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Ibrahim Shehu Shema & Ors V. Federal Republic Of Nigeria (2018)

LAWGLOBAL HUB Lead Judgment Report

SIDI DAUDA BAGE, J.S.C.

We are this morning constituted as a Court to determine preliminary issues, by way of interlocutory appeal, from the judgment of Court of Appeal sitting in Kaduna, dated 12th day September, 2017, which affirmed the decision of the Katsina State High Court delivered on 21st February, 2017, which dismissed the Appellants’ Motion on Notice dated 3rd day of January, 2017 and filed on 4th day of January, 2017 seeking to (i) declare the filing of the charge sheet by EFCC as incompetent on constitutional grounds and (ii) declare as inchoate the entire proceedings as the charge sheet was not accompanied by proof of evidence as known to law thereby dislodging the Appellants’ right to fair hearing as recognised by Section 36(6) (b) of the 1999 Constitution as amended.

The trial Court’s decision refusing and dismissing the Appellants’ application for lack of merit can be found at pages 34 – 47 of the records; while the decision of the lower Court affirming the decision of the trial Court can be found at pages 291 – 340 of the records.

Being dissatisfied with the decision of the lower

Court, the Appellants filed four separate but identical notices and grounds of Appeal on the 21st of September, 2017 against the judgement in the Registry of Court below containing ten (10) grounds. The identical notices of appeal are contained on pages 341- 404 of the record. The Appellants’ Joint Brief of Argument was subsequently filed on 18th October, 2017 while the Respondent’s Brief is dated 24th October, 2017, and the Appellants’ Joint Reply Brief dated 30th October, 2017.

SUMMARY OF FACTS:

On the 16th December 2016, by a 22-count charge, Appellants were alleged to have committed sundry corruption and financial crime related offences, such as conspiracy, criminal breach of trust, forgery, aiding and abetting contrary to relevant provisions of the Penal Code Law of Katsina State. Consequently, charges were filed against the Accused Persons/Appellants before the Katsina State High Court, pursuant to Section 185 (a) Criminal Procedure Code Law, CAP 37, Laws of Katsina State, 1991 and for offences in the Penal Code.

The charges were filed by the Economic and Financial Crimes Commission (hereinafter called “EFCC”) on the

authorization of the Hon. Attorney General of Katsina State, upon the issuance of a fiat by the said Hon. Attorney General of Katsina State pursuant to Section 211 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

On being served with the charges and prior to arraignment, Appellant filed an application dated 3rd day of January, 2017 and filed on 4th day of January, 2017 as contained at pages 48-90 of the records. The application was seeking to terminate the proceedings on the ground, among others that the EFCC cannot initiate the criminal proceedings against them in the name of the Federal Republic of Nigeria (hereinafter called “F’RN”), and that the EFCC has no power to prosecute a state offences, (even with the fiat of the Attorney General of Katsina State). The Appellants also contended that the prosecution did not furnish them with all the documents necessary for their defence of the case. For these and other reasons, the Appellant challenged the jurisdiction of the trial Court to hear and entertain the charges.

Parts of the reliefs sought in the application forming basis of this appeal, are:

“(1) An order terminating the instant proceedings

i.e. charge no: KTH/34C/2016 FRN VS IBRAHIM SHEHU SHEMA AND 3 OTHERS because the offences alleged against the Applicants are offences cognizable and punishable under the Penal Code Cap 96 Laws of Katsina State and are therefore not FEDERAL OFFENCES which the Federal Republic of Nigeria or any of her Agencies particularly the Economic and Financial Crimes Commission can prosecute.

(2) AN ORDER of this Honourable Court quashing and/or striking out the instant Charge No. KTH/34C/2016 between FRN VS IBRAHIM SHEHU SHEMA & 3 ORS, dated and filed on the 16th of December 2016 because being State offences cognizable and punishable under the Penal Code Cap 96 Laws of Katsina State, they can only be instituted by the Attorney-General of Katsina State in the name of Katsina State or the Commissioner of Police.”

ALTERNATIVELY

“(1) An Order directing the Prosecutor to furnish the Defence with all documents inclusive of all the statements made by the Defendants, statements made by all the witnesses, Police Investigation Reports, Statements of Bank Accounts in compliance with Section 84 of the Evidence Act, and every other document relevant to prosecution of this matter.

(2) An Order staying further hearing of these proceedings until the Order of this Honourable Court granting the Defendants leave to access all documentary evidence to be relied on by the Prosecution in the instant trial is obeyed and or complied with.

(3) AN ORDER dispensing with the physical appearance and arraignment of 1st – 4th Appellants/Applicants in the instant Charge No: KTH/34C/2016 between FRN VS IBRAHIM SHEHU SHEMA & 3 ORS during and pending the determination of this Motion on Notice.

AND FOR SUCH FURTHER ORDER/ORDERS as this Honourable Court may deem fit to make in the circumstances.”

In a ruling delivered on 21st January, 2017, the learned trial Judge, after considering the respective submissions of Counsel to the parties, dismissed the Appellants’ objection and affirmed its jurisdiction to hear the charges.

Dissatisfied with the above ruling, the Appellants filed 4 identical notices of appeal containing 5 similar grounds each to the Court of Appeal. The said notices and grounds of appeal are contained at Pages 168 – 199 of the record of appeal.

The lower Court heard the Appellants’ appeal on the 15th day of June, 2017 and delivered its ruling on the 12th September, 2017. In its ruling, the lower Court held inter alia, that the appeal is frivolous, vexatious and devoid of any merit.

The Court below specially held that the Attorney General of Katsina State has the powers to invite EFCC (an agency of the Federal Government) to prosecute the case.

Still being unhappy with the ruling of the lower Court, the Appellants filed 4 identical Notices of Appeal and formulated 10 grounds. The Appellants specifically canvassed that, because part of the decision of the Court of Appeal emphasized the existence of Supreme Court decisions on the issue of the power of the EFCC to prosecute under the Penal Code in the name of the Federal Republic of Nigeria, the Appellants sought to invoke the power of the Supreme Court of Nigeria to depart from its previous decision(s) by overruling itself. The Notices of Appeal are contained at pages 341-404 of the records of appeal.

ISSUES FOR DETERMINATION:

At page 14 of their Brief of Arguments dated 17th October, 2017 and filed on 18th October, 2017, the

Appellants formulated three issues for the determination of this appeal, thus:

“(1) Whether contrary to the resolution of the Court below, the issues formulated by the Appellants in the Court below, did not arise from the grounds of appeal and the facts in the printed record, and whether such a finding did not prejudice the mind of the said Court below when it held that Appellants were not entitled to the documents requested from the Prosecution until after plea had been taken and by so holding made out a new case for the Respondent (ISSUE NO 1) (GROUNDS 1 AND 9).

(2) Whether the Kaduna Division of the Court of Appeal was right when it affirmed the decision of the Katsina State High Court that the Attorney-General of Katsina State has the powers to invite EFCC (an agency of the Federal Government) to prosecute the Appellants in the name of the Federal Republic of Nigeria before the Katsina State High Court for offences allegedly committed under the Penal Code Cap 96 Laws of Katsina State (Issue No. 2) (Grounds 3, 4, 5 and 6 of the identical notices appeal).

(3) Whether the Kaduna Division of the Court of Appeal was right when it affirmed the decision of the

Kastina State High Court that the non-availability of all the documents i.e. statements of accused persons and all witnesses, investigation reports, bank statements and other documents by the prosecution to the accused persons did not breach the provisions of Section 36-(6) – (b) of the 1999 Constitution (Issue No 3) (Grounds 7, 8 and 10 of the identical notices of appeal).”

On its part, the Respondent also formulated three issues for determination at page 6 of its Respondents Brief dated and filed 24th October, 2017, thus:

“(1) Having regard to the grounds of appeal and the facts in the printed record, whether the Court of Appeal was not right in its approach of formulating and/or reformulating relevant issues for determination submitted by parties, after holding that the Appellants issue was incompetent and whether same has occasioned any bias and/or miscarriage of justice in the entire circumstance of the appeal (Grounds 1 and 9 in the identical notices of appeal).

(2) Whether having regard to the provisions of relevant laws and judicial authorities especially Section 211 Constitution of the Federal Republic of Nigeria, the

lower Court was not right when it upheld the decision of the Katsina State High Court that the EFCC as a common agency for both Federal and State economic and financial crimes, is empowered to initiate criminal proceedings and file charge No. KTH/34C/2016 before the Katsina State High Court for offences in the Penal Code Law, Cap 96, Laws of Katsina State, with or without the Attorney General’s authorization (Grounds 2, 3, 4, 5 and 6).

(3) Whether having regard to the peculiar circumstances of the case leading to the appeal, the lower Court was not right to have upheld the decision of the trial Court that the charge (No. KTH/34C/16) and the proof of evidence thereof are competent and not in breach of Section 36 (6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (Grounds 7, 8 and 10).”

The issues formulated by the parties are similar in some respect. I have considered the issues formulated on behalf of the parties some of which overlap, resulting in seemingly repetitious arguments and submissions. The justice of this appeal demands that I narrow down the main issues as precisely as possible

with clarity to ensure a judicious, effective and proper determination of the issues in contention between the parties in this interlocutory appeal. Given this background, I am persuaded that issues 2 of both the Appellants and Respondent and issue 3 of the Respondents are the main issues in this appeal, and I have adopted same with modification thus:

“(1) Whether the lower Court was right when it upheld the decision of the Katsina State High Court that the EFCC as a common agency for both Federal and State Economic and Financial Crimes, is empowered to initiate criminal proceedings and file charge No. KTH/34C/2016 before the Katsina State High Court for offences in the Penal Code Law, Cap 96, Laws of Katsina State, with the Attorney General’s authorization.

(2) Whether having regard to the circumstances of the case leading to this appeal, the lower Court was not right to have upheld the decision of the trial Court that the charge (No. KTH/34C/16) and the proof of evidence thereof are competent and not in breach of Section 36 (6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999”

CONSIDERATION AND RESOLUTION OF RELEVANT ISSUES:

RESOLUTION OF PRELIMINARY POINTS

Two preliminary issues have been raised by the Appellants and Respondent. By way of a Motion on Notice dated 24th October, 2017, the Respondent has prayed this Court to strike out issue 3 of the Appellants’ Brief of argument for being incompetent. In support of this position, the learned Senior Counsel for the Respondent contented that issue 3 was formulated from virus invested grounds, having derived from a non-existing “ground 10”. Counsel submitted that an issue cannot arise from a non-existing ground and liable to be struck-out, citing the case of OKETADE VS ADEWUNMI (2010) 8 NWLR Pt. 1195, at 63, GLOBE FISHING IND. LTD VS. COKER (1990) 7 NWLR Pt. 162, at 265.

In sum, the learned Counsel urged this Counsel to strike out issue 3 formulated by the Appellants.

In their response to the Motion as contained in pages 3-4 of the Appellants’ Joint Reply Brief dated 30th October, 2017, the Appellants contended that it is long settled that cases are not decided on technicalities, citing the case of ADEKEYE VS AKIN-OLUGBADE (1987) 3 NWLR Pt. 60, at 214 and urged this Court to dismiss the said motion/preliminary objection.

The above issue I is crucial to the resolution of the main issues in this interlocutory appeal. The necessary question is what is the nature or purport of the Appellants’ issue 3 that the Respondent earnestly desired to have same struck-out. Issue 3 of the Appellants qualifies as a “mega issue” due to its nature. The Appellants’ issue 3 in contention reads:

“Whether having regard to the peculiar circumstances of the case leading to the appeal, the lower Court was not right to have upheld the decision of the trial Court that the charge (No. KTH/34C/16) and the proof of evidence thereof are competent and not in breach of Section 36 (6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (Grounds 7, 8 and 10).”

Having taken a careful look at issue 3 and the arguments for and against same by the Respondent and the Appellants, I am of the view that the Appellants’ issue 3 is incompetent having not derived from cognisable ground of Appeal. The law is trite that an issue must be distilled or distillable from a ground of appeal. This is not the case here. In this circumstance, I take a cue from the decision of

this Court in AKEREDOLU VS. MIMIKO & 2 ORS (2013) 12 SCM (pt.2) 135 at 154, and hold that issue 3 is incompetent and same is hereby struck-out.

I also wish to state, by way of further elucidation, that the Court is bound to consider an issue once formulated by the parties. The Court is not however expected to be a “slave” to the litigants and their Counsel by adopting whatever issues formulated hook, line and sinker irrespective of illogicality of such issues. The duty of Court is to consider all the issues, and where appropriate collapse, integrate, harmonise, extend, increase or generally structure and restructure such number of issues as are crucial to effectively and effectually determine the issues in the appeal or matter as the case may be to ensure that justice is done.

In this circumstance, this Court has given deep thoughts to ALL the issues and ARGUMENTS canvassed by the Appellants and the Respondent in all three different briefs filed in respect of this interlocutory appeal, namely the Appellants’ Joint Brief of Argument, the Respondent’s Brief of Argument and the Appellant Joint Reply Brief. Some of the issues overlap and/or are interwoven.

It is not possible for a Court to formulate issues on every shade of opinions or arguments canvassed by the parties in a case or appeal. It is in view of the foregoing that I have limited myself to two main issues in this interlocutory appeal. All other ancillary arguments and issues are duly considered within the confines of the two main issues formulated from the issues respectively formulated by the parties, for the purpose of determining this crucial interlocutory appeal of national significance.

RESOLUTION OF ISSUE 1:

“Whether the lower Court was right when it upheld the decision of the Katsina State High Court that the EFCC as a common agency for both Federal and State economic and financial crimes, is empowered to initiate criminal proceedings and file charge No. KTH/34C/2016 before the Katsina State High Court for offences in the Penal Code Law, Cap 96, Laws of Katsina State, with the Attorney General’s authorization.”

The thrust of the contention of the Appellants in this interlocutory appeal, is best summarised as unwillingness to allow the agent of the Respondent, the EFCC, prosecute the Appellants for the allegations

levied against them. This contention is anchored on the issue two of the Appellants’ Brief of Argument. As stated above, issue one formulated by the Appellants has not been of much assistance to us in pursuit of our sole objective of justice, beyond technicalities and deployment of dilatory advocacy skills.

We note that, in their arguments on the issue as formulated for the purpose of this appeal, which is similar to issue two formulated by the Appellants, it is contended that the Court below saw nothing wrong with the initiation of the 22-count charge by the EFCC on the basis that the Attorney-General of the State is not the only person empowered under Section 211 of the CFRN (as amended) to institute criminal charges in a Court of law. This is because, the Appellants contend, the law recognizes that where any other person or body of persons is empowered under other enactments to initiate and commence criminal proceedings, such a person or body of persons could competently commence such proceedings in the High Court.

The Appellants contended further that, the position of the Court below was erroneous on the ground that the Court based the validity of the charges preferred

against the Appellants on the provision of Section 211 of the 1999 Constitution of the Federal Republic of Nigeria. The learned Senior Counsel to the Appellants contended that, the Court below was wrong not to have recognised that the powers of Federal and State authorities were kept in strict water-tight compartments by the provisions of Sections 174(1)-(3) and 211(1)-(3) of the 1999 Constitution.

The learned senior Counsel pointed out that the territorial jurisdiction in criminal matters is determined by the statute creating it. Counsel cited the case of NITEL PLC VS AWALA (2002) 3 NWLR (Pt.753) 1 at 12, para E and submitted that the proper prosecuting party in a criminal trial depends on whether the offence was created by the State Government or by the Federal Government. He contended further that the delegation to EFCC by the Attorney-General of Katsina State can only be construed as being tantamount to Katsina State surrendering its ‘independence or sovereignty’ to the Federal Government of Nigeria.

On the supposition that Nigeria is a Federation and that the Constitution does not permit a Federal Agency to

invade a state by way of the so-called powers to prosecute, the learned Senior Counsel to the Appellants cited and quoted extensively from the decision of the lower Court in the case of SUNDAY OLOYEDE VS THE STATE (2013) LPELR- 22215 (CA).

The learned Senior Counsel observed that, to arrive at its decision, the lower Court had relied on the cases of DARIYE VS FRN (2015) 10 NWLR Pt. 1461 PAGE 325 at 352-354 and NYAME VS FRN (2010) 7 NWLR Pt.1193 PAGE 394 and the case of JINADU VS FRN (2015) LPELR – 24381 (CA) and KALU VS FRN (2016) LPELR- SC.215/2012. However, the learned Appellants’ Counsel contended that those cases could be distinguished from the instant appeal to the extent that they are completely outside the scope and purview of the prosecutorial powers of the EFCC. Counsel reasoned that Section 13(2) of the EFCC only allows its legal and prosecution unit to prosecute offenders for offences committed under the Act. Counsel contended that the Penal and Criminal Codes are not Federal enactments but State laws. Moreover, the Appellants were specifically charged under the provisions of Cap 96 Laws of Katsina State.

The learned Appellants’ Counsel submitted in the

alternative that should this Court be minded to apply the decision in DARIYE and NYAME (Supra) for the purpose of interpreting Section 13(2) of the EFCC Act, then, this Court is being invited by Counsel to do two things; modify its previous position and depart from the decisions (rations) in the two cases. To drive home its position on the need to overrule ourselves and depart from our previous decisions, the Appellants relied on, and quoted extensively from the case of BUCKNOR-MACLEANS VS INLAKS LTD (1980) 8-11 SC, per Idigbe JSC (as he then was); TEWOGBADE VS OBADINA (1994) 4 SCNJ 161, per Iguh JSC, (as he then was).

In sum, the learned Senior Counsel to the Appellants respectfully urged this Court to depart from the cases of DARIYE and NYAME (supra) as they suggest that the EFCC can prosecute in State Court offences allegedly committed under the Penal and Criminal Code of a State, and to resolve this issue one (same as issue 2 in the Appellants’ Brief of Arguments) in favour of the Appellants.

On its part, the Respondent argued in respect of this issue that, the Appellants have taken the burden of Katsina State government on themselves, crying

about “sovereignty” of Katsina State. The position of the Respondent is informed by the fact that Katsina State that donated the power has not complained of a breach of its sovereignty. The learned Counsel submitted further that the powers vested in the Attorney General pursuant to Section 211 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is not subject to review by any Court of law. To support this view, the learned Senior Counsel relied on the case of STATE VS ILORI (1983) Vol. 14 NSCC Pt. 69 at 75; GEORGE VS FRN (2011) 10 NWLR (Pt.1254) 1 at 68, and further argued that any exercise of the powers of the Attorney General is presumed to have been rightly and regularly done until the contrary is proved, relying on Section 150(1) Evidence Act, 2011; OGBUANYINYA VS OKUDO (1990) 7 SC Pt. 1, 66; TIMOTHY VS FRN (2008) All FWLR (Pt. 402) 1136; ADEBAYO vs. THE STATE (2012) LPELR-9464-CA.

The parties are ad-idem that the basis of the appeal is the propriety or otherwise of the Attorney-General of Katsina State in donating its power to the EFCC, an agency Respondent to file charges against the Appellants pursuant to Section 211 of the Constitution

I begin by setting the law straight, by quoting verbatim, the exact provision of the Constitution, which states thus:

“211. (1) The Attorney General of a State shall have power:

(a) to 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 law of the House of Assembly:

(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

(c) to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

(2) The Powers conferred upon the Attorney-General of a state under Subsection 1 of this section may be exercised by him in person or through officers of his department.

(3) In exercising his powers under this Section, the Attorney-General of a State shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”

It is common knowledge that, to ensure speedy disposal of criminal cases, the Attorneys-General of the

the States do delegate their powers to the various State Commissioners of Police who institute and prosecute criminal matters in the name of the State as Commissioners of Police. Such powers are also delegated to other agencies such as the Federal Board of Internal Revenue, Nigeria Customs Service, National Drug Law Enforcement Agency (NDLEA) and lately EFCC by the Attorney-General of the Federation. This arrangement is made possible subject to the provisions of Section 174 (1)(b) (c) and 211(1)(b)(c) of the Constitution of the Federal Republic of Nigeria 1999 in respect of the powers of the Attorney-General of the Federation or State respectively.

Nigerians have now internalised the reality of the challenges facing the country in the area of anti-corruption and related financial crimes. Our country people, agencies and institutions are now, or must now be, at home with the shift in the paradigm of impunity to recognise that both the case law and statute provisions recognise the fact that, indeed, the law empowers the EFCC to institute a case in the name of the Attorney General of the Federation, Federal

Republic of Nigeria and not necessarily in its name only, and that it can so institute in any Court, State or Federal. This Court has held in several instances that the EFCC is a statutory body created under the laws of Nigeria to investigate and prosecute a class of criminal offences.

To further buttress my position on this issue, I wish to reiterate the well settled position of this Court in the case. See NYAME VS. F.R.N. (2010) 7 NWLR (pt.1193) 344.

In this case, this Court indicated, and very clearly, that there is nothing here that prevents the EFCC from prosecuting offenders in the name of the “Federal Republic of Nigeria” being the agency responsible for co-coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with Economic and financial crimes in the Federal Republic of Nigeria by virtue of Section 1(2)(c) of the EFCC Act.

The effect of our clear and ambiguous stance in NYAME VS F.R.N.(supra) and which we have no reason to depart from, is that the commission (the EFCC) is the co-coordinating agency for the enforcement of the provisions of any other law or regulation on economic

and financial crimes, including the criminal code and the penal code. The Commission has the power under Section 13(2) of the Act to prosecute offences so long as they are financial crimes. I have not seen what substantial miscarriage of justice the Appellants have suffered by the EFCC prosecuting them for those offences under the name of Federal Republic of Nigeria for crimes they have allegedly committed under Penal Code Law, Cap 96, Laws of Katsina State.

To further amplify that legal authorities clearly support the stand of the trial judge and lower Court, that the EFCC can institute a case in the name of the Attorney-General of the Federation, and not necessarily in its name only, I refer to the case of AMAECHI V. INEC & 2 ORS (2008) 5 NWLR (Pt.080) 221 at 307, this Court, per Oguntade JSC held –

“The EFCC is a statutory body created under the laws of Nigeria. Its duties include the investigation and prosecution of a class of criminal offences. In essence; once its investigation has shown prima facie that a person has committed a criminal offence, the duty of EFCC is to have such offender prosecuted in a Court of law…”

There is nothing here that prevents the EFCC from prosecuting such offender in the name of the Federal Republic of Nigeria. After all, by Section 1(2)(c) of the EFCC Act, the EFCC has the “responsibility of coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with Economic and Financial Crimes in Nigeria,” i.e. of the Federal Republic of Nigeria. In NYAME VS. F.R.N.(2010) 7 NWLR (Pt.1193) 344, this Court held at page 403 that: –

“The Commission is the coordinating agency for the enforcement of the provisions of any other law or regulation or economic and financial crimes, including the criminal code and the penal Code. The Commission has the Power under Section 13(2) of the Act to prosecute offences so long as they are financial crimes.”

I need to add, at this stage, by re-echoing the voice of this Court Per NGWUTA, J.S.C. (P. 32, paras. E-G) (DARIYE VS FRN) that, institution of proceeding against any person before any Court in Nigeria other than a Court Martial is not the exclusive prerogative of the Attorney-General of the Federation and/or his counterpart in the State. S.174 (1)(b) and (c) and

S.211(1)(b) and (c). This becomes more compelling given the provisions of the Act.

I will take a few minutes to quote extensively from the specific provisions of the EFCC Act, to justify the position of this Court that there are several agencies, bodies and institutions, beyond the Attorney-General of the Federation and/or his counterpart in the State, with powers to prosecute specific offences.

“7. (1) That the Commission has power to-

(a) cause investigations to be conducted as to whether any person, corporate body or organisation has committed an offence under this Act or other law relating to economic and financial crimes; and

(b) cause investigations to be conducted into the properties of any person if it appears to the Commission that the person’s life style and extent of the properties are not justified by his source of income.

(2) in addition to the powers conferred on the Commission by this Act, the Commission shall be the coordinating agency is charged with the responsibility of enforcing the provisions of-

“(a) the Money Laundering Act 2004; 2003 No. 7. 1995 1995; No. 13

(b) the Advance Fee Fraud and Other Fraud Related

Offences Act 1995;

(d) the Banks and other Financial Institutions Act 1991, as amended; and

(e) Miscellaneous Offences Act; and

(f) any other law or regulations relating to economic and financial crimes including the Criminal Code and Penal Code.

“13. (1) The General and Assets Investigation Unit shall be charged with responsibilities for-

(a) the prevention and detection of offences in violation of the provisions of this Act;

(b) the arrest and apprehension of economic and financial crime perpetrators;

(d) the identification and tracing of proceeds and properties involved in any offence under this Act and the forfeiture of such proceeds and properties to the Federal Government; and

(e) dealing with matters connected with extradition and mutual assistance in criminal matters involving economic and financial offences.

(2) The Legal and Prosecution Unit shall be charged with responsibility for-<br< p=””

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(a) prosecuting offenders under this Act;

(b) Supporting the General and Assets Investigation Unit by providing the Unit with legal advice and assistance, whenever it is required;

(c) conducting such proceedings as may be necessary towards the recovery of any assets or property forfeited under this Act and

9 performing such other legal duties as the Commission may refer to it from time to time

(3) There shall be appointed for each of the units a principal officer who shall be known by such designation as the Commission may determine.

Clearly, it is absolutely impossible to agree less, that the above quoted provisions of the Economic and Financial Crimes Commission (Establishment) Act Cap. El, LFN, Vol. 5, 2004 empowers the prosecutors in Legal and Prosecution Unit of the EFCC to prosecute any person who commits any of the offences that the Commission is empowered to prosecute under the Act. The lower Court was therefore, right in my view to have applied the law correctly when it held that the powers and duties of the EFCC as stated under Section 13 (2) allows the Legal and Prosecution Unit of the Commission to prosecute offenders under the Act.

Without prevarications, Section 7 (2) (f) empowered the EFCC to enforce any law or regulations relating to Economic and Financial Crimes, including the Penal Code.

It is not in contention that:

“(1) the Attorney-General of Katsina State has donated a fiat to the Respondent’s agency (the EFCC) to prosecute the Appellants pursuant to Section 211 of the Constitution;

(2) by Section 7 (1) the Commission has power to cause investigations to be conducted as to whether any person, corporate body or organisation has committed an offence under the Act or other law relating to economic and financial crimes:

(3) by Section 7(2)(f), in addition to the powers conferred on the Commission by the Act, the Commission shall be the co-ordinating agency charged with the responsibility of enforcing the provisions of (f) any other law or regulations relating to economic and financial crimes including the Criminal Code and Penal Code;

(4) by the provisions of 13 (2) the Legal and Prosecution Unit shall be charged with responsibility for prosecuting the offenders.”

With those key points, the regime of anti-corruption

law in Nigeria is meant to be symbiotically applied, implemented and given effect by both Federal and State agencies. There is much wisdom in so doing. There is a national revolt by all concerned against corruption and financial crimes, at all levels of the Courts – including ours as the Supreme Court of the land. Indigenous philosophies of Nigerians support this symbiotic, multi-institutional, pronged-approach to the war against corruption and financial infelicities, more appropriately called financial crimes.

As between EFCC Act and Penal Code, or between Federal Government of Nigeria and Katsina State of Nigeria, what matters most, and justifiably so, is that corruption and financial crimes be tracked, investigated, prosecuted and punished. The age-old indigenous view in Southwest (and perhaps in other parts of Nigeria) is that the “Snake of financial crime” be not allowed to escape on account of gender sentiments. It matters not if the ‘monstrous snake’ of corruption and financial crimes biting Nigeria is killed by a man or women; all that matters is the death of the ‘deadly snakes’ of corrupt practices and financial hooliganism daily killing Nigeria and Nigerians.

At this stage, the guilt of the Appellants is not yet established. This matter is yet to be tried but has only travelled the long, tortious journey of interlocutory appeal to prove or test the law. That is why we must, as a Court of law of last resort, set the law straight. It is the intention of the makers of the law, that the EFCC prosecutes financial crimes. To the extent that a State has not, for the time being, established equivalent agency like the EFCC for dealing with Economic and Financial Crimes Commission at the State level, the powers of the EFCC remains extant. This is because the EFCC is vested with powers to co-ordinate and enforce related provisions in the Penal Code – which provisions do not violate any known Law of Katsina State.

The law on the hierarchy of laws in Nigeria, is as stated by Kalgo JSC (as he then was) in ATTORNEY GENERAL, ABIA STATE VS. ATTORNEY GENERAL, FEDERATION (2002) 6 NWLR (Pt. 763) 264 at PAGES 479-480:

“The Constitution is what is called the grundnorm and the fundamental law of the land. All other legislations in the land take their hierarchy from the provisions of the Constitution.

By the provisions of the Constitution, the laws made by the National Assembly come next to the Constitution, followed by those made by the House of Assembly of a State.”

Thus, the lower Court was right when it held at page 310 of the record of appeal thus: “Further, the argument that the Criminal Procedure Code Law of Katsina State does not provide for or accommodate the power of the Economic and Financial Crimes Commission to institute criminal proceedings in the High Court of Katsina State by filing of Information cannot change this position. This is because it will mean that the Criminal Procedure Code Law of Katsina State is in obvious conflict with the Economic and Financial Crimes Commission (Establishment) Act.”

To the extent of the above provisions of the law, it is our considered view that the lower Court applied the law correctly. The law evinces a clear intention that, with or without express delegation from the Attorney General of Katsina State, the EFCC could validly prefer the present charges and prosecute the Appellants in the name of the Federal Republic of Nigeria as a common agency of both the Attorney General of the Federation

and Attorney General of Katsina State. We agree with the Respondent that a community reading of provisions of Sections 15(5) and 211 (1)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Sections 6(m), 7(f), 13(2)(a) and (d) and 46 of the EFCC (Establishment) Act, 2004 and Section 185(a) of the Criminal Procedure Code (CPC), Cap 37, Laws of Katsina State, 1991 gives the EFCC power to do what it sought to do by attempting to prosecute the Appellants.

In view of the foregoing, issue one is resolved in favour of the Respondent, and we hold that the Economic and Financial Crimes Commission possesses the power to institute the present criminal proceedings against the Appellants in the High Court of Katsina State by filing of Information.

RESOLUTION OF ISSUE 2:

“Whether having regard to the circumstances of the case leading to this appeal, the lower Court was not right to have upheld the decision of the trial Court that the charge (No. KTH/34C/16) and the proof of evidence thereof are competent and not in breach of Section 36 (6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999”

The main contention of the Appellants on this issue is that they were not availed of the Prosecution’s documents to be used in proof of its case such as statements of Accused persons, statements of witnesses and every other documentary evidence to be used by the prosecution and that such lapse or breach amounted to a breach of their rights as guaranteed by Section 36(6)(b) of the 1999 Constitution.

The learned Senior Counsel to the Appellants submitted emphatically, that the Court of Appeal was wrong when it held that the Appellants were not entitled to the documents requested from the Prosecution until after plea had been taken and by so holding made out a new case for the Respondent. Counsel pointed out the perceived offensive part of the ruling of the lower Court as contained at page 321-322 of the records, where his lordship Abiru JCA held as follows:

“Section 36 (6) (b) only comes to play after charges have been preferred and the accused person has pleaded to the charge preferred, and even then, it is not automatic and has to be applied for. Therefore, the non-service, and even the non-provision, of the ‘facilities’ for defence along with the proofs of

evidence accompanying a charge cannot constitute an omission and it cannot make the proofs of evidence incomplete or inchoate and in breach of Section 36 (6) (b) of the Constitution. There is nothing in Section 36 (6) (b) of the 1999 Constitution that can invalidate a charge preferred against an accused person. The proofs of evidence served on the Appellants, along with the charge, met the requirements of the law. It is settled law that the purpose of serving proofs of evidence on an accused person is to give him the opportunity of knowing what the prosecution witnesses are coming to Court to say against him – EDE VS. THE STATE (1977) 1 FCA 95, ABACHA VS. THE STATE (2002) 11 NWLR (pt. 779) 437…”

On the basis of the foregoing, the learned Senior Counsel to the Appellants urged this Court to resolve this issue in favour of the Appellants, and to hold that they were not availed of the Prosecution’s documents to be used in proof of its case contrary to Section 36(6)(b) of the 1999 Constitution.

The Appellants further contended that the ruling of the trial Judge, which was upheld by the lower Court, stemmed from the misconception that the proof of

evidence annexed to the charge. He contended that the trial Court was in error of law, and which error was wrongly upheld at the lower Court. On this basis, the Appellants urged us to resolve issue two in its favour.

The Respondent debunked the Appellants’ arguments as totally misconceived. According to the learned Senior Counsel for the Respondent, the decision of the lower Court that the charge filed against the Appellants, along with the proofs of evidence, is competent was based on sound reasoning and this Court has no business tampering with it. The learned Senior Counsel to the Respondent contended that the charge sheet served on the Appellants had attached to it a proof of evidence which had the names and addresses of the witnesses; the summary of the evidence the Witnesses would give; and of course the list of exhibits to be tendered as contained at pages 8 – 22 of the records. Counsel insisted that no other facilities are required for the Appellants to know and anticipate the charges against them.

The learned Senior Counsel to the Respondent contended further that the Courts have interpreted the phrase “be given adequate facilities for the

preparation of his defence” in Section 36 6(b) to mean that a person charged with an offence is entitled on demand to be given anything that would assist him in preparing his defence to the charge, including the statements of the prosecution witnesses and his own written statements. To buttress its position, the Respondent cited the cases of OKOYE VS COMMISSIONER OF POLICE (2015) LPELR-24675(SC), AKABOGU VS THE STATE (2016) LPELR-40929 (CA), NWEKE VS THE STATE (2017) LPELR-42103(SC), IBRAHIM VS STATE (2017) LPELR SC 652/2013.

The Respondent submits further that the lower Court was on sound legal footing when it affirmed the decision of the trial Court that there were enough facilities available for the defence to defend themselves and that the proof of evidence was competent and not in breach of Section 36(6)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended).

In conclusion, the learned Senior Counsel to the Respondent submitted that that the charge No. KTH/34c/2016 and the proofs of evidence thereof are competent and in total compliance with the requirements of the applicable law. The learned Senior

Counsel asserted that the decision of the lower Court cannot be faulted if carefully perused by this Court, and urged the Court to resolve this issue in favour of the Respondent.

In resolving this issue, it is pertinent to reproduce the provisions of Section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides:

“Every person who is charged with a criminal offence shall be entitled to:

(a) Be informed promptly in the language he understands and in detail of the nature of the offence;

(b) Be given adequate time and facilities for the preparation of his defence…”

To all intent and purposes, the phrase “be given adequate facilities for the preparation of his defence” in the above provision is general and open-ended. It is meant to ensure that the accused person or persons receive necessary hints, aid and assistance necessary that would assist him in preparing his defence to the charge, including the statements of the prosecution witnesses and his own written statements. See OKOYE VS COMMISSIONER OF POLICE (supra), AKABOGU VS THE STATE (supra); IBRAHIM VS STATE (supra).

In this appeal, it is obvious that what the Appellants

seek is to “be given adequate time and facilities for the preparation of his defence”, which would appear to have been made available by way of proofs of evidence which had the names and addresses of the witnesses; the summary of the evidence the witnesses would give; and the list of exhibits to be tendered as contained, all which are contained in pages 8 – 22 of the records. Clearly, what the Appellants desire, I think inappropriately, to be availed with the primary documents the prosecution would tender in evidence in the charge and/or provide them a complete proof of evidence containing the said primary documents. Our attention is drawn to paragraphs 15 and 19(i), (ii) and (iii) of the affidavit in support of the Appellants’ Motion (at pages 53 and 54 of the records of appeal), which forms the basis of this appeal. Their grouse in the said motion is that the Respondent has not served actual documents, not just the copies thereof, which the prosecution intends to rely upon at the trial.

It is my candid view that the lower Court did justice to this issue when it affirmed the decision of the trial Court that non-availability or provision of all

the documents i.e. statements of accused persons and all witnesses, investigation reports, bank statements and other documents by the prosecution to the accused persons did not breach the provisions of Section 36(6) (b) of the 1999 Constitution. This is because the application was premature. As at the time of the Appellants’ application before the trial Court leading to this appeal was brought, the Appellants had not taken their plea to the charge which made the application to be premature and untenable.

Finally, on this point, I wish to restate the fact that the intention of Section 36 (6)(a) and (b) of the 1999 Constitution (as amended) is to give an accused person the opportunity to know the case against him and to prepare and be heard on his defence. Therefore, I hold that the 22 count charge, the proof of evidence, list of Exhibits, list of witnesses with their addresses that accompany charge No. KTH/34C/2016 are competent and in sufficient compliance with the requirements of Section 36(6)(a) and (b) of the 1999 Constitution (as amended). In sum, issue two is resolved in favour of the Appellants.

I need to make one final point before concluding

this ruling by responding specifically to the request made on this Court by the Appellants to depart from its previous decisions. Put differently, the Appellants have laboured to persuade this Court to depart from its previous decision in DARIYE vs. F.R.N. (supra) and NYAME VS. F.R.N. (supra). However, Appellants failed to state or demonstrate any cogent reason, ground or situation justifying a departure from the aforementioned decisions of this Court. This Court may, and could in justifiable cases, depart or overrule its previous decisions under certain identifiable circumstances and in accordance with the laid down principles of law. The Supreme Court could depart from its previous decisions where it is shown or demonstrated that the earlier decisions are either erroneous in law; reached per incuriam or occasioning a miscarriage of justice. In the instant case, the Appellant invited the Supreme Court to overrule its previous decisions on the interpretation that Section 7(1), (2) and Section 13(2) of the EFCC Act which provide the EFCC with the powers and right to prosecute under the Penal and Criminal Codes of States in the State High Court.

It needs to be said clearly, and for the avoidance of misconceptions of the principle or basis of the rule on departing from previous decisions, that this Court does not indulge in the practice of departing from its previous decisions to suit the whims and caprices of the litigants, but to sustain the ends of justice. The Supreme Court has never, and may that day never be dawn, when it will depart from its previous decisions merely because the decision(s) is and/or are against the case presented by the parties.

In this interlocutory appeal, the Appellants have not shown or demonstrated that the above decisions of the Supreme Court in DARIYE VS F.R.N. (supra) and NYAME VS F.R.N. (supra) complained of are erroneous in law or given per incuriam or contrary to public policy thereby occasioning miscarriage of justice. That is not the case here. Quite frankly, if there is anything in those two cases, they affirm and seek vehemently to implement and apply the public policy against corruption and financial crimes, what I described above as ‘deadly snakes’ of corrupt practices and financial hooliganism daily killing Nigeria and Nigerians.

Therefore, the ‘unholy’ invitation of the Appellants to depart from those decisions of this Court for the sole benefit of twisting this appeal in their favour is hereby refused as baseless, and unjustifiable. Ours is to look beyond the sometimes deceptive, woolly persuasions of all Counsel, and this should be the position in all cases and appeals, to ensure that justice is not only done, but manifestly seen by all and sundry to have been done.

Having resolved the two issues formulated in this appeal against the Appellants and in favour of the Respondent, it necessarily means this appeal is unmeritorious. Therefore, I rule and declare that this appeal lacks merit and is accordingly dismissed.

I affirm the judgment of the lower Court.

That will be the judgment of this Court.

SC.814/2017

Ibrahim Shehu Shema & Ors V. Federal Republic Of Nigeria (2018) LLJR-SC

Ibrahim Shehu Shema & Ors V. Federal Republic Of Nigeria (2018)

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