Dr. Joseph Amedu V. Federal Republic of Nigeria (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

This appeal is against the decision of the High Court of the Federal Capital Territory Abuja, presided over by Hon. Justice Ishaq Bello dismissing the application to quash Charge No. CR/8/04 preferred against the Appellant.

The facts of the case put briefly are that the Appellant and another person were arraigned before the learned trial Judge on 7th December, 2004. The Appellant and the other person charged along with him were charged under the Corrupt Practices and other Related Offences Act for conspiracy, diversion of funds and conferring corrupt and unfair advantage upon themselves. After arraignment the Appellant was later granted bail on 9th December, 2004 and the matter was adjourned till 27/1/2005 for hearing. On 25/1/2005, the Appellant filed an application dated 24/1/2005 praying the lower court to quash the Charge preferred against him. See pages 45-46 of the Record. The application was heard on 15/3/2005 and Ruling thereon was eventually delivered on 28/4/2005. The lower court in its Ruling dismissed the Appellant’s application on the ground that section 61 of the Corrupt Practices and Other Related Offences Act 2000 provided for an irrebuttable presumption of law and that the Charge preferred against the Appellant was different from the accusation in respect of which he was exonerated by the DPP. .

The Appellant being dissatisfied with the Ruling of the lower court lodged an appeal against the same by filing a Notice of Appeal on 10/5/2005. The Notice of Appeal contains three (3) grounds of appeal.

The grounds without their particulars read thus: –

” GROUND 1

The learned trial judge erred in law when he delivered the ruling in the judge’s chambers, contrary to the provision of the Constitution of the Federal Republic of Nigeria, 1999.

GROUND 2

The learned trial Judge erred (sic) the Corrupt Practices and other Related Offences Act, 2000 in law when he held that the word “deemed” as used under Section 61 of the Independent Corrupt Practices Commission Act is a presumption of law and therefore irrebuttable.

GROUND 3

The learned trial judge erred in law when he held that the accusations made to the police, subject matter of the advice of the DPP is different from the current charge.”

The appeal was entertained by this Court on 20/10/2008. Oladele Gbadeyan, learned lead counsel for the Appellant in urging this Court to allow the appeal relied on and adopted Appellant’s brief of argument dated 30/9/2005 but deemed as properly filed and served on 26/4/2006 as well as Appellant’s Reply brief dated 22/11/2007 but deemed as properly filed and served on 27/11/2007.

Paul Ahmed Bassi of counsel for the Respondent in urging that the appeal be dismissed relied on and adopted Respondent’s brief of argument dated 12/12/2006 but deemed as properly filed and served on 21/5/2007.

In his brief of argument the Appellant formulated two (2) Issues for the determination of the appeal. The Issues are: –

“1. Whether the learned trial judge was right in delivering the ruling in the Judge’s chambers having regard to the provisions of the Constitution of the Federal Republic of Nigeria, 1999. (Encompassing ground 1)

2. Whether the learned trial Judge was right in holding that the Attorney-General of the Federation has deemed right under section 61 of Act (sic) which is irrebuttable presumption of law to prosecute the Appellant having regard to Exhibits “A” and “B” attached to the Motion on Notice which exonerated him from culpability in the offence charged. (Encompassing grounds 2 and 3)”

In view of the decision of the lower court; the contentions of parties in the said court; and Appellant’s grounds of appeal, the Respondent likewise formulated 2 (two) Issues for the determination of the appeal in its brief of argument.

They read thus: –

“i. Whether the Ruling of the learned trial Judge can be said to be a nullity for being purportedly delivered in chambers.

II. Whether or not exhibits ‘A’ and ‘B’ attached to the Appellant’s motion on notice that gave rise to this appeal has (sic) the effect of exonerating the appellant of the charge against him before the trial Court.”

I shall determine the appeal on the Issues formulated by the Respondent as they address the grouses in the grounds of appeal better.

ISSUE 1: Whether the Ruling of the learned trial Judge can be said to be a nullity for being purportedly delivered in Chambers.

Dwelling on the Issue relating to the nullity of the Ruling delivered by the learned trial Judge on 28/4/2005, the Appellant in the main submitted that the learned trial Judge acted in error when he delivered the said Ruling in his chambers. And that he breached the provisions of section 36(6) of the 1999 Constitution by so doing as the delivery of judgment/ruling of a court is part of the hearing of a matter. The provision of the Constitution breached by the learned trial Judge the Appellant argued is a mandatory one which goes to the root of the entire proceedings. The cases of Nigeria-Arab Bank Ltd vs. Barri Engineering Nigeria Ltd (1995) 8 NWLR (Pt, 413) 257 at 260-261; Alhaji Salawu & Ors V5. Adza (1997) 11 NWLR (Pt. 527) 14 at 21; Ogele VS. Nuhu (1997) 10 NWLR (Pt. 523) 109; and Menakaya vs. Menakaya (2001) 16 NWLR (Pt. 738) 203 were cited in aid of the submission.

The Appellant submitted that open court is a court session where the public is free to attend. It was further submitted that the delivery of judgment or ruling of a court in chambers out of the full glare of the public is unconstitutional and vitiates the entire proceedings. The cases of NAB Ltd v. Barri Eng. (Nig.) Ltd (supra) at pages 273 & 285; Salawu vs. Adza (supra) at pages 20-21; Audu vs. Alabo (2000) 6 NWLR (pt.661) 482 at 492; Mika’ilu vs. State (2001) 8 NWLR (pt. 715) 469 at 484; as well as the definition of “public” as set out in Black’s Law Dictionary 7th Edition at page 1242 were cited in aid of the submission. The Respondent in dwelling on the Issue under consideration, submitted that the Ruling being appealed against was delivered in compliance with the constitutional requirement relating to the delivery of judgment and that there was nothing in the Record of the lower court showing or indicating the violation of the constitutional provision the Appellant relies upon in urging that the Ruling being appealed against be declared a nullity. The Respondent stressed that parties are bound by the Record of Appeal and that the Record of Appeal in the instant matter showed dearly and unambiguously that the business of the lower court and -delivery of the ruling of the learned trial Judge were not conducted in chambers as the Appellant would want this Court to believe. The case of Nwankwo vs. Anieto (2002) 2 NWLR (Pt. 752) 729 at 738 was cited in aid.

The Court was urged to discountenance all the cases relied on by the Appellant in urging this Court to nullify the Ruling of the lower court as they are not applicable inasmuch as there has been no breach of any constitutional provision by the learned trial Judge in his handling of this case.

In his Reply brief to the brief of argument of the Respondent, the Appellant submitted to the effect that the presumption of genuineness of a court’s record was not absolute as it can be rebutted by facts which show or tend to show that what is contained in the record does not quite reflect the true state of affairs. It was further stated that the Appellant has taken the course laid down in law for this purpose and that it is for this Court to resolve the matter and act on the same as resolved by it.

It is no doubt the position of the law, that the record of proceedings of a court is recognized as being the only indication of what took place in court. This is however not to say that the record of proceedings of a court is always sacrosanct. This is definitely not the case. This is because the law allows any party to the proceedings to contest or impugn the validity of the record of proceedings of a court. To do this, the party contending that the record of proceedings before an appellate court is not a fair record of what happened at the court of first instance must formally impeach the same and if it is successfully impeached then the appellate court will act on the record of proceedings as shown that It ought to have been. See CYRIACUS OGIDI & ORS V. THE STATE (2005) All FWLR (Pt. 251) 202 at 216.

The procedure laid down by law for impugning the record of proceedings of a court is for the party challenging the same to swear to an affidavit setting out the fact that was omitted or wrongly stated in the record. Such affidavit is to be served on the Judge and/or the Registry of the court concerned as well as counsel on the other side. See GONZEE NIGERIA LTD V. NIGERIAN EDUCATIONAL RESEARCH AND DEVELOPMENT COUNCIL & ORS (2005) All FWLR (Pt. 274) 235 at 245; and UNITED BANK FOR AFRICA PLC V. SAMUEL IGELLE UJOR (2001) 10 NWLR (Pt. 722) 89 at 600-601.

The complaint of the Appellant and in respect of which his counsel – Jacob Brown Udobang has on 29/6/2006 deposed to an affidavit impugning the record of proceedings of the lower court, is simply to the effect that the Ruling in the application dated 24/1/2005 was delivered on 28/4/2005 by the learned trial Judge in his Chambers. And that the learned trial Judge did not capture the fact of the delivery of the said Ruling in his Chambers in the record of proceedings. In the affidavit in question, it was disclosed that though the Ruling in the application dated 24/1/2005 was initially adjourned till 6/4/2005; the said Ruling was not delivered on the day as the court did not sit. It was on 6/4/2005 further adjourned till 28/4/2005. That on 28/4/2005 the learned trial Judge acting through the court clerk – Mr. Salisu Idaehe invited the accused persons; their counsel namely, J.B. Udobang (i.e. the deponent) and A.A. Ekuma respectively; and sanusi Kado, the prosecution counsel to his chambers and thereat delivered his considered Ruling dated 28/4/2005. That the trial Judge in doing this, did not capture the fact – that he delivered the Ruling in Chambers in the record. The Appellant and the 2nd accused person in the charge before the lower court – Mr. Ebeke Owora respectively on 29/9/2006 both swore to affidavits impugning the record of proceedings of the lower court. The affidavits in question are basically the same. And all that was deposed to therein is no different from what J.B. Udobang deposed to in his own affidavit.

The Respondent caused to be filed on 25/5/2007 a counter affidavit deposed to by Nuruddeen H. Adam in which it was denied that the learned trial Judge asked the accused persons and counsel into his chambers to deliver the Ruling of 28/4/2008. It was disclosed that the Ruling delivered on the day was delivered in the open court after the matter was called and appearances taken and that the record of proceedings was a true and accurate representation of what happened in court on 28/4/2005. Mr. Salisu Idache the court clerk to the learned trial Judge equally swore to and filed a counter affidavit on 25/5/2007.

In the counter affidavit, he denied that the learned trial Judge sent him to call/invite learned counsel to his chambers. He also stated that the Ruling delivered on 28/4/2005 by the learned trial Judge was not delivered In chambers and that the record of proceedings was a true reflection of what transpired in court on the said day.

The Appellant’s counsel filed a “Reply to the Counter Affidavit of Salisu Idache” and in It stated for the first time that Mr. Salisu Idache in inviting them to attend the chambers of the learned trial Judge informed them that His Lordship was not feeling well and would like to see them in chambers. It was further deposed to by learned counsel that those matters which were heard in the open court are clearly contained In the record of appeal and that the proceedings of 28/4/2008 are not contained therein because it was not heard in the open court.

I am aware of the position of the law as to how to go about resolving any conflict in respect of a material fact when there are conflicting affidavit evidence in respect of the same. It is however also the law that when the totality of affidavit evidence presented by a party is self conflicting then there is actually nothing that requires clarification or resolution by the calling of oral evidence. It is amazing that it was not until the clerk to the learned trial Judge filed a counter affidavit in this matter that Appellant’s counsel suddenly remembered and then deposed to a Reply to Counter Affidavit in which he now alleged that the said clerk in asking them to attend the learned trial Judge’s chambers on 28/4/2005 told them that His lordship so requested them as he was not feeling well. To cap it all, learned counsel for the Appellant also deposed that the matters that were duly heard in the open court are dearly contained in the record of appeal while the proceedings of 28/4/2005 are not contained therein because the matter was not heard in the open court. I have diligently scrutinized the record of appeal on which Appellant’s counsel has himself relied, and unless Appellant’s counsel is referring to some other record, then I make bold to say that not only is the proceeding of 28/4/2005 duly contained at pages 17-19 of the Record of Appeal but that the recording of the proceeding for the said day is in the same style in which proceedings for other days were recorded. May, I also say that I have scrutinized the content of the original case file of the lower court in respect of this matter attached to the case file of this appeal and I see therefrom that the proceedings at pages 17-19 of the Record of Appeal is indeed a true reflection of what is contained in the manuscript of the lower court at pages 32-35 of its case file; Given all that I have said, I therefore do not find the Appellant to have successfully impeached the record of proceedings of the lower court that was transmitted to this Court. As the correctness of the record of appeal. before this Court has not been successfully impugned, the issue formulated by the Appellant concerning the delivery of the Ruling of 28/4/2005 by the learned trial Judge in chambers is rendered baseless and thereby liable to collapse as the ground of appeal from which it is derived finds no support in the record of proceeding.

ISSUE 2: The question raised under this Issue is whether or not Exhibits ‘A’ and ‘B’ attached to the application of the Appellant dated 24/1/2005 has exonerated him of the Charge now preferred against him,’.

Dwelling on this Issue, the Appellant submitted that the Attorney-General of the Federation (hereinafter simply referred to as “the A-G of the Federation”) has the power to initiate criminal proceedings against any person and can also delegate the power In that regard pursuant to the provisions of section 174 of the 1999 Constitution. It was also submitted by the Appellant that the prosecution at the trial court is pursuant to the Corrupt Practices Act (hereinafter simply referred to as “the ICPC Act.) which established the ICPC and not a delegation by the A-G of the Federation. The ‘concept of deeming’, in section 61 of the Act it was contended, is a rebuttable presumption and it means delegated power to prosecute and deemed power not to prosecute. Therefore where there is evidence of the exercise of the power not to prosecute, it is deemed that the prosecution is not interested and if it proceeds, this amounts to abuse of the process of court by the prosecution. It was submitted that the Appellant is being subjected to double jeopardy by being investigated and prosecuted for the same offence, given the Police Report – Exhibit”8′ attached to the motion which cleared him of any offence. In this regard it was equally stated to the effect that Exhibit ‘A’ attached to the Appellant’s motion came from the office of the A-G of the Federation inasmuch as it was issued by the DPP acting for the said A-G. It was submitted that the Police has wide powers under the Constitution to investigate crimes and prosecute offenders and that the power of investigation possessed by the ICPC pursuant to the provisions of the ICPC Act cannot override those of the Police under the Police Act.

That if there is a conflict in the powers of investigation possessed by the Police and the ICPC, the powers of the Police supersede those of the ICPC as the Police Act is derived from the Constitution while the ICPC Act is an Act of the National Assembly. The case of A-G Ondo State vs. A-G Federation (2002) 9 NWLR (pt. 772) 222″at 418-419 and 462 was cited in aid of the submission.

Dwelling on the word “deemed” as used in section 61 of the ICPC Act, the Appellant submitted that the same was ambiguous and in this regard referred to legislative Drafting by G.C. Thornton 3rd Edition at pages 86- 87 as showing the position of the law when the word ‘deemed’ is used in a statute. It was submitted by the Appellant that the purported “deemed” power to prosecute under section 61 of the Act had been rebutted by Exhibits ‘A’ and ‘B’ which exonerated him, since the word “deemed” as used under section 61 of the ICPC Act is presumption of law that can be rebutted by facts.

The Issue under consideration according to the Respondent relates to the powers of the A.G of the Federation to prosecute and the legal effect of the advice of the DPP and Police exonerating the Appellant.

It was submitted that the A-G of the Federation not only has the power to prosecute the Appellant under the law he has been charged, but also that the learned trial Judge granted, the prosecution leave to file charges against the Appellant after he was satisfied that the offences with which the Appellant was charged fell within the A-G’s power to prosecute.

The situation therefore shows that the prosecution of the Appellant was initiated by the A.G of the Federation through an officer in his chambers and this is in compliance with the provisions of section 174 of the 1999 Constitution. The case of State vs. Ilori (1983) 2 SC 155 was cited in aid. It was further submitted that only the A-G of the Federation can complain concerning the validity or otherwise of the exercise of his powers of prosecution on his behalf as the power of the A-G derived under section 174 of the Constitution is not inhibited by any limitation and control.

The word “deemed” as used in section 61 of the Act, the Respondent submitted means that every prosecution under the said Act is undertaken by the A.G. The word “deemed” as used in section 61 of the Act, according to the Respondent has not created any ambiguity as the A-G of the Federation has the absolute power as the Chief Legal Officer to prosecute offences created by the Acts of National Assembly.

Dwelling on the power of investigation of the ICPC, the Respondent submitted that the power in that regard is in no way limited by Police powers. It is the submission of the Respondent that the power of the ICPC to investigate the commission of offences are co-extensive with those of the Police under the Police Act and do not usurp the powers of the Police under section 214 of the 1999 Constitution and are also not in conflict at all. The power of the ICPC to receive, investigate and prosecute any person for offences under the ICPC Act, the Respondent submitted is not unconstitutional and the power of the ICPC to initiate proceedings is fortified when it appreciated that the power of the A-G of the Federation to prosecute offences is not exclusive. The cases of A-G Ondo State vs. A-G Federation (supra) and Compt. N.P.S. vs. Adekanye (2002) Vol. 11 M.J.S.C. 65 at 92 were cited in support of the submissions. The exoneration of the Appellant, the Respondent submitted, therefore cannot bar the prosecution of the Appellant, more

so when the offences with which the Appellant is charged are not the same with the offences in respect of which he was exonerated.

It was submitted by the Respondent that the defence of double jeopardy can only be available to the Appellant if and only if he is able to show that the exoneration was by a court of competent jurisdiction. To buttress the point that the offences in respect of which Exhibit B was issued are different from the offences in the charge preferred against the Appellant, the Respondent referred to paragraph 1 of the letter written by the Assistant Inspector-General of Police (CID) to the Commissioner of Police A Department FCT Police Command which shows that the case in “respect of which the Police exonerated the Appellant was that of criminal breach of trust reported by one Miss Susan Jimoh and Miss Khadijat Yusuf both of c/o Mr. Essien O.N. Legal Unit, Federal Ministry of Anance Abuja. The Respondent further submitted to the effect that the A-G of the Federation is the only authority that has the power to discontinue the charge preferred against the Appellant and that this the A-G can do in person or through an officer in his Chambers armed with written authority in that regard. Section 174(1)(c) of the 1999 Constitution was referred to in this regard.

The motion dated 24th January, 2005 filed by the Appellant is at pages 45-47 of the Record while the affidavit in support of the motion is at pages 48-51. The orders sought in the motion are: –

“1. An order quashing the charges preferred against the 1st accused/applicant contained in Charge No. CR/8/0S (sic).

IN THE ALTERNATIVE

2. An order inviting amici curia to address the court on the competence or propriety or otherwise of the charges preferred against the applicant by the Independent Corrupt practices (sic) and other Related Offences Commission (ICPC), the 1st accused person/applicant, having been exonerated from the allegations constituting the present charges by the Nigerian (sic) Police Force and the office of the Director of Public Prosecution (DPP) of the Federation under which the ICPC derived its prosecutorial power.”

The grounds of the application are 15 in all. As I consider grounds 5-15 germane I now reproduce them:

“5. The 1st accused person by reason of his position aforementioned became the Executive Officer of the Clinic.

6. That sometime in 2003, some individuals serving as Youth Corpers in the Federal Staff clinic wrote a petition against the 1st accused person.
7. The gist of the said petition in a nutshell, was on the allegations of misappropriation of funds meant for allowances due to some Medical Officers in the clinic.
8. The same petition in issue was copied to the Independent Corrupt Practices and other related Offences Commission (ICPC).
9. The Nigeria Police Force, upon receipt of the said petition, swung into a full scale investigation by inviting the 1st accused person and other colleagues of the 1st accused person.
10. That the Nigerian Police Force sought for the advise (sic) of the office of Director of Public Prosecution (DPP) vide a letter dated 30th July, 2004 on the same petition.
11. The Nigerian Police Force in late January, 2003, (sic) informed the 1st accused person/applicant that from its findings based on the investigation, the 1st accused is exonerated from any culpability with respect to the allegations contained in the aforementioned petition.
12. That despite the clean slate report in favour of the 1st accused, one Bulus Inuwa of the Independent Corrupt Practices and other Related Offences Commission invited the 1st accused person/applicant and continued to harass the 1st accused person/applicant in respect of the same allegation for which he has been exonerated by both the office of the DPP and the Nigerian Police which is to the knowledge of the ICPC
13. The action of the ICPC aforementioned necessitated the filing of Suit No. FHC/ABJ/CS/97/2003, to inter-alia, test the Constitutionality of the accused person being tried by ICPC in respect of the same allegation for which he has been cleared by both the DPP office and the Nigerian Police.
14. The Independent Corrupt Practices and other Related Offences Commission has now preferred a charge against the 1st accused person before this court on the same allegations in respect of which the 1st accused person has been exonerated.
15. That during the said period of investigation by the Nigerian Police Force, the ICPC were (sic) aware of same,”

The Appellant has “argued to the effect that the word “deemed” used in section 61 of the ICPC Act did not create an irrebuttable presumption of law as held by the ‘learned trial Judge, and therefore he is at liberty to show that the preferment of the instant Charge against him did not have the consent of the A-G of the Federation. This according to the Appellant is in view of Exhibits ‘A’ and ‘B’ attached to the motion of 24/1/2004 which have exonerated him of any offence thereby making the instant prosecution an abuse of court process.

The provision of section 61(1) of the ICPC Act which is in contention reads thus:-

“Every prosecution for offences under this Act or any other law prohibiting bribery, corruption and other related offences shall be deemed to be done with the consent of the Attorney-General”

Dwelling on the provision set out above, the lower court in its Ruling said thus:-

“(1) I refuse to agree with the Learned (SAN.) that the word “DEEM” as used under Section 61 of the ICPC – Act, is a presumption of facts my view is that it is a presumption of law and therefore irrebuttable presumption contrary to the submission of counsel to the Applicant. And having held that view, the argument as canvassed on the basis of Exhibits A & B attached to the applicant’s motion paper becomes irrelevant.

(2) In other words the ICPC can initiate proceedings having been deemed as acting on behalf of the Federal Ministry of Justice by operation of law.”

It is not in doubt that the law recognizes both presumption of fact and presumption of law. Presumptions of law can be further classified into irrebuttable and rebuttable presumptions. T. Akinola Aguda in his Book titled law And Practice Relating to Evidence in Nigeria (2nd Edition) dealt with Presumptions. Dwelling on Irrebuttable Presumption of Law at paragraph 19,04 on page 287 the learned author stated thus: –

“Irrebuttable presumptions of law are to the effect that if a certain fact is proved, then the court must draw a certain conclusion from the proved fact. Evidence in rebuttal of such conclusion is inadmissible. According to section 4(c) of the Act (i.e. Evidence Act):

when one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of the fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

Dwelling also on presumptions of law and presumptions of facts at paragraph 19.09 on pages 288.289, the learned author stated: –

“It is sometimes exceedingly difficult to distinguish between rebuttable presumption of law and presumption of fact. They can be distinguished as follows: (a) A presumption of fact is one which

is dependent upon logically reasoning and which a court is free to draw if it so likes. A presumption of law on the other hand is one prescribed by law, and which must be drawn in the absence of any evidence to the contrary. (b) The conditions of the application of a presumption of law are fixed and uniform and in consequence it alters the burden of proof of an issue whilst the application of a presumption of fact is governed by the facts of each case and does not necessarily alter the burden of proof. (c) Presumptions of law are drawn by the judge whilst presumptions of facts are drawn by the jury who may refuse to apply a presumption in a particular case.”

Bearing the above in mind, I am of the settled view that the use of the word “deemed” in section 61 of the ICPC Act definitely does not create a presumption of fact but one of law that any prosecution undertaken under the ICPC Act is being so undertaken with the consent of the A-G of the Federation. The presumption created in this regard by operation of law simply relieves the prosecution of having to establish the fact that the consent of the Attorney-General was first obtained before the same was undertaken. I however do not understand the presumption to be an irrebuttable presumption of law that precludes evidence being led to establish that the Attorney-General did not in fact give his consent in respect of a particular prosecution undertaken under the Act. It is to be appreciated that to hold that the presumption created by the use of the word “deemed” is an irrebuttable presumption of law as the lower court did, is to create a situation where prosecutions can be undertaken under the ICPC Act even when the office of Attorney-General of the Federation is vacant for any reason. Surely this cannot be the intendment of the law.

From all that has been said, I therefore find the lower court to be right in holding that the word “DEEMED” as used in section 61 of the ICPC Act, creates a presumption of law but wrong in holding that the presumption of law is an irrebuttable one. I hold that it is a rebuttable presumption of law that the word “deemed” as used in section 61(1) of the Act creates.

It is to be noted that Charge dated 15/11/2004 preferred against the Appellant for, offences under the ICPC Act was signed by one Mrs. C.I. Onuogu, Assistant Director, for the Honourable Attorney-General of the Federation. Now, did the Appellant show that the said Charge was preferred without the consent of the Attorney-General? What the Appellant rely upon in this regard are Exhibits ‘A and ‘B’ attached to the application dated 24/1/2004. Exhibit ‘B’ is a Police Investigation Report dealing with the allegation of Criminal Breach of Trust levelled against the Appellant by one Susan Jimoh and Miss Khadijat Yusuf respectively.

The opinion which concluded the Report written by one AN Hiesiaba, an ACP to the CP, FCT Police Command, Abuja, reads: –

“Having understood the intricacies of the whole matter, the claim by the petitioners cannot be substantiated. This is as a result of the reply from the Federal Ministry of Health Abuja with Ref No. DES/04/NV/396/16 dated 27/12/02 and signed by one SA Suleiman for the Permanent Secretary which indicates that the said N7,082,379.00 was not diverted and it was used genuinely and that the Corpers are not entitled to the money they petitioned for.

The report further exonerated the suspect (Doctor) of any wrong doing. In the light of the above therefore, it is suggested that the case be treated on its merit and the Corpers be advised to back to the Ministry if they have any other claims. Meanwhile above is submitted for your information and further directives, please.”

Exhibit ‘A’ is a letter under the hand of the Ag. DPP of the Federation for the A-G of the Federation addressed to the CP, FCT Command Headquarters in which it was stated to the effect that the case against the accused cannot be substantiated in a court of law and that the case is to be discontinued against the suspect (i.e. the Appellant). It is on the basis of these Exhibits that the Appellant has argued that “where there is “evidence of the exercise of power not to prosecute, it is

deemed that the prosecution is not interested and if it proceeds, it amounts to an abuse of court process by the prosecution”.

Definitely the presumption created by section 61(1) of the ICPC Act concerning the deemed consent of the A-G of the Federation inures for the prosecution in the instant matter by the very fact that the Charge preferred against the Appellant was preferred by a law officer acting for the said A-G in the absence of concrete rebuttal evidence (such as the fact that the office was then vacant and that there was no one appointed to ad in the office) and which is for the Appellant to show.

Before now, I have set out the opinion in Exhibit ‘6’ and also stated in brief what Exhibit ‘A’ contains. Exhibit ‘6’ according to the Appellant cleared him of any offence. This cannot be. The Exhibit can only clear the Appellant of the offence that was investigated by the Police and the offence was one of criminal breach of trust. The legal advice (i.e. Exhibit ‘A’) that was issued in consequence of Exhibit ‘B’ can only be in relation to the offence which the Police investigated, i.e. one of criminal breach of trust. The reliance placed by the Appellant on the doctrine of double jeopardy would appear to be completely misplaced having regard to what the doctrine’ connotes, This is what Black’s Law Dictionary Seventh Edition has to say about double jeopardy at page 506: –

“Double jeopardy. The fact of being prosecuted twice for substantially the same offense. Double jeopardy is prohibited by the Fifth Amendment. a Former jeopardy.”

And at page 663 Former jeopardy” is stated to be: –

“The fact of having previously been prosecuted for the same offense. A defendant enters a plea of former jeopardy to inform the court that he or she should not be prosecuted again.”

The concepts of double jeopardy” and “former jeopardy” are equally recognized by our constitution. In this regard is section 36(10) which provides thus:-

“No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court.”

It is clearly not the case of the Appellant given the grounds of his application dated 24/1/2005 and affidavit evidence in support thereof, that he was ever tried in respect of any offence talk less of such offence being the same with or having the same ingredients as those in Charge No. CR/8/04. If that was so, nothing would have been simpler than for the, Appellant to have exhibited such a, Charge or Indictment and the decision thereon, to the instant application. The concept of “double jeopardy” does not’ apply to investigation of alleged offences; neither does the provision of section 36 (10) of the Constitution. In the circumstances the reliance placed by the Appellant on Exhibits ‘A’ and ‘B’ attached to the application dated 24/1/2005 as rebutting the presumption of law that the prosecution initiated against him under the ICPC Act is with the consent of the A-G of the Federation is most tenuous and cannot sustain an order quashing the charges preferred against the Appellant in Charge No. CR/8/04 as prayed.

From all that has been said, I therefore do not find Exhibits ‘A’ and ‘B’ attached to ‘the’ application of the Appellant dated 24/1/2005 to have exonerated him of the Charge now preferred against him.

It is to be noted that the lower court in its Ruling and in apparent agreement with the submission of Respondent’s counsel that the charge against the Appellant is different from the accusations made to the Police and which was the subject of the advice of the DPP as shown in Exhibits A and B, held that the Appellant’s application failed and dismissed the same. I definitely find the lower court to have acted correctly by dismissing the application dated 24/1/2005 given all that I have said before now.

In conclusion I find this appeal to lack merit. It is accordingly dismissed.

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Other Citations: (2009)LCN/3092(CA)