CORAM

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Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Chioma Egondu Nwosu-Iheme Justice of the Supreme Court of Nigeria

Moore Aseimo Abraham Adumein Justice of the Supreme Court of Nigeria

Stephen Jonah Adah Justice of the Supreme Court of Nigeria

Jamilu Yammama Tukur Justice of the Supreme Court of Nigeria

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PARTIES

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OPDC PROPERTIES LIMITED V THE PEOPLE OF LAGOS STATE & ORS

APPELLANTS 

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1. THE PEOPLE OF LAGOS STATE

2. NDI OKEREKE-ONYUIKE

3. MINING SYSTEM LIMITED

4. MR. LANCE ELAKAMA

5. CREATIVE FINANCIAL SERVICES LTD

6. OAK BUSINESS AND FINANCE COMPANY LTD

RESPONDENTS 

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AREA(S) OF LAW

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CONSTITUTIONAL LAW, CRIMINAL PROCEDURE, ATTORNEY-GENERAL’S POWERS, JURISDICTION, POLICE INVESTIGATION, FAIR HEARING, PRELIMINARY OBJECTION, ADMINISTRATION OF CRIMINAL JUSTICE, STATUTORY INTERPRETATION

 

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SUMMARY OF FACTS

The case arose from criminal charges filed by the Lagos State Director of Public Prosecution (DPP) on May 23, 2011, in the Lagos State High Court against OPDC Properties Limited (the appellant) and five other defendants in Charge No. LCD/157/2011. The charges consisted of eight counts relating to conspiracy to commit stealing and stealing contrary to Sections 516 and 390(7) of the Criminal Code of Lagos State, involving alleged theft of various sums totaling over N1.5 billion from the Nigerian Stock Exchange. The defendants included Ndi Okereke-Onyuike and Lance Elakama (officers of the Nigerian Stock Exchange), Mining Systems Limited, Creative Financial Services Ltd, and Oak Business and Finance Company Ltd. The defendants failed to appear for arraignment and instead filed a Notice of Preliminary Objection on July 19, 2011, challenging the trial court’s jurisdiction on grounds including bad faith, harassment, and abuse of court process. This objection was subsequently withdrawn. On September 29, 2011, the defendants filed another Notice of Preliminary Objection challenging the court’s jurisdiction on grounds that: (1) no prima facie case was disclosed; (2) no investigation was conducted; (3) defendants were not confronted with allegations; (4) the charges were filed in bad faith; and (5) the charges violated existing court orders. The trial court dismissed the preliminary objection, holding that the Attorney-General’s statutory duty to prosecute could not be denied even if there were alleged violations of court orders. The appellant appealed to the Court of Appeal, which dismissed the appeal on June 3, 2013, affirming the trial court’s jurisdiction and ordering the appellant to present herself for arraignment. The appellant then appealed to the Supreme Court.

 

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HELD

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1. The appeal was dismissed.

2. The Court held that the absence of police investigation before filing criminal charges is not fatal to the validity and competence of the charge filed by the Attorney-General.

3. The Court affirmed that the Attorney-General has constitutional power under Section 211 of the 1999 Constitution to institute criminal proceedings against any person reasonably believed to have committed a crime.

4. The Court held that challenges to charges based on non-investigation or inconclusive investigation cannot be raised prior to the close of the prosecution’s case under Section 260(2) of the Administration of Criminal Justice Law of Lagos State.

5. The Court found that Section 211(3) of the Constitution, requiring the Attorney-General to “have regard to public interest, the interest of justice and the need to prevent abuse of legal process,” creates a discretionary obligation, not a condition precedent.

6. The Court affirmed the judgment of the Court of Appeal delivered on June 3, 2013.

 

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ISSUES

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1. Considering the circumstances and facts of this particular case and the nature of the charge filed, whether the absence of Police investigation before the filing of the charge is not fatal to the validity and competence of the charge.

2. Whether the lower Court was not wrong in affirming the jurisdiction of the Court to entertain a charge in the absence of any prior investigation or conclusive investigation that involved taking representation from the Appellant qua accused person and defendant?

3. Whether the Court of Appeal’s restrictive interpretation and application of the doctrine of fair hearing is justifiable in the light of the peculiar facts, nature and stage of proceedings in this case?

4. In view of the incorrect appreciation of the facts of this case by the lower Court, whether its judgment is not liable to be set aside as perverse.

 

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RATIONES DECIDENDI

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ATTORNEY-GENERAL’S CONSTITUTIONAL POWER TO PROSECUTE – SCOPE AND NATURE

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The Attorney-General of the State by virtue of the provision of Section 211 of the 1999 Constitution (supra), is endowed with far-reaching powers to initiate criminal prosecution against any person(s) whom he reasonably believes to have committed a crime.” – Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

 

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POLICE INVESTIGATION NOT CONDITION PRECEDENT – DISCRETIONARY NATURE

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There is no law in Nigeria today which makes Police investigation of any person a condition precedent to laying a charge before the Court against the person who is reasonably suspected of having committed an offence… The Nigerian Police has the discretion to investigate or not to investigate an allegation of commission of a crime and that Police investigation is not a sine qua non in criminal proceedings.– Per STEPHEN JONAH ADAH, J.S.C.

 

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SECTION 211(3) CONSTITUTION – DISCRETIONARY NOT MANDATORY OBLIGATION

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In my considered view-point, the provisions of Section 211(3) of the 1999 Constitution, as amended (supra), do not envisage the situation where the Court peremptorily stops the prosecution proceedings of an accused person, and commence an enquiry into the Accused person’s complaint challenging the prosecution, as a condition precedent to the prosecution thereof… all that the phrase ‘shall have regard to’, as couched in Section 211(3) of the 1999 Constitution (supra) contemplates is for something to be done by the Attorney-General of a State within the purview of the unfettered powers conferred thereupon… the expression ‘shall have regard to’ comes within the purview of principles and practice interpretation of statutes as a permissive expression which imports a discretion not create a condition precedent.– Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

 

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FUNDAMENTAL NATURE OF JURISDICTION – CONSTITUTIONAL AND PROCEDURAL DISTINCTION

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There are two basic types of jurisdiction: (i) Jurisdiction as a matter of substantive law; and (ii) Jurisdiction as a matter of procedural law. With particular regard to jurisdiction as to substantive law, it is one that’s predicated upon the Constitution, law or common law. Thus, this type of statute based jurisdiction can neither be waived nor conferred upon the Court by the parties. Contrariwise, however, a procedural jurisdiction can be waived; a litigant voluntarily submits thereto. – Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

 

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PREMATURE OBJECTION TO SUFFICIENCY OF EVIDENCE – STATUTORY PROHIBITION

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Section 260 (2) of the Administration of Criminal Justice Law of Lagos State, 2007 provides that: ‘an objection to the sufficiency of evidence disclosed in the proof of evidence attached to the information, shall not be raised before the close of the prosecution’s case.’… By the clear and straightforward provisions of Section 260(2) of the Administration of Criminal Justice Law of Lagos State, the purported preliminary objection raised by the appellant and other defendants, in the trial Court, was avoidable and premature as it was filed when the prosecution had not even tendered any evidence in the case, not to talk of the prosecution having closed its case. – Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

 

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CONSTITUTIONAL INTERPRETATION – BROAD VS NARROW CONSTRUCTION

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This Court has an onerous duty always, when declaring and interpreting the provisions of the Constitution, to bear in mind that the Constitution itself is a mechanism under which laws are to be made by the legislature and not merely an Act which declares what the law is. Thus, where the question is whether the Constitution used an expression in the wider or narrow sense, the Court must always lean where the justice of the case so demands to the broader interpretation, unless (of course) there is something in the context or in the rest of the provisions of the Constitution to show that the narrower interpretation would best serve the object and intendment. – Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

 

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PRIMA FACIE CASE DETERMINATION – ATTORNEY-GENERAL’S DISCRETION

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The law is well settled that the issue of competence to institute a criminal action in a Court of law is fundamental. Thus, where it’s established that the authority or person is devoid of competence to institute a criminal action, the entire trial or proceeding embarked upon by the Court is rendered a nullity, void and of no effect whatsoever… In the instant case, the issue of whether or not a prima facie case had been made out could not rightly be said to have arisen.– Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

 

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CRIMINAL TRIAL COMMENCEMENT – REQUIREMENT FOR ARRAIGNMENT

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Trial in a criminal case is said to commence with arraignment which in turn consists of the charging of the accused or reading over the charge to the accused and taking his plea thereon… This appeal is another classical example of a defendant deliberately employing delaying tactics to frustrate the prosecution of a criminal accusation against her/him. Without appearing in the trial Court, the Appellant and her co-defendants raised a preliminary objection against a charge or an information filed against. – Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

 

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STATUTORY COMPLIANCE – PRESCRIBED PROCEDURE REQUIREMENT

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The law is also settled that where a certain procedure is provided by a law or statute, it is that procedure only which must be followed and complied with… Now, it is the law that where a statute provides for a particular method of performing a duty regulated by the statute, that method, and no other, must have to be adopted. – Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

 

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ATTORNEY-GENERAL’S PROSECUTORIAL AUTHORITY – CONSTITUTIONAL MANDATE

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By Section 211 of the 1999 Constitution, the Attorney General of a State is in charge of public prosecutions. The Attorney General of a State has been endowed with the power to among others, institute and undertake criminal proceedings against any person suspected to have committed any offence created by or under any law of the House of Assembly. The only collateral duty imposed on the Attorney General is expressly stated in Section 211(3) to the effect that in exercising his power 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 STEPHEN JONAH ADAH, J.S.C.

 

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CONSEQUENCE OF LACK OF INVESTIGATION – EVIDENTIARY NOT JURISDICTIONAL

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Investigation of a crime is what generates evidence for effective prosecution of an offender. If there is no investigation and by that, there is no credible evidence to prove the crime beyond reasonable doubt, it is the prosecution that will suffer the loss to the gain of the person charged. – Per STEPHEN JONAH ADAH, J.S.C.

 

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JURISDICTION AS FUNDAMENTAL REQUIREMENT – DUTY TO RAISE

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The issue of jurisdiction of a Court is most fundamental. Thus, it can be raised at any stage of proceeding by the parties, or even suo motu by the Court itself. That is the reason why it’s desirable that preliminary objection should be raised early regarding issue of jurisdiction. However, once it’s so apparent to any of the respective parties that the Court is devoid of jurisdiction, it can be raised even viva voce. – Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

 

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APPELLATE COURT’S LIMITED INTERFERENCE – STANDARD FOR REVERSAL

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It’s a well settled doctrine, that an appeal Court would not interfere with or reverse a decision of a trial Court or the Court below, unless such a decision is considered erroneous in law, unreasonable, or perverse… In this Court, we only sit to review the justices’ decisions on points of law, being bound by the fact which they find, provided always that there is evidence on which the justices can come to the conclusions of fact, at which they arrive.– Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)

2. Criminal Code of Lagos State, Cap C17, Vol. 2 Laws of Lagos State 2003

3. Administration of Criminal Justice Law of Lagos State, 2007

4. Police Act, Cap. 19 Laws of the Federation of Nigeria, 2004

 

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