Federal Republic Of Nigeria V Senator Olawole Julius Adewunmi (2007)

LAWGLOBAL HUB Lead Judgment Report

U. A. KALGO, J.S.C.

This is an appeal against the decision of the Court of Appeal, Lagos Division delivered on 13th June 2002. For a clear understanding of the facts and circumstances giving rise to this case, I find it necessary to give the background history of the events culminating to this appeal. By a charge sheet dated 24th March 1997 containing eighteen (18) counts, the Appellant instituted this action before the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal sitting in Enugu. The charge sheet was signed by Mr. Emeka Ngigea private Legal Practitioner. Later, on the order of the Tribunal the original charge sheet containing 18 counts was filed on the same day. it was also signed, by Emeka Ngige Esq. The trial of the respondent commenced at the tribunal on the said counts/charges; but could not be completed before the coming into effect of the 1999 Constitution on the 29th of May 1999. With the advent of civilian administration in 1999 Decree No. 18 of 1994, was repealed and Decree No, 62 of 1999 titled “Tribunals (Certain Consequential Amendments, etc) Decree 1999, which came into effect on 28th of May 1999, was promulgated under which all matters pending before any Failed Banks Tribunal, were transferred to the Federal High Court or State High Court as the case may be. Pursuant to the provisions of the said Decree No. 62 of 1999, the amended charge against the respondent was consequently transferred to the Federal High Court Lagos from the Enugu Failed Banks Tribunal for trial denovo. Accordingly on the 27th of October 1999 the amended charge jointly signed by Mrs. M. O. Fatunde, a Senior State Counsel with the rank of Assistant Chief Legal Officer and Emeka Ngige Esq. a private legal practitioner on behalf of the Hon. Attorney-general of the Federation was filed. It was accepted by the trial court and the counts on the charge sheet were read and explained to the respondent who pleaded not guilty to all of them. The respondent was on his application granted bail pending trial and the case adjourned to 17/11/99 for hearing and later to 29/3/2000 and finally to 19/4/2000 for definite trial on 19/4/2000. On the 18/4/2000, the respondent filed a Summons on Notice supported by an affidavit praying the trial court to strike out the charge filed against him For want of jurisdiction on the grounds that the charge was not Instituted in accordance with the due process of law and the requisite provisions of the Constitution. The summons was then heard by the trial court and in a considered ruling, the learned trial judge Marden J, held that the charge was regular, competent, valid and in accordance with the constitution. He therefore had the jurisdiction to try the respondent on the charge. Dissatisfied with this ruling, the respondent appealed to the Court of Appeal which after hearing the appeal, allowed the appeal and struck out the charge against the respondent. It held that:

“The amended charge brought against the appellant (now respondent) on 28th October 1999 constitutes a new charge and that the provisions of the 1999 Constitution apply to it and must be observed”.

This appeal is from that decision. In this court, parties filed and exchanged their respective briefs. The appellant formulated two issues for the determination of this court which read:

“(i) Was it not wrong of the Court of Appeal to hold that the amendment of the charge against the respondent after the commencement of the 1999 Constitution makes the amended charge a new one and the initiation of which was invalidated by the provisions of that Constitution; notwithstanding that the charge was unquestionably valid at the time of its filing in 1997.

(iii) If Section 174 of the 1999 Constitution forbids the Attorney-General of the Federation from instructing a private Legal practitioner to initiate criminal prosecution (s) as decided by the Court of Appeal, but not conceded by the Appellant, has the signature of a state counsel on the amended charge not foreclosed any question about its validity regardless of whether or not it was countersigned by a private legal practitioner authorized by the Attorney-General to do so?. The respondent in his brief also adopted all the two issues raised by the appellant, which I shall consider in this appeal. In the Summons On Notice dated 13/4/2000 and filed on 18/4/2000 in the trial Federal High Court, the respondent prayed the court for an order striking out the charge against the respondent for want of jurisdiction of the court to entertain the charge on the grounds that the charge was not instituted in accordance with due process of law and requisite Constitutional provision. The summons was further explained by the affidavit in support in the following paragraphs:-

“4. That the charge instituted against the Accused Person/Applicant was signed on behalf of the Attorney-General of the Federation by Mr. Emeka Ngige Esq., a Private Legal Practitioner.

5. That I am informed by Chief Afe Sabalola SAN who I verily believe that the. Attorney-General cannot delegate his power to initiate criminal proceedings to a Private Legal Practitioner.
6. That I verily believe that Mr. Emeka Ngige lacked authority in law and in fact to sign on behalf of the Attorney-General of the Federation”.

As I stated earlier the learned trial judge, after hearing parties on the said summons, decided that the said charge was competent valid and constitutional and that he had jurisdiction to entertain it. But on appeal, the Court of Appeal held that the charge was a new charge and therefore not valid before the trial court. Looking at the 2 issues of the appellant, it appears to me clearly that they are interwoven in many respects and I therefore intend to consider them together. The original charge was filed in the Failed Bank Tribunal Enugu on 24th March 1997, The charge sheet was signed by Emeka Ngige Esq. a legal practitioner on behalf of the Attorney-General of the Federation pursuant to the provisions of Section 24 (2) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 which provides:

“24(a) Prosecutions for Offences under this Decree shall be instituted before the Tribunal in the name of the Federal Republic of Nigeria by the Attorney-General of the Federation or such other Officer in the Federal Ministry of Justice as he may authorize so to do, and addition thereto he may

(b) If a Tribunal so directs or if the Central Bank of Nigeria, or the Nigeria Deposit Insurance corporation so request, authorize any other legal practitioner in Nigeria, to undertake any such prosecution directly or assist therein.

(c) The question whether any or what authority has been given in pursuance of sub-section (2) of this section shall not be inquired into by any person other than the Attorney-General of the Federation”.

By a letter dated 3rd August 1995, and signed by the then Attorney-General of the Federation (Chief M. A. Agbamuche SAN) Emeka Ngige was appointed a prosecuting counsel for the Failed Banks Tribunal Lagos Zone and given the fiat to prosecute cases arising from the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree 1994. Therefore the signing and filing of the charge sheet before the Failed Banks Tribunal Enugu in 1997 by Emeka Ngige Esq. was perfectly in order. The Court of Appeal properly recognized this when it said:

“There is no doubt that under the scheme of things in 1997, the Attorney-General of the Federation could in appropriate circumstances authorize a private legal practitioner to undertake the prosecution of offences under Decree No 18 of 1994. It is also noteworthy that only the Attorney-General of the Federation could at the time raise questions as whether or not such authority to prosecute was properly given”. I entirely agree with the Court of Appeal on this in 1999, just before the advent of the civil regime in Nigeria, the Failed Banks Decree 18 of 1994 was repealed by the Tribunals (Certain Consequential Amendments etc) Decree No. 62 of 1999 which came into operation on the 28th of May 1999. By this new Decree all matters pending before the Failed Banks Tribunals shall be transferred to the Federal High Court or State High Courts as the case may be for trial denovo. Accordingly in this case, the proceedings were transferred from the Failed Banks Tribunal Enugu to the Federal High Court Lagos, and on amended charge containing 19 counts was filed on 27 – 10 – 99 and accepted on 28/10/99 by that court. The charge sheet was signed by (p. 51 of the record) ‘Mrs. M. 0. Fatunde Assistant Chief Legal Officer Federal Ministry of Justice D. P. P. Office Lagos and Emeka Ngige Esq. Prosecutor For: The Hon. Attorney-General of the Federation 27/29 Martins Street 4th Floor, Lagos”.

It is clear therefore that the amended charge was filed in the; Federal High Court after the coming into operation of the 1999 Constitution. What then is the position of that charge? According to the provisions of Section 1 (3) of the Decree No 62 of 1999 – “A charge, claim or court process filed before a Tribunal established under any of the enactments specified in the schedule to this Decree shall be deemed to have been duly filed or served before the Federal High Court or High Court of a State, as the case may be and as such a charge, claim and court process shall be deemed amended as to title, venue and such other matter as may be appropriate to give effect to this sub-section without further assurance than this Decree”. There is no doubt, it seems to me, that the intention of making this provision is to make it possible for the receiving court, be it Federal High Court or the State High Court, to accept intoto any charge, claim or court process from the Failed Banks Tribunal without anything at all If it is a criminal charge as in this case, the charge shall be deemed to be amended as to title of what Tribunal it was first filed and as to venue and any appropriate action to give effect to the section In the instant case, the charge sheet filed by the prosecution against the respondent in the Failed Banks Tribunal Enugu and signed by Emeka Ngige_Esq. appears to me to be the same charge on the same criminal matter as the one termed “amended charge” filed by Mrs. Fatunde and Emeka Ngige on 27/10/99. The only slight difference is the addition of 1 count thereon which for all intents and purposes formed part of the same criminal charge against the respondent which originated in the Failed Banks Tribunal. Also since the original charge was properly and validly instituted before the Failed Banks Tribunal Enugu under Decree No 18 of 1994, it would be deemed to be validly instituted by filing it in the Federal, High Court pursuant to the Decree No 62 of 1999 even though called amended charge. It is not and cannot in my view be called a fresh or a new charge in the circumstances of this case. As set out earlier in this judgment, the so called amended charge was signed jointly by Mrs. M. O. Fatunde and Emeka Ngige Esq., instituting the criminal charge against the respondent. There is no doubt at all that the power to institute criminal proceedings against any person in the 1999 constitution lies on the Attorney-General of the State or the Federation as the case may be, but such power may be exercised by the Attorney-General himself or through any officers of the department see section 174 and 211 of the 1999 constitution. These sections though very similar in content do not require that the officers can only exercise the power to institute criminal proceedings if the Attorney-General expressly donated his power to them. The provisions of the sections presume that any officer in any department of the Attorney-General’s office is empowered to initiate criminal proceedings unless it is proved otherwise. This will not be in conflict with our decision in A.G. Kaduna State v. Hassan (1985) 2 NWLR (Pt. 8) 483, where the main controversy was that there was no incumbent Attorney-General who could have donated the power to discontinue criminals prosecution in the case concerned there is also no doubt in my mind that Mrs. Fatunde, an Assistant Chief Legal Officer in the Federal Ministry of Justice, D.P.P. Office, is an officer in one of the departments of the Attorney-General of the Federation and is highly qualified to institute criminal proceedings against the respondent. She has therefore validly and properly, in my view, signed the amended charge filed on 27th October, 1999. on the signature of Mrs. Fatunde alone, the charge is properly laid and filed in the Federal High Court, Lagos without more.

The signature of Emeka Ngige is not necessary for this purpose and can be struck-out. But Emeka Ngige’s signature can be allowed to stay since it was on the original charge in the Failed Banks Tribunal and by the provisions of Section 1 (3) of the Decree No. 62 of 1999, the Federal High Court can accept the charge with appropriate amendment. There is also no existing law I am aware of invalidating the charge as it stands and the respondent has not cited any legal authority challenging the validity of the charge with the signature of Mrs. Fatunde and.Emeka Ngige thereon. Most of the cases cited by the learned counsel for the parties in their briefs are either on the interpretation of a section of the constitution which is different from the one being considered or on decided cases on the old Decree 18 of 1994 which was repealed and whose provisions were overtaken by those of the 1999 Constitution. PAGE| 8 They are therefore in my respectful view, irrelevant and cannot be useful in this appeal. The case of A. G. Kaduna State v. Hassan (supra) which I earlier mentioned is clearly distinguishable from this case. In that case, there was no incumbent Attorney-General who could possibly or be presumed to donate the power and” the subject matter was discontinuance of criminal prosecution and not initiation thereof as is the case here. The cases of Comptroller, Nigeria Prison services & Ors v. Dr. Femi Adekanye & Ors (No 1) 2002 15 NWLR (Pt.790) 318 – (2002) 12 SCM, 37 and many others cited by the appellant’s counsel, substantially dealt with the appearance of private legal practitioner in criminal cases on behalf of the Attorney-General and not the initiation of such criminal proceedings.

To that extent, they are irrelevant here. From all what I have stated above, it is my respectful view that the Court of Appeal was wrong to hold that the amended charge filed on 27th October 1999 in the Federal High Court Lagos was a new charge as far as the respondent was concerned and that the charge as signed by Mrs. M. 0. Fatunde, Assistant Chief Legal Officer of the Federal Ministry of Justice and Emeka Ngige Esq. a legal practitioner was invalid, incompetent and unconstitutional I therefore resolve the 2 issues for determination in favour of the appellant. Accordingly, this appeal is meritorious. I allow it, set aside the decision of the Court of Appeal and restore that of the trial Federal High Court. The case is remitted to the Federal High Court for trial.

SC. 287/2007