Daily Trust - - FEATURE -

I do not think it is an ex­ag­ger­a­tion to say that the word “all” in con­stru­ing a statute is ex­tremely re­cal­ci­trant, and if the word “all” is to cut down so as to ex­clude cer­tain things which might come un­der the de­scrip­tion, that must be done in the clear­est pos­si­ble lan­guage. The proper way of con­stru­ing a word like the word “all” in such a con­test as this is to say that “all” means “all” and it does not mean “some”, un­less you find a com­pelling con­text which forces you to place some lim­i­ta­tion on the word.”

The EFCC there­fore be­ing an agency of the Fed­eral Gov­ern­ment can ini­ti­ate pro­ceed­ings in the name of the Fed­eral Gov­ern­ment even though it has been vested with pow­ers to sue and be sued in its name. See OLUESE V. FRN & ANOR (2013) LPELR-22016(CA)

Sec­tion 211 of the Con­sti­tu­tion talks about the power of the State At­tor­ney-Gen­eral to pros­e­cute, but de­cid­edly the word ‘may’ used in that Sec­tion does not re­strict the del­e­ga­tion of the At­tor­neyGen­eral’s power to only of­fi­cers in his depart­ment, see AMADI V. FRN (SUPRA). If we take Sec­tion 174(1) of the con­sti­tu­tion, it is my view that the Eco­nomic and Fi­nan­cial Crimes Com­mis­sion (Es­tab­lish­ment) Act 2004 is one en­act­ment by the Na­tional Assem­bly of the Fed­eral Re­pub­lic of Nige­ria, and so the At­tor­ney Gen­eral of the Fed­er­a­tion shall have power to in­sti­tute and un­der­take crim­i­nal pro­ceed­ings against any per­son be­fore any court of law in Nige­ria, in re­spect of any of­fence cre­ated by or un­der any Act of the Na­tional Assem­bly.

But the of­fences of steal­ing and is­suance of dis­hon­oured cheques con­trary to Sec­tion 390 (8) (b) of the Crim­i­nal Code Law C17 Vol. 2 Laws of La­gos State of Nige­ria 2003 and Sec­tion 1(1) (a) of the Dis­hon­oured Cheques (of­fences) Act, Cap D11 Laws of the Fed­er­a­tion of Nige­ria 2004, can­not be iso­lated, as they con­sti­tute the phrase “any of­fence” in Sec­tion 174(1) (a) of the Con­sti­tu­tion of the Fed­eral Re­pub­lic of Nige­ria 1999.

The added au­thor­ity which is more com­pelling is the con­sti­tu­tional pro­vi­sion which al­lows EFCC as any other au­thor­ity to in­sti­tute crim­i­nal pro­ceed­ings un­der Sec­tion 211 (1) (b) of the 1999 Con­sti­tu­tion, see the case of AMADI V FRN (SUPRA).

Flow­ing from above there­fore even though the charge is based on a La­gos State Law, the EFCC can ini­ti­ate such pro­ceed­ings even with­out a fiat from the At­tor­ney Gen­eral of La­gos State and if so, it can do in its au­tho­rized name and not the name of the Peo­ple of La­gos. Also, the At­tor­ney - Gen­eral of the Fed­er­a­tion can pros­e­cute in re­spect to the Eco­nomic and Fi­nan­cial Crimes of­fences, and can carry out such func­tions in the name and on be­half of the Fed­eral Re­pub­lic of Nige­ria even when pros­e­cut­ing un­der a cor­re­spond­ing State Law in the Fed­er­a­tion. See AMADI V. FRN (SUPRA). It is my view that the Fed­eral At­tor­ney Gen­eral has power to pros­e­cute any of­fence in re­spect of which the EFCC is con­cerned.

There is some­thing fun­da­men­tal that the ap­pel­lants are los­ing sight of, this is the supremacy of the con­sti­tu­tion over the laws con­cern­ing the au­thor­ity of the EFCC to ini­ti­ate pro­ceed­ings.

That is to say that the con­sti­tu­tional pro­vi­sion au­tho­riz­ing any other au­thor­ity to ini­ti­ate crim­i­nal pro­ceed­ings can­not be whit­tled down by a state law like the Crim­i­nal Jus­tice Law of La­gos State. Sec­tion 77, 69, 70 and 249 of the Ad­min­is­tra­tion of Crim­i­nal Jus­tice Law, 2011 can­not whit­tle down the au­thor­ity of the EFCC in this case.

Also, I have not seen, nor have I been told, what sub­stan­tial mis­car­riage of jus­tice the ap­pel­lants have suf­fered by the EFCC pros­e­cut­ing them un­der the name of Fed­eral Re­pub­lic of Nige­ria.

Talk­ing about the re­peal of the law un­der which the fiat was is­sued, the con­tention of the ap­pel­lants is that the fiat has ex­pired. There are two types of re­peal known to our ju­rispru­dence which are:

(i) A re­peal with re-en­act­ment (or re­place­ment) of the re­pealed law; or (ii) A re­peal with­out re­place­ment Con­se­quently, the ar­gu­ment of the ap­pel­lants that the fiat given to EFCC un­der the re­pealed law is ex­pired can­not hold. The In­ter­pre­ta­tion Act saves such ac­tion and there­fore the fiat is valid. As­sum­ing the fiat was not given at all, the EFCC can still come un­der the “any other au­thor­ity” as men­tioned in Sec­tion 211 of the Con­sti­tu­tion to ini­ti­ate pro­ceed­ings.

The ap­pel­lant’s sub­mis­sions on the pro­ce­dural re­quire­ments are steps to be taken when the ini­ti­a­tion of crim­i­nal pro­ceed­ings are un­der­taken by the of­fice of the At­tor­ney Gen­eral or when it is done un­der the pow­ers be­stowed on agen­cies of the state. EFCC has re­ceived the high­est ap­proval to ini­ti­ate pro­ceed­ings in the name of the Fed­eral Gov­ern­ment of Nige­ria, be­ing a fed­eral agency. This is­sue is there­fore re­solved against the ap­pel­lants.

On the sec­ond is­sue, it is trite that ju­ris­dic­tion is a thresh­old mat­ter in any ad­ju­di­ca­tion. The chal­lenge to ju­ris­dic­tion is based on the use of the name Fed­eral Re­pub­lic of Nige­ria which the ap­pel­lants con­tend robs the trial court of ju­ris­dic­tion. That as­pect of the is­sue has been dealt with ear­lier and I find that the charge was ini­ti­ated by due process and there­fore the trial court has ju­ris­dic­tion to hear the case as con­sti­tuted. IS­SUE THREE & FOUR: The ap­pel­lant un­der is­sue three chal­lenged the ef­fi­cacy of a wrongly dated counter af­fi­davit. Ar­gu­ing is­sue four, the ap­pel­lants sub­mit­ted that the trial court had an obli­ga­tion to de­cide be­tween the par­ties based on the sub­mis­sions of coun­sel that there are 2 in­com­pe­tent charges or in­for­ma­tion be­fore the court. That one is the orig­i­nal in­for­ma­tion dated 11th Septem­ber 2012 while the sec­ond is dated 12/11/2012 with­out any proof of ev­i­dence and pur­port­ing to amend the first one. That it was filed with­out the pros­e­cu­tion ap­ply­ing to with­draw the orig­i­nal in­for­ma­tion. Ap­pel­lants re­ferred to page 117 - 118 of the record and the case of BASSEY V EKANEM (2001) 1 NWLR (Pt 694) 360 at 376 on duty of court to de­cide be­tween the par­ties based on what was can­vassed by the par­ties. They also ar­gued that the charges were in­com­pe­tent but the trial court glossed over it to find for the pros­e­cu­tion. They fi­nally urged the court to find for the ap­pel­lants.

The ap­pel­lants sub­mit­ted that the counter af­fi­davit dated 9th Jan­uary 2012 in­stead of 9th Jan­uary 2013 was in­com­pe­tent. The other plank of the ar­gu­ment is that coun­sel swore to the af­fi­davit. I will start with the sec­ond ar­gu­ment. The au­thor­ity of IBE V ON­UO­RAH (SUPRA) did not say cat­e­gor­i­cally that coun­sel can­not de­pose to an af­fi­davit in sup­port of their client’s case. This is be­cause it of­ten­times, puts a coun­sel in a dif­fi­cult sit­u­a­tion if con­flicts arise and the court has to take oral ev­i­dence to re­solve such a con­flict. How­ever, the com­pe­tence of a de­po­nent largely stems from who is a com­pe­tent wit­ness. This is set­tled by the Ev­i­dence Act, 2011, Sec­tion 175 (1).

There­fore, any­one who has rel­e­vant ev­i­dence to give and is not dis­qual­i­fied by law is a com­pe­tent wit­ness to tes­tify. See the case of LA­SUN V AWOYEMI (2011) LPELR - 5116 (CA), OMORINBOLA II V MIL­I­TARY GOVER­NOR OF ONDO STATE (1995) 9 NWLR (Pt 418) 201 at 22, and SAL­ISU V AMU­SAN (2010) LPELR - 9103 (CA).

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