Joshua Durodola Alao V. Federal Republic Of Nigeria (2018)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKAAHS, J.S.C.

This is a sister appeal with SC.991/2015 – Dr. Dayo Olagunju v. Federal Republic of Nigeria. The judgment in that appeal was delivered a short while ago. This appeal is being handled by the same Counsel. The appellant’s brief was filed on 29/12/2015 while the respondent’s brief filed on 6/10/2016 was deemed filed on 23/2/2017.

The Federal High Court presided over by Chukwu J. delivered a ruling in charge No.FHC/ABJ/CR/177/2009 on 7 November, 2014 overruling several No Case Submissions made by learned counsel for the appellant and six others standing trial in an amended 79 count charge for 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 as the prosecution had called its witnesses and closed

1

its case after overruling the no case. He felt dissatisfied with the judgment of the Court below and so appealed to this Court on a Notice of Appeal dated 15 December, 2015 which contained 5 grounds of appeal. Mr. Oluwole Aladedoye, learned counsel for the appellant distilled two issues for determination as follows:-

1. Whether the Court of Appeal was right not to have nullified the proceedings for want of jurisdiction (Grounds 1, 2, 3, 4, 5).
2. Whether the Court of Appeal rightly held that the appellant has a case to answer (Ground 6).

Mr. E. O. Chur, learned counsel who settled the respondent’s brief also formulated two issues for determination which I reproduce as follows:-

(a) Whether the Court of Appeal was right in holding that the trial Court was functus officio in the issue of jurisdiction as raised by the appellant. (Grounds 1, 2, 3, 4, and 5)

(b) Whether the Court of Appeal was right in affirming the decision of the trial Court that a prima facie case had been made out against the appellant, and calling on him to enter his defence (Ground 6).

The arguments which learned counsel for the appellant canvassed on Issue 1 is that a condition precedent

2

was not fulfilled before the appellant was arraigned in Court. That condition which is spelt out in Section 53 (1) of the Public Procurement Act, 2007 is that the Bureau of Public Procurement will have to review the conduct of the proceedings and recommend investigation to be conducted before any person is charged under the PPA Act and even then it is the Attorney – General of the Federation that has powers to prosecute the appellant by virtue of Section 58 (3) of the Act. He therefore submitted that the EFCC which seeks to enforce the procedure contained in the PPA Act, 2007 should not be allowed to breach the procedure stipulated under the said Act in enforcing its provision since the EFCC is bound by the Act and relied on Ezeadukwa v. Maduka (1997) 8 NWLR (Pt. 518) at 657. He argued that where the law confers on a statutory body, such as the BPP, the sole power of reviewing and determining whether any procuring entity has violated any provision of the Act no other body can usurp such powers. Reliance for this submission was placed on Emuze v. V. C. University of Benin (2003) 10 NWLR (Pt.828) 378. He went on to submit that the act of review which is

3

qualified by the word “may” in Section 53 of the Act has been made mandatory by the use of the word “shall” in Sections 5 and 6 of the Act since the performance of public duty is being envisaged – See: Adesola v. Abidoye (1999) 14 NWLR (Pt.637) 28 at 56 per Karibi – Whyte JSC. He urged this Court to nullify the proceeding as it relates to all the counts brought under the PPA Act 2007 for failure of the prosecution to fulfill the condition precedent thereto and the usurpation of the sole responsibility of BPP by the EFCC. If this is done, the same fate will befall counts 78 and 79 which were brought under Sections 104, 390 and 390 (5) of the Criminal Code which stipulate that an arrest cannot be made without a warrant and the prosecution for any offence under any of the sections listed cannot be instituted except by or with the consent of a law officer.