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
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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:-
- Whether the Court of Appeal was right not to have nullified the proceedings for want of jurisdiction (Grounds 1, 2, 3, 4, 5).
- 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
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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
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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.
On issue No. 2, learned counsel referred to the Court of Appeal ruling on pages 974 – 976 and submitted that the evidence of PW1 and PW6 relied upon is legally inadmissible as it is hearsay evidence which was confirmed by both witnesses on pages 661 and 538 of the record respectively.
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He maintained that the evidence required to establish a crime must be evidence of a witness who saw or heard or took part in the transaction upon which he was giving evidence and hearsay evidence is not admissible for the purpose of establishing a crime. He placed reliance on the following cases for the submission: Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1; Odogwu v. State (2013) 14 NWLR (Pt.1373) 74 at 108: Omega Bank (Nig) Plc v. O. B. C. Ltd (2005) 8 NWLR (Pt.928) 547.
He pointed out that PW1 unequivocally admitted on record that this case has nothing to do with embezzlement or misappropriation of funds and referred to page 606 of the records. He submitted that an accused person may make a no case submission at the close of the case of the prosecution where-
(a) There is no legally admissible evidence linking the accused with the offence charged;
(b) The evidence adduced by the Prosecution has been so discredited by cross-examination that no reasonable Tribunal can safely convict on it. He placed reliance on the cases of Okoro v. State (1988) 5 NWLR (Pt.94) 255 at 268 per Karibi-Whyte JSC and Suberu v. State (2014) 8 NWLR (Pt.1197) 586.
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He argued spiritedly that PW4 and PW5, the eye-witnesses who attended and witnessed the bidding process for the contracts admitted that it was transparent and urged this Court to allow the appeal.
Learned counsel for the respondent submitted that the ruling on the consolidated preliminary objections dated 26 November, 2012 was thorough and conclusive on the issue of jurisdiction which was again raised in the No Case Submission. Consequently the trial Court considered all the issues brought before her including the preconditions envisaged under Sections 53 (1) and 58 of the Public Procurement Act 2007 as raised by the 5th and 10th accused and ruled upon. He argued that the trial High Court and the Lower Court had to exercise extreme caution in their respective rulings in order not to delve into the merits and substance of the case. He contended that the trial Court having assumed jurisdiction became functus officio and so did not have to revisit issues already dealt with as ruled by the Court of Appeal; and before the issue of jurisdiction could be raised before this Court or any other Court, leave of that Court must first be obtained and urged this Court
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to uphold the concurrent findings of the two Lower Courts on the issues under consideration and order the appellant to return to the trial Court to enter his defence. Learned counsel relied on Nyame v. FRN (2010) 17 NWLR (Pt.1193) 344. He submitted that where issues have been raised and conclusively dealt with by the Court, the same cannot be raised afresh before the same Court and this will amount to abuse of Court process even if it is on jurisdiction. The only course opened to the appellant was to have appealed against the ruling of 26 November, 2012.
Learned counsel contends that the provisions of Public Procurement Act 2007 do not confer on the Bureau of Public Procurement (BPP) or any other body created under the law powers to conduct criminal investigation or to prosecute criminal cases resulting from procurement processes. lt is only the EFCC that can swing into action without reference to any other agency (between EFCC and BPP) in the event of a direct complaint of procurement crime brought to it or which is disclosed in the course of any investigation. He argued that going by the decision in Nyames’s case, the EFCC has power to coordinate,
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investigate and prosecute cases under the Criminal Code and the Penal Code Laws and is not bound by administrative niceties like obtaining consent to proceed against an accused person as is being canvassed by the appellant in respect of counts 78 and 79. He urged this Court to dismiss the appeal and order the appellant to go to the trial Court to re-commence the case a fresh because the learned trial Judge E. S. Chukwu J. is now deceased.
On issue no. 2, learned counsel disagreed with the appellant’s submission that PW1s evidence is hearsay. He referred to Section 126 Evidence Act and submitted that PW1 testified on the conduct of the investigation while PW6 testified as an expert in procurement matters and following the decision in Utteh v. State (1992) 2 SCNJ (Pt.1) 183, the evidence given by a witness concerning a statement made to him by a person who is not himself called as a witness, may or may not be hearsay. It is hearsay and inadmissible if the witness reporting it intends thereby to establish that such statement is true, but it will not be hearsay and therefore admissible if the witness proposes not to establish its truth but to show merely
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that such statement was made and any evidence of an investigating police officer about what he saw and observed is not hearsay. See: Ekpo v. State (2001) 7 NWLR (Pt.712) 292. He therefore urged this Court to uphold the decision of the Court of Appeal.
In the sister appeal No.SC.991/2015 – Dr. Dayo Olagunju v. Federal Republic of Nigeria. I had stated that the prosecution made out a prima facie case against the appellant which requires an explanation. I went on to produce Section 5 of the Economic and Financial Crimes Commission Act 2004 as well as Sections 53 (1) and 53 (3) of the Public Procurement Act and found that the EFCC has power to investigate and prosecute all offences connected with or relating to economic and financial crimes in consultation with the Attorney – General of the Federation. In exercise of the powers conferred on him by Section 174 of the Constitution, the Attorney General of the Federation can 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 Act of the National Assembly. He may also take over and continue any
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such criminal proceedings that may have been instituted by any other authority or person. Where the EFCC exercises its power under Section 5 (1)(k) of the EFCC (Establishment) Act, nobody has a right to question whether it obtained the necessary fiat from the Attorney-General of the Federation before embarking on the prosecution. These findings and exposition of the law apply to this appeal all its ramifications. Consequently I find that there is no merit in the appeal and it is dismissed. In view of the fact that Chukwu J., who took evidence before the prosecution closed its case is reported dead, the case is remitted to the Chief Judge of the Federal High Court for re-assignment to another Judge who is to commence trial de novo. All objections relating to the issue of jurisdiction should be taken and dealt with along with the substantive case. The case is to be given accelerated hearing.
SC.992/2015