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:
Whether the Court of Appeal was right not to have nullified the proceedings for want of jurisdiction (Grounds 1, 2 and 5)
- 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
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
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
statute is usually construed as “shall” which is mandatory and this is the observation which Karibi-Whyte JSC made in Adesola v. Abidoye (1999) 14 NWLR (Pt. 637) 28 at 56. See also: Ogualaji v. A.G. Rivers State (1997) 6 NWLR (Pt. 508) 209 at 233.
Learned counsel further contended that where the meaning of a word used in a statute is given in the definition Section of the Statute, that meaning must be adhered to by the Court in the construction of the provisions of the Statute. see: Shettima v. Goni (2011) 18 NWLR (Pt. 1279) 413 at 450; Uhunmwangho v. Okojie (1989) 12 SC 142 at 156; (1989) 5 NWLR (Pt. 122) 477; A.G. Federation v. A.G. Lagos (2013) 16 NWLR (Pt. 1380) 249 at 345-346. Attah v. State (1993) 7 NWLR (Pt. 305) 257. He submitted that since the Act specifically categorized EFCC as the relevant authority to which the BPE should recommend investigation under Section 53, the EFCC cannot on its own commence investigation or prosecution of any alleged breach of the Public Procurement Act without such recommendation by the Bureau of Public Procurement. Learned counsel urged this Court to nullify the proceedings as they relate to all the counts
brought under the Public Procurement Act, 2007 for failure of the prosecution to fulfill the condition precedent thereto and the usurpation of the sole responsibility of Bureau of Public Procurement by EFCC. If this is done argued learned counsel, there will be nothing left in the charge concerning the appellant except counts 78 and 79 which were brought under Sections 104, 390 and 390(5) of the Criminal Code. It is learned counsel’s submission that the fate which befell the counts under the Public Procurement Act will also befall count 78 brought under Section 104 of the Criminal Code because the offender cannot be arrested without a warrant and consent of a Law Officer must be obtained before any prosecution can be undertaken and in the instant case no warrant was obtained before the appellant was arrested and the necessary consent of a Law Officer has not been obtained before the prosecution of the appellant commenced.
On issue 2 which deals with whether the Court of Appeal was right to hold that the appellant has a case to answer, learned counsel referred to the ruling of the Court of Appeal on page 1071 of the records and
submitted that the evidence of pw1 which the lower Court relied on to hold that the appellant has a case to answer is hearsay evidence and therefore legally inadmissible. He maintained that the evidence required to establish a crime must be evidence of a witness who saw or heard or took part in the transaction upon which he was giving evidence and a Court can only act on evidence that is legally admissible. See: Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1; Odogwu v. State (2013) 14 NWLR (Pt. 1373) 74 at 108; Omega Bank (Nig). Plc v. O.B.C. Ltd (2005) 8 NWLR (Pt. 928) 547. He argued that PW1 (an EFCC operative) lacks the knowledge of procurement as he does not know the monetary threshold. It is only the Bureau of Public Procurement that can determine any breach of the Act. He said there is no scintilla of evidence to sustain counts 78 and 79 of the charge. He argued that prosecution alleged that NMEC under the headship of the appellant illegally operated two accounts with Wema Bank and Oceanic Bank without the authorization of the Accountant General of the Federation and noted that no Financial Regulation was produced by the prosecution in support of the allegation.
He went on to state that this in itself does not constitute a crime but that the prosecution criminally altered the minutes of the Director of Finance and Accounts as can be seen in Exhibit PW1AA (viii). He submitted that no person can be tried for an offence not stated in a written law and that the operation of accounts without the authorization of the Accountant-General of the Federation is at best a breach of the Financial Regulations which is not a law and therefore cannot warrant a criminal prosecution having regard to Section 36(12) of the 1999 Constitution. He urged this Court to resolve the two issues in favour of the appellant for the following reasons:
(i) The Court of Appeal misconceived the case presented by the appellant by taking irrelevant matters into account and thereby occasioned a miscarriage of justice.
(ii) The issue of jurisdiction can never be defeated in any legal proceeding.
(iii) The entire proceedings are a nullity ab initio.
Learned counsel for the respondent submitted that the ruling on the consolidated preliminary objections dated 26 November,2012 was thorough and conclusive on the issue of jurisdiction which was again
raised in the No Case Submission. Consequently the trial Court considered all the issues brought before her including the preconditions envisaged under Section 53(1) and 58 of the Public Procurement Act 2007 as raised by the 5th and 10th accused and ruled upon. He argued that the trial High Court and the lower Court had to exercise extreme caution in their respective rulings in order not to delve into the merits and substance of the case. He contended that the trial Court having assumed jurisdiction became functus officio and so did not have to revisit issues already dealt with as ruled by the Court of Appeal and before the issue of jurisdiction could be raised before this Court, or any other Court, leave of Court must first be obtained before raising it. He therefore urged this Court to uphold the concurrent findings of the two lower Courts on the issues under consideration and order the appellant to return to the trial Court to enter his defence. Learned counsel relied on Nyame v. FRN (2010) 17 NWLR (pt. 1193) 344. He submitted that where issues have been raised and conclusively dealt with by the Court, the same cannot be raised afresh
before the same Court as this will amount to abuse of Court process even if it is on jurisdiction. The only course opened to the appellant was to have appealed against the ruling of 26 November, 2012.
Learned counsel contends that the provisions of the Public Procurement Act 2007 do not confer on the Bureau of Public Procurement (BPP) or any other body created under the law powers to conduct criminal investigation or to prosecute criminal cases resulting from procurement processes. It is only the EFCC that can swing into action without reference to any other agency (between EFFC and BPP) in the event of a direct complaint of procurement crime brought to it or which is disclosed in the course of any investigation. He argued that going by the decision in Nyame’s case, the EFCC has power to coordinate, investigate and prosecute cases under the Criminal Code and the Penal Code Laws and is not bound by administrative niceties like obtaining consent to proceed against an accused person as is being canvassed by the appellant in respect of counts 78 and 79. He urged this Court to dismiss the appeal and order the appellant to go to the trial Court to re-commence the case afresh because
the learned trial Judge E. S. Chukwu J. is now deceased.
On issue no 2 learned counsel disagreed with the appellant’s submission that PW1’s evidence is hearsay. He referred to Section 126 Evidence Act and submitted that PW1 testified on the conduct of the investigation while PW6 testified as an expert in procurement matters and following the decision in Utteh v. State (1992) 2 SCNJ (Pt. 1) 183, the evidence given by a witness concerning a statement made to him by a person who is not himself called as a witness, may or may not be hearsay. It is hearsay and inadmissible if the witness reporting it intends thereby to establish that such statement is true, but it will not be hearsay and therefore admissible if the witness proposes not to establish its truth but to show merely that such statement was made and any evidence of an investigating police officer about what he saw and observed is not hearsay. See: Ekpo v. State (2001) 7 NWLR (Pt. 712) 292. He therefore urged this Court to uphold the decision of the Court of Appeal.
In the consideration of the issues argued in this appeal, it is necessary to bear in mind that what the
the appellant is urging this Court to do, is to reverse the decisions of the two lower Courts and to substitute therewith a ruling that, at the close of the prosecution’s case, no prima facie case was made out against the appellant and to discharge the appellant under Section 286 Criminal Procedure Act Cap. C41 Laws of the Federation 2004 which states as follows:
“If at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence the Court shall, as to that particular charge, discharge him”.
Such a discharge is tantamount to an acquittal for which a plea of autrefois acquit can successfully be raised to forestall a future prosecution. See: Nwali v. Inspector-General of Police (1956) 1 NLR 1; Inspector-General of Police v. Marke (1957) 2 FSC 5. The same scenario played out in Mohammed v. State (2007) 7 NWLR (Pt. 1032) 152. Since the prosecution called its witnesses, this Court should be guided by the following considerations namely:-
(a) whether there is no evidence to prove an essential element of the alleged offence; See: Agbo v. State (2013) 11 NWLR (Pt. 1365) 377.<br< p=””</br<
(b) whether the evidence adduced by the prosecution witnesses has been so discredited as a result of cross-examination, or is manifestly unreliable, that no reasonable tribunal could safely convict on it. See: Ajidagba v. Inspector-General of Police (1958) SCNLR 50.
I have examined the evidence adduced by the prosecution, most of which is documentary. I am of the considered view that the Prosecution has made out a prima facie case against the appellant which requires an explanation.
The argument that the EFCC should not be allowed to breach the procedure stipulated under the Act does not hold any water whatsoever. Section 53(1) of the Public Procurement Act is merely directory and in carrying out its investigative functions, the EFCC is under no obligation to obey directives from any person or organisation. Section 5 of the Economic and Financial Crimes Commission (Establishment) Act Cap E1 Laws of the Federation of Nigeria 2004 sets out the functions of the Commission. Some of the functions provided in Section 5(1)(a) (b) (c) (e) (f) (h) (k) and (l) are as follows:
“5(1) The Commission shall be responsible for
(a) the enforcement and due administration of the provision of this Act.
(b) the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge, fraudulent and encashment of negotiable instruments, computer credit card fraud, contract scam etc.
(c) the co-ordination and enforcement of all economic and financial crimes laws and enforcement functions conferred on any other person or authority;
(e) the adoption of measures to eradicate the commission of economic and financial crimes
(f) the adoption of measures which include co-ordinated preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related crimes;
(h) the examination and investigation of all reported cases of economic and financial crimes with a view to identify individuals, corporate bodies or groups involved.
(k) taking charge, supervising, controlling, co-ordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes,
in consultation with the Attorney General of the Federation.
(l) the co-ordinating of all existing economic and financial crimes investigating units in Nigeria”.
Sections 53(1) and 58(3) of the Public Procurement Act stipulate thus:
’53(1) The Bureau may review and recommend for investigation by any relevant authority any matter related to the conduct of procurement proceedings by a procuring entity, or the conclusion or operation of a procurement contract if it considers that a criminal investigation is necessary or desirable to prevent or detect a contravention of this Act.
58(3) Prosecution of offences under this Act shall be instituted in the name of the Federal Republic of Nigeria by the Attorney-General of the Federation or such other officer of the Federal Ministry of Justice as he may authorise so to do, and in addition’ without prejudice to the Constitution of the Federal Republic of Nigeria, he may:
(a) after consultation with the Attorney-General of any State of the Federation, authorise the Attorney-General or any other officer of the Ministry of Justice of that State; or
(b) if the relevant authority so request, authorise
any legal practitioner in Nigeria to undertake such prosecution directly or assist therein”.
In exercise of the powers conferred on him by Section 174 the Constitution, the Attorney-General of the Federation can 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 Act of the National Assembly. He may also take over and continue any such criminal proceedings that may have been instituted by any other authority or person. He also has the power to enter nolle prosequi, at any stage before judgement is delivered, any such criminal proceedings instituted or undertaken by him or any other authority or Person.
Where the EFCC exercises its power under Section 5(1)(k) of the EFCC (Establishment) Act, nobody has a right to question whether it obtained the necessary fiat from the Attorney-General of the Federation before embarking on the prosecution. The submission by the learned counsel for the respondent that the provisions of the Public Procurement Act 2007 do not confer on the Bureau of Public Procurement (BPP) or any other
body created under that law powers to conduct criminal investigation or to prosecute criminal cases resulting from procurement processes is well taken. The Attorney General of the Federation or the EFCC have the power to undertake such criminal prosecutions with the former having the upper hand in taking over the prosecution and continuing or discontinuing with the prosecution by entering a nolle prosequi. See:Pharma Deko Plc v. N.S.I.T.F.M.B (2011) 5 NWLR (Pt. 1241) 431: F. R. N. v. Adewunmi (2007) 10 NWLR (Pt. 1042) 399; Nyame v. F. R. N. (2007) 7 NWLR (Pt. 1193) 344. Nyame v. F. R. N. supra confirmed the powers granted to the EFCC in Section 5(1)(k) of the EFCC Act 2004 to co-ordinate, investigate and prosecute cases under the Criminal Code and the Penal Code Laws. It is not necessary for the EFFC to seek consent from the Bureau of Public Procurement or Attorney General of the Federation before it can proceed to investigate or prosecute the appellant under counts 78 and 79.
Despite the enactment of the Administration of the Criminal Justice Act 2015 that provides for objection to be taken along with the substantive case to make for speedy trial of cases,
learned counsel have continued to bog down the Courts (both the trial and appellate Courts) with interlocutory appeals with the sole purpose of stultifying and truncating such trials.
It is about time that such practice is taken to be a professional misconduct and the appropriate disciplinary sanctions invoked against such legal practitioners.
This appeal lacks merit and it is hereby dismissed. The appropriate order would have been for the accused/appellant to enter his defence before the trial Judge but in the course of hearing this appeal it was reported that the trial Judge, Chukwu J. is now deceased. Consequently the case is remitted to the Chief Judge of the Federal High Court for re-assignment to another Judge who has to commence trial de novo of the accused/appellant.
It is consequently ordered that any objection regarding jurisdiction or any other objection should be heard along with the substantive case. Appeal is accordingly dismissed.