Federal Republic Of Nigeria V.senator Olawole Julius Adewunmi (2007)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C

This is an appeal against the decision of the Court of Appeal, Lagos Division delivered on 13th June, 2002.

For a clear understanding of the facts and circumstances giving rise to this case, I find it necessary to give the background history of the events culminating to this appeal. By a charge sheet dated 24th March, 1997 containing seventeen (18) counts, the appellant instituted this action before the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal sitting in Enugu. The charge sheet was signed by Mr. Emeka Ngige, a Private Legal Practitioner. Later, on the order of the Tribunal, the original charge sheet containing 18 counts was filed on the same day. It was also signed by Emeka Ngige, Esq.The trial of the respondent commenced at the tribunal on the said counts charges, but could not be completed before the coming into effect of the 1999 Constitution on the 29th of May, 1999. With the advent of civilian administration in 1999 Decree No. 18 of 1994, was repealed and Decree No. 62 of 1999 titled “Tribunals (Certain Consequential Amendments, etc) Decree 1999, which came into effect on 28th of May, 1999, was promulgated under which all matters pending before any Failed Banks Tribunal, were transferred to the Federal High Court or State High Court as the case may be.

Pursuant to the provisions of the said Decree No. 62 of 1999, the amended charge against the respondent was consequently transferred to the Federal High Court Lagos from the Enugu Failed Banks Tribunal for trial de novo. Accordingly, on the 27th of October 1999, the amended charge jointly signed by Mrs. M. O. Fatunde, a senior state counsel with the rank of Assistant Chief Legal Officer and Emeka Ngige, Esq., a private legal practitioner on behalf of the Hon. Attorney-General of the Federation was filed. It was accepted by the trial court and the counts on the charge sheet were read and explained to the respondent who pleaded not guilty to all of them.The respondent was on his application granted bail pending trial and the case adjourned to 17/11/99 for hearing and later to 29/3/2000 and finally to 19/4/2000 for definite trial on 19/4/2000. On the 18/4/2000, the respondent filed a summons on notice Supported by an affidavit praying the trial court to strike out the charge filed against him for want of jurisdiction on the grounds that the charge was not instituted in accordance with the due process of law and the requisite provisions of the Constitution. The summons was then heard by the trial court and in a considered ruling, the learned trial Judge Marden, J. held that the charge was regular, competent, valid and in accordance with the Constitution. He therefore had the jurisdiction to try the respondent on the charge. Dissatisfied with this ruling, the respondent appealed to the Court of Appeal which after hearing the appeal, allowed the appeal and struck out the charge against the respondent. It held that:-

” … The amended charge brought against the appellant (now respondent) on 28th October, 1999 constitutes a new charge and that the provisions of the 1999 Constitution apply to it and must be observed”.

This appeal is from that decision.In this court, parties filed and exchanged their respective briefs.

The appellant formulated two issues for the determination of this court which read:-

“(i) Was it not wrong of the Court of Appeal to hold that the amendment of the charge against the respondent after the commencement of the 1999 Constitution makes the amended charge a new one and the initiation of which was invalidated by the provisions of that Constitution;notwithstanding that the charge was unquestionably valid at the time of its filing in 1997.

If section 174 of the 1999 Constitution forbids the Attorney-General of the Federation from instructing a private legal practitioner to initiate criminal prosecution(s) as decided by the Court of Appeal, but not conceded by the appellant, has the signature of a state counsel on the amended charge not foreclosed any question about its validity regardless of whether or not it was countersigned by a private legal practitioner authorized by the Attorney-General to do so”

The respondent in his brief also adopted all the two issues raised by the appellant, which I shall consider in this appeal.

In the summons on notice dated 13/4/2000 and filed on 18/4/2000 in the trial Federal High Court, the respondent prayed the court for an order striking out the charge against the respondent for want of jurisdiction of the court to entertain the charge on the grounds that the charge was not instituted in accordance with due process of law and requisite constitutional provision. The summons was further explained by the affidavit in support in the following paragraphs:-

“4. That the charge instituted against the accused person/ applicant was signed on behalf of the Attorney-General of the Federation by Mr. Emeka Ngige Esq., a Private Legal Practitioner.

That I am informed by Chief Afe Babalola SAN who I verily believe that the Attorney-General cannot delegate his power to initiate criminal proceedings to a Private Legal Practitioner.

That I verily believe that Mr. Emeka Ngige lacked authority in law and in fact to sign on behalf of the Attorney-General of the Federation”.