Paulinus Ikedigwe V. Federal Republic Of Nigeria (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment)

The instant appeal is against the Ruling delivered on 11th November, 2008 by the High Court of Anambra State, Onitsha Judicial Division presided over by Hon. Justice C.E. Iyizoba, dismissing the Appellant’s motion on notice in which he prayed the Court for an Order quashing the Charge preferred against him on the ground that the said Charge was not validly instituted as the Economic and Financial Commission or any of its officers have no power under the Dishonoured Cheques (Offences) Act to prefer the Charge in question. The High Court of Anambra State, Onitsha Judicial Division and the Economic and Financial Crimes Commission will hereinafter be simply referred to as “the lower court” and “the EFCC” respectively.

The facts of the instant matter as gathered from the Record of Appeal are that the Appellant was charged before the lower court for offences under the Dishonoured Cheques (Offences) Act, Cap D 11, Laws of the Federation of Nigeria, 2004. The Charge preferred against the Appellant can be found at page 2 of the Record of Appeal. It reads thus:-

CHARGE

That you Paulinus Ikedigwe sometimes in April, 2006 at Onitsha in the Onitsha Judicial Division of the High Court of Anambra State with knowledge that you had insufficient funds in your account issued to one Samuel Ogugua Okafor a FSB International Bank (now Fidelity Bank PLC) Cheque No. 02839277 dated 24th June, 2006 for the sum of N4,500,000.00 (Four million five hundred thousand naira) which said Cheque when presented for payment within three months of issuance was dishonoured due to insufficient funds in your account and thereby committed an offence contrary to section 1(1 )(a) of the Dishonoured Cheques (Offences) Act Cap D 11 Laws of the Federation of Nigeria 2007 (sic) and punishable under section 1(1)(b)(i) and (ii) of the same Act.

COUNT 2

That you Paulinus Ikedigwe sometimes in April, 2006 at Onitsha in the Onitsha Judicial Division of the High Court of Anambra State with knowledge that you had insufficient funds in your account issued to one Samuel Ogugua Okafor a FSB International Bank (now Fidelity Bank PLC) Cheque No. 02839278 dated 24th June, 2006 for the sum of N4,500,000.00 (Four million five hundred thousand naira) which said Cheque when presented for payment within three months of issuance was dishonoured due to insufficient funds in your account and thereby committed an offence contrary to section 1(1 )(a) of the Dishonoured Cheques (Offences) Act Cap D 11 Laws of the Federation of Nigeria 2007 (sic) and punishable under section 1(1)(b)(i) and (ii) of the same Act.

COUNT 3

That you Paulinus Ikedigwe sometimes in April, 2006 in the Onitsha Judicial Division of the High Court of Anambra State with knowledge that you had insufficient funds in your account issued to one Samuel Ogugua Okafor a FSB International Bank (now Fidelity Bank PLC) Cheque No. 02839276 dated 27th August, 2006 for the sum of N4,500,000.00 (Four million five hundred thousand naira) which said Cheque when presented for payment within three months of issuance was dishonoured due to insufficient funds in your account and thereby committed an offence contrary to section 1(1 )(a) of the Dishonoured Cheques (Offences) Act Cap D 11 Laws of Federation of Nigeria 2007 (sic) and punishable under section 1(1)(b)(i) and (ii) of the same Act.”

One Sa’ad Hanafi Sa’ad of the EFCC signed the Charge.

After the Appellant had pleaded to the Charge, he filed on 13/6/2008 a motion on notice dated 12/6/2008 in which he prayed for: –

“An Order of this Honourable Court quashing Charge No. 0/10c/2007 Federal Republic of Nigeria vs. Paulinus Ikedigwe, that is, the present proceedings, on the ground that same is null and void in law and it cannot be initiated by the Economic and Financial Crimes Commission or any of the officers of the said Commission.”

The Respondent opposed the motion on notice in question and for this purpose filed a counter affidavit in response to the supporting affidavit of the Appellant’s motion on notice. The lower court in its Ruling delivered on 11/11/2008 in the said motion, having first stated that Section 3(2) of the Dishonoured Cheques (Offences) Act, Sections 6(m) and 46 of the Economic and Financial Crimes Commission (Establishment) Act, 2004 must all be read together with Section 174(1)(b) or 211(1)(b) of the 1999 Constitution in order to determine whether the Economic and Financial Crimes Commission has power to initiate criminal proceeding before the High Court without first obtaining the fiat of the Attorney-General, further proceeded to say:-

“I certainly agree with Counsel for the Respondent that the intendment of Sections 174 and 211 of the 1999 Constitution as it relates to Section 3(2) of the Dishonoured Cheques (Offences) Act is to show clearly the powers of the Attorney-General in relation to criminal prosecutions and nothing more.