Federal Republic Of Nigeria V. Abuh Daniel (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment)

The appellant charged the respondent before the Federal High Court, Lokoja Judicial Division (“the trial court” for short) as follows:

“That you … On 19/3/2013 at about 10:00am at Ganaja Village in Lokoja Local Government Area of Kogi State without lawful authority or an appropriate license loaded one Big storex plastic tank containing some quantity of petroleum product suspected to be crude oil and one plastic bucket with some quantity of petroleum suspected to be crude oil inside your pick-up van QINQI with registration number KPA-77XA with intents to import, sell and distribute or otherwise and thereby committed an offence contrary to and punishable under Sections 17(a) and (b) Miscellaneous Offences Act, CAP M17 LFN 2004”.

The charge was signed by “T. E. OTEME ESQ O/C Legal and prosecutions the Nigerian Police State CID, Lokoja”.

On the 10/6/2013, the trial court suo motu raised an issue as to whether the Police have the power to prosecute cases of oil pipe-line vandalization and called for addresses from both sides. After taking the addresses, the trial court ruled as follows:

“I hold that upon the scrutiny of the provisions of Section 3(1) (f) (vi) of the NSCDC Act (as amended) it is the NSCDC that is given the express authority to investigate offence of oil pipeline vandalization and to initiate proceedings thereto on behalf of the Attorney – General of the Federation … This proceeding instituted by the Nigeria Police is therefore ultra vires the authority of the Nigeria Police and is therefore incompetent being that the prosecutor is not the competent person in law to initiate it”.

Dissatisfied with the ruling and order of the trial court striking out the case, and discharging the respondent, the appellant has appealed to this court by means of a notice of appeal bearing four grounds of appeal.

Out of the four grounds of appeal, the appellant in its brief of argument settled by Nwodibo Ekechukwu, Esq; decocted one issue for the determination of the appeal. The issue is as follows:

“Whether the learned trial judge was right when he struck out the appellant’s charge filed against the respondent and accordingly discharge (sic) him?”

(sic).

Inspite of being served with the processes of court including the appellant’s brief, the respondent did not respond. Consequently, this court on 21/10/2014 granted the appellant’s application for the appeal to be heard on the appellant’s brief of argument alone.

It must be mentioned that the failure of the respondent to file a brief does not mean that the appeal will automatically succeed. This is because the appellant must succeed on the strength of his appeal and not on the failure of the respondent to file a brief. See UNITY BANK PLC V. BOUARI (2008) 7 NWLR (1086) 372, 403.

Counsel for the appellant C. I. Okpoko, Esq (Assistant Director, Federal Ministry of Justice) adopted his brief of argument when this appeal came up for hearing on 16/4/2015. He urged the court to allow the appeal.

Arguing his sole issue, appellant’s counsel submitted that a police officer has power to initiate criminal proceeding in any court in Nigeria by virtue of the provision of Section 23 of the Police Act Cap M19, Laws of the Federation of Nigeria as was affirmed by the Supreme Court in FEDERAL GOVERNMENT (SIC; REPUBLIC) OF NIGERIA V. OSAHON (2006) 5 NWLR (973) 361. He noted that the respondent was charged under S. 17 (a) and (b) of the Miscellaneous Offences Act Cap M17 LFN 2004 which is not related to the offence of vandalization of oil pipelines under Section 3 (1) (f) (vi) of the Nigeria Security and Civil Defence Corps Act raised by the trial court.