Legalpedia Citation: (2015) Legalpedia (CA) 36210
In the Court of Appeal
HOLDEN AT ABUJA
Tue Jan 27, 2015
Suit Number: CA/A/226C/2013
CORAM
PARTIES
OLUWATOYIN JINADU APPELLANTS
FEDERAL REPUBLIC OF NIGERIA RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
This is an Appeal against the ruling of the High Court of Federal Capital Territory Abuja. The Appellant herein was the accused person at the trial court and she was arraigned on a twenty-count charge of stealing, forgery and using as genuine, forged documents, contrary to the provisions of Sections 287, 362 and 364 of the Penal Code. On the 16th of October 2012, the Appellant filed a Motion seeking to quash the charge on the ground that it was incompetent and the court lacked the jurisdiction to adjudicate over same, reason being that by the provision of Section 1(2)(a)(b)(c) of the Economic and Financial Crimes Commission Act 2004, the Commission does not have the power and/or competence to file a criminal charge in the name of the Federal Republic of Nigeria. The trial court heard the parties and in its ruling, dismissed the application for lack of merit. Dissatisfied with the ruling, the Appellant has lodged the instant appeal.
HELD
Appeal Dismissed.
ISSUES
Whether the trial judge determined the issue on the interpretation of Section 1(2)(a) and (b) of the Economic and Financial Crimes Act in his Ruling? Whether the proof of evidence demonstrates any link between the Appellant and the offences charged and whether there are counts in the charge which are not rooted in law?
RATIONES DECIDENDI
APPEAL, PRACTICE AND PROCEDURE
ISSUES FOR DETERMINATION – WHETHER AN ISSUE FOR DETERMINATION IN AN APPEAL CAN INCORPORATE TWO DIFFFERENT ISSUES
“Issue (a) identified by the appellant is a composition of two different issues i.e. it combines an issue as to whether the trial judge determined the issue of the interpretation of the provision of Section 1(2)(a) and (b) of the Economic and Financial Crimes Commission Act, and another issue of breach of the appellant’s right of fair hearing. This is not allowed. See Unity Bank Plc Vs. Olatunji (2013) 15 NWLR (Pt.1378) 503.”
LAW OF EVIDENCE, LEGAL PRACTITIONER, PRACTICE AND PROCEDURE
PRESUMPTION OF AUTHORITY – MODE OF REBUTTING THE PRESUMPTION OF AUTHORITY
“The first point is that as held in the case of COMPT N.P.S. Vs. Adekanye (NO. 1) (2002) 15 NWLR, 709 at 318, the Supreme Court held that there is a presumption of authority in favour of counsel who announces appearance for a party, whether or not, he has a fiat or a letter of instruction, and it is only that party who can validly challenge such authority. It was further held that this presumption of authority may only be rebutted by hard evidence adduced by the other party.”
CRIMINAL LAW AND PROCEDURE, PRACTICE AND PROCEDURE
FIAT – WHO CAN CHALLENGE A FIAT?
“As regards the contention of fiat and who may challenge such the Supreme Court per Kalgo JSC held in the case of Federal Republic Of Nigeria Vs. Adewunmi (2007) 10 NWLR (PT. 1042) AT 399, that it is only the Attorney-General of the Federation that could at any time raise questions as to whether or not such authority to prosecute was properly given, Ogbuagu JSC lent his voice to this position when at page 242 Para D stated thus:
‘Firstly, when or where counsel announces that he is appearing for a party, it is now firmly settled that it is not for the Court to start an enquiry into his authority and the court never does.’”
CRIMINAL LAW AND PROCEDURE
CRIMINAL MATTERS – NATURE OF CRIMINAL MATTERS
“It is clear that criminal matters are matters of State. The State does indeed symbolizes the people, and so it follows that any criminal act is deemed to be committed against the State. That is perhaps why in instances when complainant in a criminal matter seeks to withdraw the action against an individual, say after settling the issues out of Court, it does not lead to an automatic withdrawal of the case from the Court as is custom in civil cases.”
CRIMINAL LAW AND PROCEDURE, ATTORNEY GENERAL, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE
CRIMINAL PROCEEDINGS – IMPORT OF SECTION 147 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 ON THE POWER OF THE ATTORNEY GENERAL TAKE OVER AND CONTINUE ANY CRIMINAL PROCEEDINGS THAT MAY BE INSTITUTED BY ANY OTHER AUTHORITY OR PERSONS
“In the case cited by the prosecution of James Okereke (2008) it was held that such power to prosecute is invariably delegated by the State to specific government agencies and officers like the Attorney-General of a State, the Police, the ICPC and EFCC and other related commissions. The cases of Amaechi Vs. INEC (2008) 5 NWLR (PT.973) at 430 are clearly instructive on this point where the Apex Court carefully analysed the powers of the Attorney-General of the Federation under Section 147 of the 1999 Constitution and came to the decision that rather than granting the power of institution to the office of the Attorney General of the Federation, it grants powers to take over and continue any criminal proceedings that may be instituted by any other authority or persons. Onnoghen JSC was of the considered view that the relevant constitutional provision needs not create the power to institute criminal proceedings once it recognizes the existence of that right to so institute criminal proceedings. The expression “any other authority or person” used in Section 174 of the 1999 Constitution therefore logically recognizes any other authority or person with the right to prosecute or institute charges, subject of course to the power of the Attorney-General to take over and continue the proceedings at any stage. It is also equally important to note Section 299 of the 1999 Constitution where the Federal Capital Territory is treated as one of the States of the Federation. This section went on to set out the practical implication and functions of the three arms of Government and stated that the legislative power vests in the National Assembly, the Executive power, with the President and the Judicial Powers with the High Court of the Federal Capital Territory. I am of the considered view that the power to prosecute for offences committed within the Federal Capital Territory is exercisable by the Federal Republic of Nigeria through the Attorney-General of the Federation or any other Federal Government Agency vested with prosecutorial powers.”
CRIMINAL LAW AND PROCEDURE, PRACTICE AND PROCEDURE
CRIMINAL PROCEEDINGS – WHETHER BODIES EMPOWERED STATUTORILY TO PROSECUTE OFFENCES CAN INSTITUTE ACTIONS IN THE NAME OF THE FEDERAL REPUBLIC OF NIGERIA
“In Amaechi Vs. INEC & 2 ORS (2008) 5 NWLR (Pt.1080) 227 at 307, the Supreme Court, per Oguntade JSC held –
‘The EFCC is a statutory body created under the laws of Nigeria. Its duties include the investigation and prosecution of a class of criminal offences. In essence; once its investigation has shown prima facie that a person has committed a criminal offence, the duty of EFCC is to have such offender prosecuted in a court of law…’
There is nothing here that prevents the EFCC to prosecute such offender in the name of the Federal Republic of Nigeria. After all, by Section 1(2)(c) of the EFCC Act, the EFCC has the “responsibility of coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with Economic and Financial Crimes in Nigeria.” i.e. of the Federal Republic of Nigeria. In Nyame Vs. F.R.N (2010) 7 NWLR (Pt.1193) 344, the Supreme Court held at page 403 that –
“The Commission is the coordinating agency for the enforcement of the provisions of any other law or regulation or economic and financial crimes, including the criminal code and the penal Code. The Commission has the Power under Section 13(2) of the Act to prosecute offences so long as they are financial crimes.”
The Supreme Court did not say that in prosecuting the offenders, it cannot do so in the name of the Federal Republic of Nigeria. Again the case of Edo State Board Of Internal Revenue Vs. Unipetrol (Supra) did not lay down the law, that bodies empowered statutorily to prosecute offences, cannot do so in the name of the Federal Republic of Nigeria.”
CRIMINAL LAW AND PROCEDURE, ATTORNEY GENERAL, PRACTICE AND PROCEDURE
INSTITUTION OF CRIMINAL PROCEEDINGS – WHETHER THE ECONOMIC AND FINANCIAL CRIMES COMMISSION REQUIRES AUTHORIZATION FROM THE ATTORNEY GENERAL OF THE FEDERATION BEFORE INSTITUTING CRIMINAL PROCEEDINGS
“So, since the prosecution in the Federal Capital Abuja, is exercised by the Attorney-General of the Federation, the issue of his authorizing the exercise of the power by him, does not arise. Again, since the EFCC has been vested statutorily with prosecution powers, it does not need any authorization as such, to exercise the power, Section 227 of the Criminal Procedure Code notwithstanding, since it is in respect of prosecution in a State and not in the Federal Capital Territory, Abuja as in instant appeal. In Amaechi Vs. INEC (SUPRA) at page 307, the Supreme Court opined that –
‘”…I know of no provision of the law which enables EFCC upon the conclusion of investigation in a criminal case to send the report or case file to either the Federal or State Government.’
In other words, if the EFCC has no obligation to send a case file to the Federal Government, it can simply institute the prosecution of the offender, without the necessity of obtaining any authorization from the Attorney-General of the Federation since the prosecution is in the name of the Federal Republic of Nigeria. A charge drafted by the EFCC does not need to contain any information therein, that the authorization of the Attorney-General of the Federation had been obtained, since the authorization is not necessary – Amadi Vs. FRN (2008) 18 NWLR (Pt.1119) 259 at 276.”
LAW OF EVIDENCE, WORDS AND PHRASES
PRIMA FACIE CASE – WHAT CONSTITUTES A PRIMA FACIE CASE?
“A ‘prima facie’ case means that there is evidence available which if contradicted and if believed by the court, there will be sufficient evidence to convict the accused person. What the court does when deciding whether a prima facie case has been made out or not, is to examine the proof of evidence to see if it connects the accused person to the offence charged, to the extent that he will be required to proffer an explanation – ABACHA VS. STATE (2001) 3 NWLR (Pt.699) 35. So when a prima facie case is made, a presumption of guilt arises against the accused at that stage and it is then for him to rebut same by explanations – IGHO VS. STATE (1978) 3 S.C. 87. The trial judge herein considered the application, studied the proof of evidence in connection with the charges, proffered, and held that –
‘There exists a prima facie case sufficient to warrant the accused person to be charged and for the continuation of the proceedings and therefore the objection raised is unfounded and is accordingly dismissed.’”
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
PROOF OF OFFENCE – WHETHER AN OFFENCE CAN ONLY BE PROVED BY DIRECT EVIDENCE
“An offence does not have to be proved by direct evidence. It could be by circumstantial evidence. Furthermore, there is nothing before the court, showing that the said document is the only one that the prosecution would rely upon in proof of its case. Once there are other statements that link the appellant with the offences charged, that will suffice, as issue of proof of the offences, has not yet arisen at this stage.”
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999 as amended|Criminal Procedure Code|Economic and Financial Crimes Commission Act, 2004|Penal Code|