Dr Dayo Olagunju V. Federal Republic Of Nigeria (2018)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The genesis of this appeal stems from the ruling of the Federal High Court, Abuja presided over by Chukwu J. delivered on 7 November, 2014 in Charge No. FHC/ABJ/CR/177/2009 in which he overruled several “No Case Submissions” made by learned counsel for the appellant and six others standing trial in an amended 79 count charge for fraud and embezzlement of public funds. The trial Judge had earlier ruled on 26 November, 2012 on the consolidated preliminary objections on the issue of jurisdiction.

The appellant appealed against the ruling to the Court of Appeal, Abuja which delivered its judgment on 8 December, 2015 upholding the ruling of the learned trial Judge and dismissing the appeal. The lower Court ordered the appellant to proceed to enter his defence. The appellant felt dissatisfied with the judgment of the Court below and further appealed to this Court. The Notice of Appeal containing 5 grounds of appeal is dated 15 December, 2015. Mr. Oluwole Aladedoye, learned counsel for the appellant distilled two issues for determination.

The issues are:

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Whether the Court of Appeal was right not to have nullified the proceedings for want of jurisdiction (Grounds 1, 2 and 5)

2. Whether the Court of Appeal rightly held that the appellant has a case to answer (Grounds 3 and 4).Mr.E.O. Chur, learned counsel who settled the brief of the respondent also formulated two issues for determination as follows:

(a) Whether the Court of Appeal was right in holding that the trial Court was functus officio on the issue of jurisdiction as raised by the appellant (Grounds 1, 2 and 5).

(b) Whether the Court of Appeal was right in affirming the decision of the trial Court that appellant should enter his defence (Grounds 3 and 4).Learned counsel for the appellant submitted that the evidence of the prosecution witnesses has nothing to do with embezzlement or misappropriation of funds but breaches of the Public Procurement Act, 2007 as alleged by the EFCC. He submitted that a body such as EFCC which seeks to enforce the procedure contained in the Public Procurement Act, 2007 ought not be allowed to breach the procedure stipulated under the Act and the appellant had raised objection to the competence

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of the charge on the ground that a condition precedent to the exercise of its jurisdiction has not been fulfilled namely:

That it was only the Attorney-General of the Federation who had powers to prosecute the appellant having regard to Section 58(3) of the Public Procurement Act, 2007. Since the respondent decided to charge the appellant under the Public Procurement Act, it is bound by the provisions of that Act. Reliance for this submission was placed on Ezeadukwa v. Maduka (1997) 8 NWLR (Pt. 578) 635 at 657. He argued that under Section 3 of the Public Procurement Act, it is the Bureau of Public Procurement that has the sole authority to review and determine whether any procuring entity has violated any provision of the Public Procurement Act. He submitted that where the law confers on a statutory body, such as the BPP, the sole power of reviewing and determining whether any procurement entity has violated any provision of the Act, no other body can usurp such powers. This submission, learned counsel argued, finds support in Emuze v. V. C. University of Benin (2003) 10 NWLR Pt. (828) 378 at 407 – 402 per Iguh JSC. Learned counsel faulted the interpretation which

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the Court of Appeal gave to Section 53 (1) of the Public Procurement Act and contended that this interpretation has defeated the purpose of the Act as it conferred on the EFCC powers it doesn’t have and divested the Bureau of Public Procurement the statutory powers granted it under Sections 5 and 6 of the Act. He went on to state that the marginal notes to Sections of the Act is a good guide to knowing the intention of the law makers, citing O.S.I.E.C v. A. C. (2010) 17 NWLR (Pt. 1226) 273 which relied on the judgment of Eso JSC in Oloye v. Alegbe (1983) 2 SCNLR 35 at 57 where it was opined that marginal notes are useful in considering the purpose of a section and the mischief at which it is aimed. He argued that if the Court of Appeal had taken into consideration the purport of the word “shall” in Sections 5(a) and (6) of the Act, its interpretation of Section 53 would have been different and relied on the following cases in support: State v. Olatunji (2003) 14 NWLR (Pt. 839) 138 at 159 and N.P.A. Plc v. Lotus Plastics Ltd (2005) 19 NWLR (Pt. 959) 158 at 199.

He maintained that where there is need to perform a public duty, the word “may” appearing in the