Propriety of Charge Signed by Staff of EFCC for the Chairman
The Appellant along with two other persons (Dr. Jubril Bello and Dr. Victor Odozie), represented to a certain Hartmat Puchstein, that his company would be awarded a contract by the Ministry of Mines and Power, for the supply and installation of computers and office equipment. Dr. Bello subsequently forwarded some documents supposedly from the Federal Ministry of Mines and Power, Ministry of Finance and Central Bank of Nigeria. The victim was also informed that he needed to pay money for contract reviews, foreign exchange control, risk insurance et.al. He paid sums of money totalling $397,800 into different bank accounts which include: an Ecobank account, with Emmanuel Obieze as the beneficiary and Equity Bank account, with Lecon Pharmacy as the beneficiary. Mr. Puchstein later discovered that, the contract was a fraud. Investigations carried out by the Economic and Financial Crimes Commission (EFCC) also revealed that the Appellant was the owner of the Ecobank account. The Appellant was consequently, charged for the offences of conspiracy to obtain money by false pretence, obtaining money by false pretence, forgery and uttering of false document, contrary to Sections 8(a) and 1(3) of the Advanced Fee Fraud and other Fraud Related Offences Act, and Sections 467(1) (b) and 468 of the Criminal Code, Laws of Lagos State of Nigeria.
At the trial, the Respondent as the Prosecution, called witnesses and tendered documents, while the Appellant tendered documents through the witnesses called by the Respondent. The Appellants and other Defendants filed No Case Submissions at the trial Court, but the Court dismissed them, and ordered them to enter their defence. The Appellant however, chose to rest his case on that of the Respondent. In its judgement, the trial Court convicted and sentenced the Appellant to ten years imprisonment, and also made a restitution order against him. The Appellant unsuccessfully appealed to the Court of Appeal. Dissatisfied, the Appellant further appealed to the Supreme Court.
Issues for Determination (i) Whether the Amended Information signed by M.S. Hassan on behalf of EFCC, robbed the trial Court of the jurisdiction to determine the case;
(ii) Whether the Court of Appeal was right, in upholding the conviction of the Appellant.
(iii) Whether the Court of Appeal was right, in affirming the sentence of the Appellant.
Arguments On the first issue, Counsel for the Appellant submitted that, a Court must be competent before it can assume jurisdiction. He argued that, the Amended Information was signed by a certain M.S. Hassan for the Executive Chairman of EFCC, and not for and/or on behalf of the EFCC, which is the statutory body that can initiate a criminal action and issue a legal process to that effect. He submitted that, an action initiated on behalf of the Executive Chairman of EFCC is a nullity, and same cannot vest jurisdiction on the Court. Counsel referred to Section 6(m), 7(2) and 13(2) of the EFCC Act. He argued further that M.S. Hassan who signed the initiating process, is not a Legal Practitioner within the meaning ascribed to it under the Legal Practitioners’ Act because initials are not found on the rolls but full names. He relied on the case of OKAFOR v NWEKE (2007) ALL FWLR (Pt. 368) 1016. Counsel contended that the Appellant was tried and convicted under a repealed law, because as at the time the Information was filed, the relevant Sections of the Advance Fee Fraud and other Fraud Related Offences Act No. 13 of 1995, had been repealed.
In response, Counsel for the Respondent stated that, by virtue of Section 1 of the EFCC Act, the Commission is a body corporate with power to sue and be sued. Section 2(1) of the Act provides that, the Chairman is the Chief Executive and Accounting Officer of the Commission, who is vested with the power to execute the functions of the Commission. In discharging his function, the Chairman works with agents, in accordance with Section 8(3) of the EFCC Act. On the issue as to whether M.S. Hassan is not a Lawyer, relying on Sections 131 and 132 of the Evidence Act, Counsel submitted that, he who asserts must prove his assertion. He argued that, the Appellant failed to prove his allegation, and that the Appellant lacked the locus standi to challenge the authority of M.S. Hassan, as there is presumption of authority where a Legal Practitioner announces appearance in favour of a party. He stated that the case of OKAFOR v NWEKE (supra) relied upon by the Appellant, is inapplicable. On whether the Appellant was tried and convicted on a repealed law, Counsel contended on behalf of the Respondent, that it is the substantive law in force at the time of the commission of the crime, that governs the case at trial.
On the second issue, the Appellant submitted that, the Court of Appeal failed to apply the decision of the Supreme Court, in the case of MICHEAL IJUAKA v COMMISSIONER OF POLICE (1976) 6 & 7 SC, 285. He argued that, the Respondent failed to establish the essential elements of the offences, and that the Court of Appeal relied on circumstantial evidence, which did not link the Appellant with the commission of the offences of forgery and uttering. Counsel submitted that, the Court of Appeal wrongly affirmed the judgement of the trial Court, which did not properly evaluate the evidence adduced, before convicting the Appellant. On its part, the Respondent argued that after an appraisal of the evidence led by the Respondent, conspiracy can be inferred to have occurred. He contended that, the lower Courts properly considered and applied the principle in the case referred to. In respect to the offence of forgery and uttering, the Respondent argued that, where a document shown to be false was used as an intermediate step in the scheme of fraud in which the accused was involved, and same was presented or uttered by the accused person to gain advantage, an irresistible inference exists that either the accused forged it or procured someone to commit forgery. He relied on the case of OSONDU v FRN (2000) 12 NWLR (Pt. 682) 483 and stated further that, the offence of uttering was established, since the document was forwarded to the victim. Counsel submitted that, the case was proved beyond reasonable doubt. He concluded by stating that, the Appellant failed to lead evidence in his defence, but rested his case on that of the Respondent, which left the Court free to accept the unchallenged evidence of the Respondent.
On the third issue, it was submitted on behalf of the Appellant that, the sentence was excessive, as the trial Court failed to take into consideration that the Appellant who is elderly was seriously ill, was of good conduct throughout the trial. Counsel for the Respondent, on the other hand, submitted that the Appellant was tried, convicted and sentenced under the Advanced Fee Fraud and other Fraud Related Offences Act and by Section 1(3) of the Act, the minimum sentence that can be imposed is ten years imprisonment, without an option of fine. He argued that the trial Court had no discretion to go below the mandatory minimum sentence.
Court’s Judgement and Rationale On the first issue, the Apex Court held that, by virtue of Section 1 of the EFCC Act, the Commission is a body corporate that can sue and be sued. Also, agreeing with the submission of Counsel for the Respondent, the Court held that by Section 2(1) (a) of the Act, the Chairman is the Chief Executive and Accounting Officer of the Commission. The Chairman is imbued with power to execute the functions of the EFCC, which includes initiating criminal proceedings, and by the provisions of Section 8(3) of the EFCC Act, the staff of the Commission can assist the Chairman in performing his functions. It was in furtherance of this, that M.S. Hassan signed both the Information and the Amended Information, on behalf of the Chairman of the Commission. Relying on the dictum of ALOMA MARIAM MUKHTAR, JSC (as she then was) in AMADI v FRN (2008) LPELR-441(SC), the Supreme Court posited that M.S. Hassan was competent to sign the Information, as any staff of the EFCC can exercise the power delegated to the EFCC. Although the Commission has a legal personality, it has to perform its functions through human agents.
On the allegation that M.S. Hassan is not a Legal Practitioner, the Court held that the Counsel for the Appellant did not provide evidence to that effect, and that he who asserts must prove. The Court held that, there is presumption of authority, where a Legal Practitioner announces appearance in favour of a party.
Regarding the argument on whether the Appellant was tried and convicted under a repealed law, Their Lordships held that it is the substantive law in force at the time of the commission of the crime or when the cause of action arose, that governs the case at trial. Thus, the liability of an offender for a statutory offence committed while the Statute was in force is preserved, notwithstanding the repeal of the Statute after commission of the offence and before the Charge – Section 6(1) of the Interpretation Act.
On the second issue, the Supreme Court considered the meaning and/or ingredients of all the offences for which the Appellant was convicted as well as the evidence led at trial against the Appellant. Their Lordships stated the law that persons who are participes criminis, whether as principals in the first degree or as accessories before or after the fact of a crime, are guilty of the offence and may be charged and convicted with the actual commission of the offence.
On the third issue, the Court held that, a Court has no power to reduce a sentence specifically and mandatorily imposed for an offence by the Statute creating and providing punishment for the offence.
Based on the foregoing, the Supreme Court affirmed the judgement of the Court of Appeal.
Appeal Dismissed.
Representation: Allen Agbaka Esq. for the Appellant Chile Okoroma Esq, E.E. Iheanacho Esq. and I. Diribe for the Respondent.
Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR)) PRINTED AND DISTRIBUTED BY PRESSREADER
“M.S. HASSAN WAS COMPETENT TO SIGN THE INFORMATION, AS ANY STAFF OF THE EFCC CAN EXERCISE THE POWER DELEGATED TO THE EFCC. ALTHOUGH THE COMMISSION HAS A LEGAL PERSONALITY, IT HAS TO PERFORM ITS FUNCTIONS THROUGH HUMAN AGENTS”