Serah Ekundayo Ezekiel V. Attorney General Of The Federation (2017)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The appellant in this appeal and others were arraigned before the Federal High Court, Ikeja Judicial Division, on November 18, 2011, on a Charge which alleged the offence of trafficking in persons contrary to Sections 15 (a); 15 (c ); 16; 19 (1) (b); 19 (1) (d) and 21 of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended).

Miss Nneka Adaora Ajie, a Law Officer of NAPTIP, signed the Charge dated November 18, 2011, woven around eighteen Counts, for the Honourable Attorney General of the Federation.

A year later, precisely, on November 18, 2012, the said Miss Nneka Adaora Ajie, on behalf of the Honourable Attorney General of the Federation, amended and signed the Charge, again, anchored on eighteen counts against the appellant only.

She was alleged to have committed offences of trafficking in persons contrary to Sections 15 (a); 15 (c ); 16; 19 (1) (b); 19 (1) (d) and 21 of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended).

Upon her arraignment on the amended

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charge on February 24, 2012, the appellant, who was unrepresented, pleaded guilty to all the counts. The Court, (hereinafter referred to as “the trial Court”), in consequence, finding her guilty as charged, convicted her on the eighteen Counts or the Charge and sentenced her to various degrees of sentences: all sentences to run concurrently.

Aggrieved by her conviction and sentence, she appealed unsuccessfully, to the Court of Appeal, Lagos Division (throughout this judgment, simply referred to as “the lower Court’), which Court affirmed the Trial Court’s verdict.

This further appeal is the appellant’s expression of her disgust against the lower Court’s affirmation of the trial Court’s decision. She framed two issues for the determination of her appeal: issues which were endorsed by the respondent. They were couched thus:

1. Whether Law Officers of the National Agency For the Prohibition of Traffic (sic) in Persons and Other Related Matters (NAPTIT) (sic) are officers in the Department of the Attorney General of the Federation and can sign Charge or Processes initiated by the Attorney General of the Federation for and on behalf of the Attorney General of

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the Federation

2. Whether if the lower Court had considered the submission of the appellant’s counsel that the appellant was a victim of the offences she was charged (sic) and first offender, the lower Court would not have come to the conclusion that the learned trial judge has (sic) eminently exercise (sic) his discretion judiciously and judicially thereby reduce (sic) the sentences passed on the appellant

ARGUMENTS ON THE ISSUES

ISSUE ONE

Whether Law Officers of the National Agency For the Prohibition of Traffic (sic) in Persons and Other Related Matters (NAPTIT) (sic) are officers in the Department of the Attorney General of the Federation and can sign Charge or Processes initiated by the Attorney General of the Federation for and on behalf of the Attorney General of the Federation

APPELLANT’S SUBMISSIONS

At the hearing of this appeal on December 15, 2016, E. A Oyebanji, learned counsel for the appellant, adopted the brief filed on August 5, 2014 and the Reply brief filed on March 3, 2015, although deemed, properly filed on June 4, 2015 as representing his arguments in this appeal.

The crux of his arguments was that

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although by the. provisions of Section 174 (2) of the 1999 Constitution (as amended), the Attorney General’s powers to initiate and undertake criminal proceedings may be exercised by him in person or through the officers of his department, the officers of the Agency under his control and supervision cannot do so, citing Obi v INEC (2007) 7 SC 268, 315.

In his submission therefore, the exercise of that power by the officers of NAPTIP was a gross violation of Section 174 (1) (b) (supra). He contended that the lower Courts were wrong in resorting to Section 4 (c), 60 and 64 of the NAPTIP Act (supra), citing pages 155 -156 of the record because the said Act did not make the Agency a department in the office of the Attorney General. He maintained that Section 174 (2) (supra) provides for “a department of the Attorney General of the Federation” and not “departments of the Attorney General.” As such, NAPTIP, in his submission, does not qualify as a department within the meaning of Section 174 (2) (supra).

According to him, Section 150 of the Constitution (supra) recognizes only Law Officers in the Federal Ministry of Justice. He urged the Court to give

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Section 174(2) (supra) its simple and ordinary meaning, citing Dangana and Anor v Usman and Ors (2012) 2 SC (pt 111) 103, 133 – 134; Fawehinni v IGP (2000) 7 NWLR (pt 665) 481; Awolowo v Shagari (1979) SC 51; (1979) 6-9 SC 37; AG, Nassarawa State v. AG, Plateau State (2012) 3 SC (Pt 11) 1, 67.

He canvassed the view that, since the Agency, a creation of the above constitutive Act, is endowed with perpetual succession and power to sue and be sued in its corporate name, with no provision therein making it a department in Attorney General’s office, it (NAPTIP) could not initiate the charge in its name but on behalf of Attorney General, citing Sections 1; 2 (a) and b and 5 of the Act (supra) and 174 of the Constitution (supra); FRN v Adewumi (2007) NWLR (pt 1042).

He cited authorities for his proposition that if a statute or piece of legislation prescribes that a particular document shall only be signed by a particular officer, it is mandatory that only that officer, and no other, shall sign the document. His authorities are Awobutu v The State [1976] All NLR 237; [1976] 4 SC 27; Plymouth Corporation v. Hurell (1968) 1 QB 455; Graddage v Harringay LBC (1975) 1

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WLR 241, 249; Prince Blucher Ex parte Debtor (1931) 2 CH 70, 72- 75; London County Council v AFP Ltd and Anor (1955) 2 QB 2-8.

Against the background of the above submissions, he took the view that Charge No FHC/IKJ/CR/2/2011 of December 22, 2011 was incompetent since it was neither signed by the Attorney General himself nor an Officer of his Department. In his submission therefore, the entire proceedings constituted an abuse of process and a violation of Section 174 (3) Constitution, thereby robbing the trial Court of its jurisdiction, Madukolu and Ors v Nkemdilim (1962) AII NLR 587.

He maintained therefore, that since the said Charge was not initiated as shown above, it was not initiated by due process, Section 174 (3) of the Constitution (supra).

He accordingly, impugned the approach of the lower Court, INEC v Musa (2003) 3 NWLR (pt 806) 72; (2003) 1 SC (Pt 1) 106. In his view, the appellant would not have complained if Miss Nneka Adaora Ajie had signed the said Charge on behalf of the Federal Republic of Nigeria, citing FRN V Osahon and Ors [2006] 2 SC (pt 11) 1 and Torri v National Park Service of Nigeria [2011] 6 – 7 SC (pt 111) 171.<br< p=””

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RESPONDENT’S ARGUMENTS

On his part, C. J. Asiegbu, Assistant Chief Legal Officer, NAPTIP, adopted the brief of argument filed on October 23, 2014. It was contended that, since neither the Constitution nor the Interpretation Act defined the word “department,” only other aids to interpretation would solve the conundrum occasioned by the lacunae, citing Custom of Finance and Economic Development and Anor v Ukpong and Anor (2000) LPELR -6931 (CA).

Counsel re-iterated the settled position that, where the provisions of the Constitution are amenable to two meanings, the Court has a duty to opt the meaning that would give force and effect to the Constitution read together as a whole and promote its object and purpose, Kalu v. State (1998) LPELR -1655 (SC); hence, a Court would never lean in favour of an interpretation that would defeat the very essence of the Constitution, Ansaldo Nig Ltd v NPFMB (1991) LPELR -498 (SC).

He canvassed the view that NAPTIP qualifies as a department under the Attorney General office and its Law Officers are therefore, competent to sign charges, citing Section 4 (1); 9 (2); 60 (1) (2) and (3) of the TIPPLEAA, 2003 (as amended)

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and the views of the lower Court on the above provisions at pages 154, 156 and 157 of the record.

Citing Nyame v FRN [2007] 7 NWLR (pt 1173) 344; FRN v Adewumi [2007] 10 NWLR (pt 1042) 399, 418 419, he submitted that criminal proceedings are commenced either in the name of the Federal Republic of Nigeria or the Attorney General of the Federation.

He maintained that the presumption of administrative and judicial acts inures in favour of the respondent and the onus is on the appellant to dislodge it, Comptroller of Prisons v Adekanye and Ors (No 1) [2002] 15 NWLR (pt 790) 318, 330. He pointed out that, since the appellant did not complain about the defect on the face of the Charge, by the operation of Section 167 of the CPA, it was too late to do so.

RESOLUTION OF THE ISSUE

The principal complaint of the appellant in this appeal runs like a thread throughout the gamut of the submissions on this issue. It is that, since Miss Nneka Adaora Ajie, a Law Officer of NAPTIP, did not sign the amended Charge before the trial Court in the name of the Attorney General, the entire proceedings were vitiated. The logic of this sophistic, albeit, vacuous

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argument is that NAPTIP is not a department in the office of the Attorney General.

Now, Section 174 provides thus:

“(1) The Attorney General of the Federation 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 Act of the National Assembly;

(b)

(c)

(2) The powers conferred upon the Attorney General of the Federation under Subsection 1 of this Section may be exercised by him in person or through officers of his department.”

(Italics supplied for emphasis]

My Lords, from a conspectus of the pronouncements of this Court on the above Section of the Constitution, it is evident that all Agencies charged with prosecutorial powers are qualified to initiate criminal charges in Court. Indeed, even legal practitioners briefed by the Attorney General are competent to initiate charges, FRN v Adewunmi [2007] 10 NWLR (pt 1042) 399; Comptroller, NPS v Adekanye [2002] 15 NWLR (pt 790) 318; AG Kaduna State v Hassan (1985) 2 NWLR (pt 8) 483; The State v Aibangee and

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Anor (1988) 3 NWLR (PT. 84) 548, 578; (1988) 7 SCNJ (pt. 1) 128, 137, 153; DPP v Akozor (1962) 1 ALL NLR 235; (1962) 1 SCNLR 356; Nafiu Rafiu v Kano State [1980] 8 -11 SC 130; F.R.N. v. Osahon and Ors [2006] 5 NWLR (pt. 973) 361 Amadi v FRN [2008] 18 NWLR (pt 1119) 259, 276.

With particular reference to NAPTIP, it is even clear that Section 4 (1) and (2) of its Constitutive Act, put this matter beyond doubt. On the one hand, Section 4 (1) (supra) assigns the Agency the responsibility for supervision and coordination of activities relating to investigation and prosecution of all offences connected with or relating to trafficking in persons and other related matters in consultation with the Attorney General.

On the other hand, Section 9 (2) assigns its legal department the responsibility for prosecuting offenders under the Act in interpreting the chiaroscuro of provisions of the NAPTIP Act, the lower Court concluded that:

“…that for the purposes of investigation and prosecution of matters, law officers of the Agency are … under the control and general supervision of the Attorney General and can, in the circumstance, sign processes and charges for and on

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behalf of the Attorney General of the Federation.”

[Page 157 of the record; italics supplied for emphasis]

I entirely, endorse this conclusion as it is tandem with the position of this Court, FRN v Adewunmi (supra); Comptroller, NPS v Adekanye (supra); AG, Kaduna State v Hassan (supra); The State v. Aibangee and Anor (supra); DPP v Akozor (supra); Nafiu Rafiu v Kano State (supra); Osahon and Ors (supra). In effect, Miss Nneka Adaobi Ajie, a Law Officer of NAPTIP, was competent to sign the amended charge, Amadi v FRN (supra) 276.

Worse still, the appellant did not object to the amended charge but rather, pleaded guilty. The complaint in this appeal is therefore belated, Amadi v FRN (supra). Indeed, as this Court held in Nyame v FRN, it is not a defence known to law that an accused [person] cannot be prosecuted by the authority with prosecutorial powers …every prosecutor or authority or agency vested with the powers to prosecute should be encouraged to carry out their duties.”

In all, there is no merit in the complaint in this issue which I resolve against the appellant.

ISSUE TWO

Whether if the lower Court had considered

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the submission of the appellants counsel that the appellant was a victim of the offences she was charged (sic) and first offender, the lower Court would not have come to the conclusion that the learned trial Judge has (sic) eminently exercise (sic) his discretion judiciously and judicially thereby reduce (sic) the sentences passed on the appellant

The complaint in this issue turned, essentially, on the lower Court’s affirmation of the trial Courts sentence imposed on the appellant. He cited statutory and case law authorities, paragraphs 5. 1- 5.17, pages 9- 14 of the brief.

On his part, counsel for the respondent submitted that sentence is at the discretion of the Judge. He pointed out that the lower Court referred to the factors which influenced the trial Court in imposing the various degrees of sentences, page 162 of the record.

RESOLUTION OF THE ISSUE

It would only be proper to look at the factors that influenced the trial Courts discretion in the imposition of sentences. Listen to this:

“I have heard plea of this convict for leniency. The offences for which the convict has been convicted are offences that are

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not only immoral, wicked and callous; they are offences that challenge the existence of society. If this trend is not checked the society will wake (sic, up) too late to discover that its very existence is gone. The young girls trafficked are meant to be mothers of tomorrow. If they are allowed to be educated and settle down in marriage, they will be the mother (sic) of our tomorrow. Our next generation of leaders could even be born by this convict. It is terrifying that a lady could go this far to sell young Nigerian girls into prostitution in Mali.

The offences are grievous and the Court must not give this kind of situation any opportunity to flourish. The convict will be given the sentence that will be a deterrent to other like-minded criminals.”

(pages 68 -69 of the record; italics supplied)

In affirming the above approach, the lower Court announced most perceptively:

“Now looking at the sentences imposed by the trial Court viz-a-viz the facts of this case and the factors that guide (sic) the trial Court, I do not find anything in the submission of learned counsel to the appellant that will persuade me to disturb the sentences passed by

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the learned trial Judge. I am satisfied that the trial Judge has eminently exercised his discretion not only judiciously but judicially.

[pages 163 of the record; italics supplied]

My Lords, like the lower Court, I am equally, enamored of the approach of the trial Court. I therefore, affirm its endorsement of the position of the trial Court. Permit me, however, to add that it is indeed, very worrisome that the insatiable allure of filthy lucre could impel a woman to traffic in young girls [whom the trial Court, aptly described as “mothers of tomorrow] knowing fully well that the end result would be the ultimate debasement of womanhood: how immoral! How disgusting!

In all, it is rather too late to complain since the appellant was visited with the appropriate comeuppance for her despicable greed. If I may ask: of what use is all that wealth, presumably, acquired in such shameful circumstances

My Lords, before I end this very short judgment in this appeal – an appeal which counsel ought to know should not have nudged its way to this rare judicial altitude – permit me to avail the appellant, and all persons of her ilk, of one of

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those arcane insights I gained from my long and fruitful sojourn in the realm of the history of ideas,

It is the profound wisdom ingrained in the aphorism which Social Ethicists left behind for an avaricious humanity, namely amo habemo habendi crescit the love of having increases with having. In other words, there would be no limit to the cravings for material things unless people rein in their unquenchable appetite for them. After all, they are notable only for their evanescence!

In all, I find no merit in this appeal, I have no hesitation in entering an order dismissing it. Appeal dismissed.

SC.389/2014