Sunday Gabriel Ehindero V. Federal Republic Of Nigeria & Anor (2017)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

At the High Court of the Federal Capital Territory the appellant and one other are defending a 6-count charge alleging conspiracy to criminally convert public funds and criminal conversion of public funds totalling N16,412,315.00 being interests generated from two fixed deposit accounts.

The Bayelsa State Government made a donation of N557,995,065.00 to the Nigeria Police Force (NPF), at the time the appellant was the Inspector General of Police, to enable the NPF purchase equipment for proper policing of Bayelsa State. It appears from the summary of the statement of Olayinka Ayegbayo, an investigator with the Independent Corrupt Practices and other Offences Commission (ICPC), that the appellant and the 2nd Accused had agreed to place and did place N300,000,000.00 and N200,000,000.00 into fixed deposits respectively at Wema Bank Plc and Intercontinental Bank Plc. The two fixed deposits allegedly netted a total of N16,412,315.56 as interests. Mr. Ayegbayo, listed as a witness in the proofs of evidence, would, at the trial, testify inter alia that: when the President of the Federal

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Republic of Nigeria directed the appellant to transfer the money donated by the Bayelsa State to the Federal Ministry of Police Affairs to make the necessary purchases for the Police, the appellant delayed his compliance with the presidential directive until after the maturity of the fixed deposits. When in November 2006, the appellant caused the principal sum donated by the Bayelsa State Government to be transferred to the Ministry of Police Affairs the interests earned from the fixed deposits were not transferred with the principal sum. It is alleged that the appellant and his co-accused conspired and criminally converted the said interests totalling N16,412,315.56 to their personal use. The conversion of this sum forms the crux of the 6 charges the appellant and the co-accused are defending at the High Court of the Federal Capital Territory.

The prosecution has listed Mr. Ayegbayo and three bank managers to testify at the trial. The summary of the proposed evidence is attached to the proofs of evidence. The list of Exhibits to be tendered together with the extra judicial statements of the accused persons, the appellant’s inclusive, are also

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included in the proofs of evidence.

On 6th June, 2012, the appellant filed a motion on notice, by way of preliminary objection, wherein he prayed the trial Court for the following orders-

1. AN ORDER of this Court dismissing and/or striking out the amended charge for want of jurisdiction.
2. AN ORDER of this Honourable Court quashing the amended charge against the Accused/applicant for want of competency.
3. AN ORDER of this Honourable Court debarring Mr. Paul Ahmed Bassi or any official of the Independent Corrupt Practices and other Related Offences Commission from prosecuting the 1st Accused/Applicant, they having no constitutional power to do so,

OR

4. AN ORDER of this Honourable Court setting aside its order of 31st May, 2012 granting leave to the complainant/Respondent to prefer charge No. FCT/HC/CR/92/12 against the Accused/Applicant.

The application was predicated on the following 12 grounds.

1. It is the Federal High Court that has jurisdiction to entertain the amended charge preferred against the 1st Accused/Applicant. Section 251(1)(a) of the 1999 Constitution as altered gives the Federal High Court

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Jurisdiction over civil matters relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party, or is interested.

2. The Respondent having shown by the wide publicity given to the case of the 1st Accused/Applicant in the world media and on internet even before obtaining the leave of Court to prefer the amended charge and before the 1st Accused/Applicant’s arraignment has demonstrated that it can only be a persecutor and not an unbiased, uninvolved prosecutor.
3. Section 251(3) of the 1999 Constitution, as altered, provides that the Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by, Subsection (1) thereof.
4. The criminal jurisdiction of the Federal High Court derives from its civil jurisdiction as contained in Section 251(1)(a).
5. The parties and subject matter in this amended charge fall squarely under the jurisdiction of the Federal High Court not the FCT High Court.
6. The Corrupt Practices and other

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Related Offences Act, 2000 under which the amended charge is brought is unconstitutional as same was abrogated by the Corrupt Practices and other Related Offences Act, 2003 and is still an issue for judicial determination, having been referred back to the Court by the Apex Court of Nigeria.

7. The proof of evidence discloses no prima facie evidence against the Accused/applicant.
8. The Court wrongly exercised its discretion by granting leave to the prosecution to prefer the amended charge against the Accused/Applicant.
9. The offence alleged is not disclosed by the statement of witnesses or proof of evidence and there is nothing linking the Accused person whatsoever with the amended charge upon which he can be called upon to explain his own position.
10. The amended charge is a complete abuse of Court process as the Court apparently granted consent to prefer the amended charge in the absence of information linking the Accused with the amended charge. There is no nexus whatsoever between the 1st Accused and the amended charge or any of the offences mention therein.
11. The accounts in the amended charge are not tied to the offending

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section of the act such as to enable the Court deal with specific criminal conduct.

12. The offences are not known to law.

The trial FCT High Court (Coram: M.N. Oniyangi, J) heard the application on 21st September, 2012. In the reserved ruling delivered on 21st September, 2012, the learned trial judge dismissed the application in its entirety. The appellant’s appeal against the decision of the trial Court was also dismissed by the Court of Appeal sitting at Abuja on 14th January, 2014. The lead judgment of A. A. Adumein, JCA was unanimously concurred by A.D. Yahaya and T. Akomolafe-Wilson, JJCA. This further appeal is against the order of the lower Court dismissing the appeal No.CA/A/S51C/2012.

This appeal was argued on three (3) issues. I have decided to condense the issues from the 3 issues submitted by the appellant and the 1st respondent. The 2nd respondent did not file any brief. His counsel, at the hearing of the appeal on 4th October, 2017, conceded that they filed no brief. The 3 issues are:

1. Whether the High Court of the FCT has the requisite jurisdiction to try the appellant for the offences created by the Corrupt Practices

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and other related Offences Act, 2000.

2. Whether the charges and the Proofs of Evidence before the trial Court disclose any prima facie case against the appellant to warrant the leave granted and the arraignment of the appellant for the offences charged.
3. Having regards to the provisions of Section 6(a), 26(2) and 61(1) of the Corrupt Practices and other Related Offences Act, 2000, whether the Independent Corrupt Practices and other Related Offences Commission (ICPC) and its officers can initiate and prosecute the appellant for offences under the Corrupt Practices and other Related Offences Act, 2000.

The gravamen of the appellant’s case on issue 1 is that the interests accruing from fixed deposits totalling N16,412,315.56, allegedly, criminally converted by the appellant and the co-accused constitute an item of revenue accruable to the Federal Government of Nigeria. The appellant therefore contended that as such only the Federal High Court, by dint of Section 251(1)(a) and (3) of the Constitution, as amended, to the exclusion of the High Court of the FCT, has jurisdiction. In other words, that by the extant provisions of Section 251(1)(a) and

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(3) of the Constitution, as amended, the Federal High Court is the appropriate Court to hear and determine criminal causes and matters arising from the issues that relate to the revenue of the Federal government of Nigeria. The two Courts below had expressed contrary opinion in their dismissal of this contention. The lower Court held the opinion that reading Sections 251(1)(a)-(s) and 257(1) of the Constitution together with Sections 61(3) of the Corrupt Practices and other Related Offences Act, 2000 (Anti Corruption Act, 2000) clearly shows that the Federal High Court and the High Court of the FCT have concurrent jurisdiction.

The additional jurisdiction vested on the Federal High Court by Subsection (3) of Section 251 of the Constitution is not synonymous with the exclusive jurisdiction vested on it by Section 251(1)(a) of the same Constitution. This is clear from the two provisions which are herein below reproduced.

251. (1) Notwithstanding anything, to the contrary in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise

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jurisdiction to the exclusion of any other Court in civil causes and matters-

(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;

(3) The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by Sub-section (1) of this Section.

The word “also” as used in Subsection (3) of Section 251 of the Constitution connotes or means “in addition; too, or as well”. According to Oxford Advanced Learner’s Dictionary 7th ed.; Burton’s Legal Thesaurus 3.d ed, page 27 and Oxford Dictionary of English, 3rd Ed, page 46. According to Oxford Advanced Learners Dictionary, the word also is an adverb, not used with negative verbs and it is more formal than “as well” or “too”. Much as I agree with the appellant that the word also, as an adverb, means “in addition”; I do not go any further to agree with him to conclude that the additional jurisdiction vested in the Federal High Court by Section 251(3) of the Constitution “in

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respect of criminal causes and matters in respect of which” jurisdiction is conferred by Subsection (1) of the Constitution is co-terminus with the exclusive jurisdiction vested in the Federal High Court in respect of “civil causes and matters”. The appellant has, in my view, read and interpreted Section 251(3) of the Constitution with a gloss thereon against all known or acclaimed canons of interpretation.

The function of the Judex is simply jus dicere, and not jus dare. Accordingly this Court, in D. E. OKUMAGBA v. EGBE (1965) 1 ALL NLR 62, had condemned any attempt by a Court of law embarking on judicial legislation by reading into the provision of a statute words that are not there, or which words are not contemplated by the law maker. Thus, as the Court of Appeal had rightly stated in EDOZIE v. EDOZIE & ORS (1998) 12 NWLR (pt.580) at 152.

“Courts should not read into an enactment words which are not to be found there and which will alter its operative effect.”

It is an established cardinal principle of interpretation that the words of the statute which are unambiguous, must be given their ordinary grammatical meaning. It is therefore,

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no function of the Court to import words into the statute which do violence to the intent and meaning of the statutory provision. See EGBE v. ALHAJI & ORS (1990) 21 NSCC (pt.1) 306 at 325; (1990) 1 NWLR (pt. 128) 546 at 581.

The clear intent and purpose of Section 251(1)(a) of the Constitution, as amended, are to vest exclusive jurisdiction on the Federal High Court, as the successor of the defunct Federal Revenue Court, only in respect of “civil causes and matters relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party”. The jurisdiction conferred on the Federal High Court by Section 251(3) of the Constitution “in respect of criminal causes and matters in respect of which jurisdiction is conferred” by Section 251(1) is not a jurisdiction to the exclusion of any other Court. If it were intended to be so it would have been so stated expressly in the Constitution.

I completely agree with the lower Court when they stated the law correctly thus –

“The provisions of Section 251(3) of the Constitution – 1999 are clear,

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plain and unambiguous and effect must be given to the ordinary meaning of this constitutional provision. See the case of CHIEF GANI FAWEHINMI v. INSPECTOR-GENERAL OF POLICE & 2 ORS (2002) 5 SC (PT. 1) 63 at 80; (2007) 7 NWLR (pt. 767) 60 at 680 where Uwaifo JSC held, on the proper approach to interpretation of Constitutional provisions, that:

When the terms are plain and involve no ambiguity there must be given their meaning upon the ordinary and surrounding circumstances.”

My interpretation of Section 251(1)(a) & (3) of the Constitution, as amended, is; that the two provisions do not vest exclusive jurisdiction in respect of criminal causes or matters as they relate to, or are in respect of all those civil causes or matters in Section 251(1) of Constitution over which the Constitution has conferred or vested in the Federal High Court, as a civil Court, “jurisdiction to the exclusion of any other Court in CIVIL CAUSES AND MATTERS”. The emphasis placed on “civil causes and matters” in Section 251(1) of the Constitution is intentional or purposive. The exclusive jurisdiction vested in the Federal High Court has emphatically been qualified by the

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words “in civil causes or matters”. The appellant, clearly, is in error and misconception when he criticized the lower Court for falling “into grave error when it held that no such word as “exclusive jurisdiction appeared in Section 251(3) of the Constitution”. The lower Court was right. The appellant is wrong on this.

The lower Court had further alluded to the general jurisdiction vested in the High Court of the FCT by Section 257(1) of the Constitution “to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person”. Section 251(1) of Constitution which limits the exclusive jurisdiction of the Federal High Court to “civil causes and matters” is not relevant for the purpose of Section 257(1). On the other hand, both Sections 251(3) and 257(1) of the Constitution, speak to the criminal jurisdiction of the High Court of the FCT. When the two provisions are read together, it makes some point in the sense that the Constitution does not intend to vest or confer exclusive jurisdiction on the Federal High Court to entertain criminal causes or

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matters in respect of those matters mentioned in Section 251(1) Constitution as they pertain to the civil jurisdiction of the Federal High Court. In respect of those criminal causes or matters, the Constitution itself has deliberately or intentionally permitted other High Courts, including the Federal High Court, to exercise jurisdiction. For emphasis Sections 251(3) and 257(1) of the Constitution are herein below reproduced.

Section 251 (3). The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by Subsection (1) of this Section.

Section 257 (1). Subject to the provisions of Section 257 and any other provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court Territory, of the Federal Capital Territory Abuja, shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or

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relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

Sub-Section (3) of Section 251 of the Constitution is the provision that statutorily empowers or enables the Federal High Court to exercise Criminal Jurisdiction in respect of the causes and matters that Subsection (1) of Section 251 of the Constitution has vested exclusive jurisdiction on the Federal High Court to deal with as a civil Court. The provisions of Section 251 (3) are very clear and unambiguous. If the Constitution intends that the Federal High Court shall be imbued with criminal jurisdiction to the exclusion of any other Court in respect of all the matters and causes in Subsection (1) of Section 251 thereof it should have stated so clearly, as it did when it vested “Jurisdiction to the exclusion of any other Court in CIVIL CAUSES AND MATTERS” in Section 251(1). To me, it is idle to argue, as the appellant did, that simply because Section 257(1) of the Constitution operates subject to Section 251 the jurisdiction the High Court of the FCT has by virtue of Section 257 of the Constitution has been excluded. That cannot be the

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proper construction of these provisions we are discussing. Section 251(3) of the Constitution that specifically confers on the Federal High Court its criminal jurisdiction must be given its natural and grammatical meaning. While Section 251(1) of the Constitution vests in the Federal High Court “jurisdiction to the exclusion of any other in civil causes and matters” in respect of the listed matters therein; Subsection (3) of the same Section 251 merely enables the Federal High Court to have and exercise criminal jurisdiction in respect of the causes and matters in sub-Section (1) thereof. The Criminal Jurisdiction is clearly not intended to be exclusive to the Federal High Court.

It has become necessary now for me to recall the statement made by this Court, in UNIPETROL v. E.S.B.I.R. (2006) All FWLR (pt.317) 413 at 423, on what we should always bear in mind when we are called upon to interpret a provision of statute. That is: that the words of a statute are to be given their ordinary meaning, and that the cardinal principle of law on interpretation is that a Court, when interpreting a provision of a statute, must give the words and the language used

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their simple and ordinary meaning. It is not permissible, therefore, to go outside the words of the provision to introduce extraneous matters that may lead to circumventing or giving the provision an entirely different meaning from what the lawmaker intended it to be. In other words, nothing must be added to, and nothing must be taken from the statute. By this, we shall not interpret the provision to mean what it does not mean, or to interpret it not to mean what it means in actuality. That should be the golden rule.

The words “subject to” which, in Section 257(1) of the Constitution, usher in “the provisions of Section 251 and any other provisions of this Constitution” are deliberately there to introduce a condition, a restriction, a limitation or proviso to intentionally subordinate the provisions of Section 257(1) to those other provisions of the Constitution. See OKE v. OKE (1994) 1 ALL NLR (pt. 1) 443 at 450; NDIC V. OKEM ENTERPRISE LTD & ANOR (2004) 10 NWLR (pt. 880) 107; FRN v. OSAHON (2006) S NWLR (pt. 973) 261; OLORUNTOBA-OJU v. ABDUL-RAHEEM (2009) 13 NWLR (pt. 1157) 83. This however, does not mean the supritendency of the exclusive civil

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jurisdiction of the Federal High Court vested by Section 251(1) of the Constitution over other provisions. The clear intent or purpose to limit the exclusive jurisdiction of the Federal High Court to Civil causes or matters mentioned in Section 251(1) of the Constitution becomes more manifest and poignant with the introductory words of the sub-section “Notwithstanding anything to the contrary contained in this Constitution”, which words qualify the words “shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters, in respect of the jurisdiction the Constitution in Sub-section (1) of Section 251 vests in the Federal High Court. The word “notwithstanding” that heralds the provisions of Section 251(1) merely removes any doubt, or impinging and impeding effect of any other provision of the Constitution, in respect of the civil jurisdiction of the Federal High Court in relation to those matters or causes specifically mentioned therein.

There is also, or in addition to Sections 251(3) and 257(1), Section 286(1)(b) of the Constitution that provides, inter alia, that “where by the Law of a State jurisdiction is conferred

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upon any Court for the investigation, inquiry into, or trial of persons accused of offences against the Laws of the State – the Court shall have jurisdiction with respect to the investigation, inquiry into, or trial of persons for Federal Offences-” Section 299 of the Constitution provides that “the provisions of this Constitution shall apply to Federal Capital Territory, Abuja as if it were on of the States of the Federation”. Accordingly, reference in Section 286(1)(b) of Constitution to either the Law or Court of a State is also reference to the Law or Court, including the High Court, of the Federation Capital Territory, Abuja.

There is no substance in issue 1 canvassed and argued by the appellant. I hereby resolve it against the appellant.

Issue 3 is closely related to issue 1. The question posed in issue 3, formulated from the appellant’s complaint in ground 4 of his Grounds of Appeal, is: whether the learned Justices of the Court of Appeal were right in holding that the Independent Corrupt Practices and other Related Offences Commission (ICPC) can initiate a charge under its enabling Act, having regards to the combined provisions of Sections

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6(a); 26(2) and 61(1) of the Corrupt Practices and other Related Offences Act, 2000, as amended The grouse of the appellant, as it appears, is directed against the opinion expressed by the lower Court at pages 392-393 of the record before resolving the issue against the appellant. The lower Court has held thus:

When Sections 6(a), 26(2) and 61(1) of the Corrupt Practices and other Related Offences Act, 2000 are read together and the words used in the said Sections are given their ordinary grammatical meanings, since the words are plain and simple, it is clear that by Section 61(1) of the Act, the prosecution being undertaken by the Independent Corrupt Practices and other Related Offences Commission (ICPC) in this case is “deemed” to have been commenced with the consent or under the delegated authority of the Honourable Attorney-General of the Federation. This is so because the word “prosecution” used in both Sections 26(2) and 61(1) of the Corrupt Practices and other Related Offences Act, 2000 is the noun of the word “prosecute” which means

To institute and pursue a criminal action against a person.

Black’s Law Dictionary. Eighth

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edition, page 1258.

The provisions of Section 6(a) and 61(1) of the – Act, 2000 seem to validate a criminal prosecution under the Act where the prosecution was not initiated by the Attorney-General of the Federation himself…..

The lower Court was right in this view, and I endorse it.

It is unfortunate that the appellant persisted in his erroneous view that the ICPC cannot, under Section 26(2) of its enabling Act, initiate and maintain criminal proceedings against any person, including the appellant herein, for an offence under the said Corrupt Practices and other Related Offences Act, 2000 (i.e. the ICPC Act), inspite of the loud allusions by the 1st respondent and the learned trial judge to the undoubted and authoritative pronouncement on it by this Court in A. G, ONDO STATE v. A. G. FEDERATION & ORS (2002) 6 SC. (pt. 1) 1. All the senior counsel to the appellant needed to do, as an officer in the temple of justice, is simply picking the decision of the Full Panel of this Court in A. G, ONDO STATE v. A. G, FEDERATION & ORS (supra), read it and advise his client accordingly.

Be that as it may, the Full Court of this Court had

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cause to consider the constitutional validity of several provisions of the ICPC Act in 2002 in the A. G, ONDO STATE v. A. G, FEDERATION & ORS (supra). Sections 26(3) and 35 of the ICPC Act were struck down as being unconstitutional. The validity of the other provisions, including Section 26 (2) of the ICPC Act was affirmed. At page 139 of the report, the opinion of Uwaifo, JSC which says it all is inter alia thus:

”Section 286(1)(b) of the Constitution makes it clear that any Court of a State (including the FCT) which is by the law of that State given jurisdiction to try persons accused of offences against the Laws of the State, shall have like jurisdiction with respect to Federal offences”.

Specifically, on the prosecutoral powers of the ICPC viz-a-viz the power of the Attorney-General of the Federation under Section 174 of the Constitution his Lordship had put it viz-

”Section 6 of the Act says inter alia that it shall be the duty of the ICPC to prosecute offenders. However, Section 26(2) of the Act provides inter alia that every prosecution for an offence under the Act shall be deemed to be initiated by the Attorney -General of the

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Federation.

It is no longer in doubt that the High Court of the FCT, like any State High Court, can be used as a venue for the prosecution of the offences under the ICPC Act. The informed opinion of Ejiwunmi JSC at page 190 of A.G, ONDO STATE v. A. G, FEDERATION & ORS (supra) is very clear on this. It is similarly beyond doubt that Sections 6(a), 26(2) and 61(1) of the ICPC Act are constitutionally valid. That was the loud and clear decision of this Court in A.G. ONDO STATE v. A. G. FEDERATION (supra). Curiously, the senior counsel for the appellant, very cognisant and seised of this fact, is not asking us, my Lords, to depart from it.

In what appears to me to be mere gymnastics of quibbles, the learned senior counsel for the appellant had taken strenuous pains to distinguish between the words initiate and Prosecution” as they appear in Sections 6(a), 26(2) and 61(1) of the ICPC Act to found his solace in the submissions, that the provisions-

did not say Commission have been given authority. Therefore if the Act had contemplated a direct power to initiate from the Attorney-General of the Federation

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to ICPC it should have stated so clearly. It is not so stated. Any person or authority used here means there must be express delegated authority to do so initiate not “implied authority or decision as the Court below held.

The senior counsel further submitted that it must be established that the express authority, or fiat, of the Attorney-General of the Federation was donated to the ICPC or Paul Ahmed Bassi to enable either or both of them initiate the criminal proceedings against the appellant.

It is, however, not in dispute that Paul Ahmed Bassi, Principal Legal officer, ICPC who signed the process initiating the prosecution of the appellant is an officer of the ICPC. To that extent, he is an agent of the ICPC in the said initiation of the prosecution of the appellant. By this indubitable fact, the prosecution of the appellant for corrupt practices under the ICPC Act was initiated by the ICPC. The grouse of the appellant, as I understand it, is directed against the holding of the lower Court, at page 393 of the record, that it is clear by Section 61(1) of the Act, the prosecution being undertaken by the Independent

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Corrupt Practices and other Related Offences Commission (ICPC), in this case, is “deemed” to have been commenced with the consent or under the delegated authority of the Honourable Attorney-General of the Federation.

After consulting dictionaries, particularly Oxford Advanced Learner’s Dictionary and Chambers 21st Century Dictionary (Revised Edition), the learned senior counsel submits on behalf of the appellant, thus:

5.30.- from these Lexicographers, it is clear initiate is distinct from prosecute or prosecution. To initiate is to set in motion .

I am afraid, I cannot see the distinction between the terms to prosecute, and to initiate prosecution, as they appear in Sections 6(a), 26(2) and 61(1) of the ICPC Act. The learned senior counsel himself concedes, upon his consulting Oxford Advanced Learners Dictionary, that “to initiate” means to cause something to begin. Accordingly, to initiate prosecution means, in my view, to cause prosecution to begin. The verb: prosecute, in BLACK’S LAW Dictionary 9th ed. at p. 134 means, inter alia, to commence and carry out legal action; to institute and pursue criminal action against a person including the

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appellant herein. There is nothing ambiguous in those provisions, particularly of Section 26(2) of the ICPC Act, to warrant the rigmarole, or the circulocutous argument, about the clause: every prosecution for an offence under this Act – shall be deemed to be initiated by the Attorney General of the Federation”. This is more so that this Court in A.G. ONDO STATE v. A.G. FEDERATION & ORS. (Supra) has resolved the matter and held that the powers exercised by the ICPC pursuant to Sections 6(a), 26(2)and 61(1) of the ICPC Act, to prosecute offenders under the ICPC Act, are deemed to have been exercised by the Attorney-General of the Federation pursuant to Section 174 of the Constitution.

In enacting Sections 6(a), 26(2), 61(1) of the ICPC Act, the National Assembly was conscious that, by dint of Section 174 of the Constitution, the Attorney- General of the Federation remains the repository of the prosecutoral powers of the Federation and that the ICPC is statutorily presumed and deemed to be prosecuting the offenders under the ICPC Act as an, or the, agent of the Attorney-General of the Federation. The lower Court has not gone outside the

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box to do and say anything to the contrary. In the circumstances, I hereby resolve Issue 3 against the appellant.

In paragraph 4.55 of the Appellant’s Brief of Argument, it is acknowledged that “the appellant is standing trial on a six count charge before the High Court of the Federal Capital Territory – with the 2nd Respondent and that Counts 1, 2, 3, 4 and 5 relate to the Appellant. Counts 1 and 3, dealing with the offence of conspiracy, are brought under Section 26(1) (c) of the ICPC Act. Count 4, dealing with the offence of using the office to confer corrupt advantage, is brought under Section 19 of the ICPC Act. While count 5, dealing with knowingly making false statements to officers of ICPC, is an offence contrary to and punishable under Section 25(1) (a) of the ICPC Act. The pith and gist of all the allegations are the conspiracy to illegally convert, and the criminal conversion of, the sum of N16,412,315.06, being the interest generated from placing N300.000.00 and N200.000.00 on fixed deposits respectively at Wema Bank PLC and Intercontinental Bank PLC.

For the appellant, it is submitted that the proofs of evidence and the charges

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disclose no prima facie facts on the elements of the 3 offences under Sections 19, 25(a) & (b) and, 26(1) (c) of the ICPC Act. The questions to ask are: what are the elements of these offences, and whether the facts disclosed by the proofs of evidence sustain any prima facie case of the commission of the alleged offences

A prima facie case means no more than that “on face of it” the facts supporting the charge disclose ground(s) for proceeding in the prosecution. See ONAGORUWA v. STATE (1993) 7 NWLR (pt. 303) 49 at 82 – 83. It also means that the facts, as they stand, if they are not controverted and they are believed, are sufficient proof of the allegations. Of course Prima facie case and proof beyond reasonable doubt, which comes later, do not stand on the same footing or pedestal. See IKOMI v. THE STATE (1986) 3 NWLR (pt.28) 240 at 355; EGBE v. THE STATE (1980) I NCR 341; ABACHA v. THE STATE (2002) 11 NWLR (pt.779) 437 at 486. To constitute a prima facie case, it is trite that the proofs of evidence must link the accused to the offence he is alleged to have committed. See OHWOVORIOLE v. FRN (2003) 2 NWLR (pt.803) 176 at 190 – 191. In otherwords,

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that the case against him not is not one borne of mere suspicion. See IKOMI v. STATE (supra).

I will need to reproduce the provisions of Sections 19, 25(1)(a) and 26(1)(c) of the ICPC Act. They are:

19. Any public officer who uses his office to gratify or confer corrupt unfair advantage upon himself or any relation or associate of public officer or any other public officer shall be guilty of an offence and shall on conviction be liable to imprisonment for five (5) years without option of fine.

25.(1) Any person who makes or causes any other to make to an officer of the Commission or to any other public officer, in the course of the exercise by such public officer of the duties of his office, any statement which to his knowledge of the person making the statement, or causing the statement to be made-

(a) is false, or intended to mislead or untrue in any material particular:

or

(b) is not consistent with any other statement previously made by such person to any other having authority or power under any law to receive, or require to be made such other statement notwithstanding that the person making the statement is not under any

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legal or other obligation to tell the truth, shall be guilty of an offence and shall or conviction be liable to a fine not exceeding One Hundred Thousand Naira or to imprisonment not exceeding two (2) years or to both such fine and imprisonment.

26(1) Any person who-

(c) abets or is engaged in a criminal conspiracy to commit any offence under this Act.

Shall be guilty of an offence and shall on conviction, be liable to the punishment provided for such offence.

The elements constituting each offence are very well stated in the provisions which, in my opinion, are unambiguous. Each charge is also clear as to what it alleges and the offence charged. The proofs of evidence and the charges, if juxtaposed against the provisions of ICPC Act, under which the charges have been laid, clearly disclose a prima facie case to warrant the trial to proceed.

This is an interlocutory appeal. It is not permissible in law at this stage that any comments be made on the merits of the substantive case that is yet to be heard. See IWEKA v. SCOA (2000) 3 SC 21 at 24 – 25; FSB INT’L BANK LTD. v. IMANO NIG. LTD. (2000) 11 NWLR (pt.679) 620 at 639. Conscious of this injunction, I

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shall not undertake any comment on the merits of the case.

Mr. Ayegbayo, an investigating officer of the ICPC, is apparently the star witness the ICPC intends to call at the trial of the appellant. The other 3 witnesses are drawn from the various banks. Their evidence in essence are intended merely to corroborate one or two facts. There are also documents to be produced at the trial. These following facts, among others, appear to stand out in the synopsis of the proposed evidence of the said ICPC investigator, Mr. Ayegbayo. That is:-

The President directed the 1st accused to handover the money (i.e. N557,995.065.00 donated by Bayelsa State Government) received from Bayelsa State Government to the Ministry of Police Affairs to carry out the necessary purchases. That the accused persons failed to comply with the directives of the President to remit the money to the Ministry of Police Affairs to make the purchases until November, 2006 when the deposit (in the interest yielding

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accounts) had reached maturity and the sum of N16,412,315.56 was the interest generated on the principal amount.

That the accused persons then released the (principal) sum of N557,995.065 to the Ministry of Police Affairs-minus the interest generated. The accused persons deliberately withheld from the Ministry of Police Affairs the fact that the amount donated had been placed in an interest yielding accounts and that it had generated a substantial amount of interest.

(And) that the accused persons collected the N16,412, 315.56 as interest from the 2 fixed deposit accounts and converted same to their personal use.

On these facts and others in the proofs of evidence, the appellant has failed to carry me along with him that the facts and the charges do not disclose any prima facie case. The facts speak for themselves and to the allegations against the appellant. I think, and so hold, that on these facts a prima facie case has been made out against the appellant requiring the trial to proceed on the charges in the information sheet. A prima facie case, as this Court held in DABOH ANOR. v. THE STATE (1977) 11 NSCC 309; (1977) 5 SC 222, is made out by

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the prosecution if it is sufficient for the accused to be called upon to make some explanations.

The appellant has not satisfactorily made out his complaint as argued under Issue 2. Accordingly, I resolve the Issue against him, and in favour of the 1st respondent.

On the whole, I find no substance in this appeal. It is unfortunate that, inspite of the decision of this Court in A.G. ONDO STATE v. A.G. FEDERATION (supra) on facts almost on all fours with the facts of the instant appeal, this interlocutory appeal was fought doggedly from the High Court of the FCT to this Court. In the end, notwithstanding the huge resources, time, money and energy inclusive, wasted this case has to go back to the zero or starting point at the High Court of the FCT for the appellant, as the accused person to face his trial.

It is hereby ordered that the case against the appellant at the trial Court shall forthwith resume or continue, and shall be given accelerated hearing and the attention it deserves.

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SC.137/2014