Federal Republic Of Nigeria V. Chief Joshua Cibi Dariye (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE F. OGBUINYA. J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision, ruling, of the Federal High Court, Kaduna, presided over by Hon. Justice A. M. Liman, delivered on 16th December, 2004 – striking out the name of the respondent from the charge against him and counts 1 and 2 of that charge.

Flowing from the processes filed, the facts leading to this appeal are straightforward. On 06/12/2004, the appellant, through a famous anti-graft agency, the Economic and Financial Crimes Commission, commenced criminal prosecution of the FHC/KD/144c/04. In counts 1 and 4 of it, which related to the respondent, he was charged with fraudulent presentation of a Central Bank Cheque for the sum of N1,161,162,900.00 billion in favour of Plateau State to the sixth respondent and dishonest misappropriation of the said sum of money contrary to section 3(2) of the Miscellaneous Offences Decree as amended by Tribunals Certain Consequential Amendments etc) Decree No.62 of 1999 and section 309 of the Penal Code respectively.

Before the court below, on 07/12/2004, the respondent, unlike others, did not take his plea to that charge. On that same day, 07/12/2004, the court took judicial notice of the fact that the respondent was the then Governor of Plateau State. It then, on the behest of the learned counsel for the appellants, issued criminal summons on him to appear and address him on his immunity under section 308 of the 1999 Constitution.

Subsequently, on 13/12/2004, the respondent, through his counsel, filed a preliminary objection wherein he prayed the court below to quash the charge against him and strike out his name from it. His ground was mainly that he was immune from prosecution on the basis of section 308 of the Constitution. The preliminary objection was argued and replied to on that same day – 13/12/2004.

On 16/12/2004, the learned trial Judge delivered a considered ruling in which it upheld the objection. Consequently, he struck out the name of the respondent and counts 1 and 2 relating to him from that charge. He, also, set aside the criminal summons earlier on issued against him (the respondent).

The appellant was aggrieved by that decision and it appealed against same to this court. It filed a two-ground notice of appeal on 28/12/2004. It later, via a motion on notice, filed an amended notice of appeal on 30/06/2005.

When the appeal came up for hearing on 19/01/2011, the learned counsel for the appellant, C. Okoroma Esq., applied to withdraw the charge against the second to the eight respondents. There was no objection to that application by S. Ibiwoye, Esq., learned counsel for the respondent. Consequently, the court struck out the names of the second to the eight respondents from the appeal. Thereafter, learned counsel for the appellant adopted the appellant’s brief of argument as representing his submissions in favour of the appeal. In the same vein, the learned counsel for the respondent, S. Ibiwoye, Esq., adopted the respondent’s brief of argument, filed on 25/09/2009, via a motion on notice, and deemed filed on 26/05/2010, as representing his submissions against the appeal.

In the appellant’s brief of argument, the appellant crafted a solitary issue for determination to wit:

“What is the purpose or purport of section 308(2) of the 1999 Constitution of the Federal Republic of Nigeria in relation to a person to whom section 308 of the 1999 Constitution when such a person is charged with a criminal offence? (This issue is covered by the two grounds of appeal).”

Contrariwise, in the respondent’s brief of argument, a different lone issue for determination was framed as follows:

“Whether the trial court rightly declined jurisdiction to entertain the charges against the 1st Respondent who as at the time he was arraigned was a sitting Governor of a State in Nigeria; having regard to the provisions of section 308 of the Constitution of the Federal Republic of Nigeria, 1999.”

I have situated the two issues formulated by the two sides of the duel in this appeal. They exhibit symmetrical feature of oneness in terms of substance. However, given the facts and arguments herein. I hold the view that the issue couched by the respondent is more apposite for the determination of this appeal.

On that singular issue, learned counsel for the appellant outlined the provision of section 308 of the Constitution and highlighted the substance of the offences with which the respondent was charged with in counts 1 and 4 of the charge, No. FHC/KD/144C/2004. He drew the court’s attention to the ruling of the court below – that the respondent was charged as a principal party, not as a nominal party, and that the charge could not stand having regard to section 308 of the Constitution. Learned counsel then, forcefully, submitted that the section did not make a distinction between a nominal party and a principal party. He referred to the Blacks Law Dictionary, 7th edition, wherein the word nominal was defined as “existing in name only”. He conceded that it was possible to have a nominal party in civil proceedings, but not possible in criminal proceeding the purpose of which was to administer punishment on persons convicted of a criminal offence. He added that except in public welfare offences, like public nuisance, no vicarious liability in criminal proceedings because of the absence of the actus reus and mens rea residing in the same person. He placed reliance on the English case of R. v. Huggins (1730)2 Ld. Rym 1574; 92 E.R. 518.