATTERS ONLY TO THE OFFICERS IN THE ATTORNEY GENERAL’S DEPARTMENT.
“Section 211 of the Constitution talks about the power of the State Attorney-General to prosecute, but decidedly the word ‘may’ used in that Section does not restrict the delegation of the Attorney-General’s power to only officers in his department, see Amadi V. FRN (SUPRA).” PER Y.B.NIMPAR, J.C.A.
EXTENT OF THE POWER OF THE ATTORNEY GENERAL OF THE FEDERATION TO INSTITUTE CRIMINAL PROCEEDINGS – THE ATTORNEY GENERAL OF THE FEDERATION HAS POWER TO INSTITUTE AND UNDERTAKE CRIMINAL PROCEEDINGS AGAINST ANY PERSON AND BEFORE ANY COURT OF LAW IN NIGERIA
“The Economic and Financial Crimes Commission (Establishment) Act 2004 is one enactment by the National Assembly of the Federal Republic of Nigeria, and so the Attorney General of the Federation shall have power to institute and undertake criminal proceedings against any person before any court of Law in Nigeria, in respect of any offence created by or under any Act of the National Assembly.
But the offences of stealing and issuance of dishonoured cheques contrary to Section 390 (8) (b) of the Criminal Code Law C17 Vol. 2 Laws of Lagos State of Nigeria 2003 and Section 1(1) (a) of the Dishonoured Cheques (offences) Act, Cap D11 Laws of the Federation of Nigeria 2004, cannot be isolated, as they constitute the phrase “any offence” in Section 174(1)(a) of the Constitution of the Federal Republic of Nigeria 1999” PER Y. B. NIMPAR, J.C.A.
INTIATION OF CRIMINAL PROCEEDINGS BY THE ECOMONIC AND FINANCIAL CRIMES COMMISSION –THE ECOMONIC AND FINANCIAL CRIMES COMMISSION CAN INSTITUTE CRIMINAL PROCEEDINGS WITHOUT A FIAT FROM THE ATTORNEY GENERAL OF A STATE
“The EFCC can initiate such proceedings even without a fiat from the Attorney General of Lagos State and if so, it can do in its authorized name and not the name of the People of Lagos.Also, the Attorney – General of the Federation can prosecute in respect to the Economic and Financial Crimes offences, and can carry out such functions in the name and on behalf of the Federal Republic of Nigeria even when prosecuting under a corresponding State Law in the Federation. See Amadi V. FRN (Supra).It is my view that the Federal Attorney General has power to prosecute any offence in respect of which the EFCC is concerned.” PER Y.B.NIMPAR, J.C.A.
SUPREMACY OF THE CONSTITUTION – THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA IS THE GRUND NORM AND ALL OTHER LEGISLATIONS ARE SUBSERVIENT TO IT
“The court in the case of FRN V Tomoluju Okunomo(2010) LPELR – 4154 (CA),while referring to S. 1 of the 1999 Constitution (as amended)held thus:
“From the wordings of the section, I have reproduced above, the supremacy of the Constitution above all other laws in the country is not in doubt. The Constitution of the Federal Republic of Nigeria is therefore the grund norm and all other legislations are subservient to it.” PER Y. B. NIMPAR, J.C.A.
LEGISLATION – TYPES OF REPEAL KNOWN TO NIGERIAN JURISPRUDENCE
“There are two types of repeal known to our jurisprudence these are:
(i) A repeal with re-enactment (or replacement) of the repealed law; or
(ii) A repeal without replacement.
In Akingbola V FRN (SUPRA), the court further held as follows:
“A typical situation where an Act is repealed and re-enacted is where the law in the area is being upgraded but the law being repealed needs to be replaced with a modern version. The Administration of Criminal Justice Law, 2007 is a replacement of the 2003 law; so to all intents and purposes the 2007 law is an update of the 2003, version of the same law.” PER Y.B.NIMPAR, J.C.A.
REPEAL OF AN ACT – A REPEAL DOES NOT AFFECT ANY ACT OR POWERS EXERCISED UNDER IT BEFORE THE REPEAL OR AMENDMENT
“Can a repeal affect actions taken under the repealed Act or Law? In the case of Sossa V Fokpo(2000) LPELR – 6841 (CA) the court held as follows:
“It is now settled law that it is common of Constitution that the repeal or amendment of law does not affect any act or powers exercised under it before the repeal or amendment. This is also statutorily renergised in Section 1 (1) (b) of the Interpretation Act Cap 112 LFN 1990.SeeUmeji V A.G. Imo State (1995) 4 NWLR (Pt 391) 552, Okafor V Onianwa (1964) 1 ALL NLR 348
See also Abdullahi V Military Administrator &Ors(2003) LPELR 7194 (CA)where the court held:
“An action taken or an operation carried out under an enactment subsists or is unaffected after the legislation is repealed by don’t of Section 6 (1) (b) of the Interpretation Act Cap 192 of the Laws of the Federation of Nigeria, 1990 it survives inspite of the repeal of the lawunder which the action was taken. Section 6 (1) (b) of the said Act Cap 192 reads as follows:
6(1) The repeal of an enactment shall not
(b) Affect the previous operation of the enactment or anything duly done or suffered under the enactment.” See also Afolabi V Governor Of Oyo State (1985) 2 NWLR (Pt 9) 934; Uwaifo V Attorney General Bendel State (1982) 7 SC 124 and Lipede V Sonekan(1995) 1 NWLR (Pt 374) 668.” PER Y. B. NIMPAR, J.C.A.
JURISDICTION – ELEMENTS THAT GIVES AUTHORITY TO A COURT IN ADJUDICATING A MATTER.
“It is trite that jurisdiction is a threshold matter in any adjudication. It has been held to be the life of a suit and the locus classicus is the case of Madukolu V Nkemdilim(1962) 2 SCNLR 341where 3 important elements were identified to give authority to the court in adjudicating over a matter. These 3 elements were further recasted in the case of A.G. Lagos State V Dosunmu(1989) 6 SC (Pt 11) 7 which states thus:
“An attack on jurisdiction is no doubt a question of law. It is a question of law, but it is much more than that. It is question of competence. It is the power and authority of a court to proceed to hear and determine the particular case before its jurisdiction exists.
(a) When the court has cognizance of the class of cases involved
(b) Proper parties are present; and
(c) The part to be decided is within the powers of the court.”PER Y.B.NIMPAR, J.C.A.
JURISDICTION – CONCEPT OF JURISDICTION
“In Madukolu V Nkemdilim(SUPRA),the concept though the same, different classification was adopted. Also in the case of Dapianlong V. Dariye(2007) 4 S.S (PT 111) 118, the court held as follows:
“Jurisdiction is a radical and crucial question of competence because if a court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio, however well conducted and brilliantly decided they might be since a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. Jurisdiction is therefore considered to be the nerve centre of adjudication; the blood that gives life to the survival of an action in a court of law in the very same way that blood gives life to the human being in particular and the animal race in general”. PER Y.B. NIMPAR, J.C.A.
COMPETENT WITNESS – MEANING OF A COMPETENT WITNESS
“This is settled by the Evidence Act, 2011, Section 175 (1) which provides as follows:
“All persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, any other cause of the same kind.
Therefore, anyone who has relevant evidence to give and is not disqualified by law is a competent witness to testify. See the case of Lasun V Awoyemi(2011) LPELR – 5116 (CA), Omorinbola II V Military Governor Of Ondo State (1995) 9 NWLR (Pt 418) 201 at22,and Salisu V Amusan (2010) LPELR – 9103 (CA).” PER Y. B. NIMPAR, J.C.A.
COURT – DUTY OF THE COURT TO DECIDE ALL ISSUES PUT FORWARD BY THE PARTIES IN ANY MATTER
“It is the duty of the court to decide all issues put forward by the parties in any matter.” PER Y. B. NIMPAR, J.C.A.
EFFECT OF AN AMENDMENT – AN AMENDMENT RELATES BACK TO THE ORIGINAL DATE OF THE DOCUMENT SO AMENDED
“An amendment relates back to the original date of the document so amended, see F.R.N. V Adewumi(2007) 10 NWLR (Pt 1042) 399.” PER Y. B. NIMPAR, J.C.A.
CHARGE – THE ESSENCE OF THE CHARGE IS TO GIVE AN ACCUSED PERSON SUITABLE NOTICE OF THE CASE AGAINST HIM.
“The necessity of a charge is to give the accused person adequate notice of the case against him to enable him prepare to meet the case in court with his defence.” PER. Y.B.NIMPAR, J.C.A.
BURDEN OF PROOF – THE BURDEN OF PROOF IS ENTIRELY ON THE PROSECUTION IN CRIMINAL TRIALS
“The beauty in criminal trials is that the burden of proof is entirely on the prosecution from beginning to the end.” PER Y.B.NIMPAR, J.C.A.
AMENDMENT OF A CHARGE –WHERE A CHARGE IS AMENDED THE ACCUSED PERSON MUST TAKE A FRESH PLEA
“Once there is an amendment the original charge is replaced by the amended charge and that is why the accused must take a fresh plea on the amended charge. The prosecution still has the right to file additional proof of evidence if it so desires before the close of its case.”PER Y.B.NIMPAR, J.C.A.
Statutes Referred To:
Administration of Criminal Justice Law of Lagos State, 2011
Constitution of the Federal Republic of Nigeria1999 (as amended)
Criminal Code Law C17 Vol. 2 Laws of Lagos State of Nigeria 2003
Dishonoured Cheques (Offences) Act, Cap D11 Laws of the Federation of Nigeria 2004
Economic And Financial Crimes Commission Act
Interpretation Act Cap 112 LFN 1990
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