From Godwin Tsa, Abuja
A couple and defendants in a charge bordering on a N30m business transaction filed against them by the Inspector General of Police have vowed to challenged the competence of the charge at the Abuja division of the Court of Appeal.
In addition, the defendants are equally set to appeal against the ruling of the Federal High Court which has assumed jurisdiction to adjudicate on the matter regardless of the noticable controversial issues contained in the charge marked FHC/ABJ/CR/176/2017, between Federal Republic of Nigeria and Winston Odumu-Ojobi, Patience Odumu-Ojobi and Atlantic and Pacific Development Projects Ltd.
The proposed appeal according to counsel to the defendants, Bola Aidi, will contest the ruling of Justice Taiwo Taiwo who held that the Inspector General of Police (IGP) has the powers to initiate criminal proceedings in the name of the Federal Republic of Nigeria(FRN).
Beyond the issue of jurisdiction of the court and the proper name of the prosecuting authority, the defendants equally pointed out that the condition precedent contained the in the contractual agreement have not been met by parties before the matter went to court.
Specifically, they made reference to clause nine of the contractual agreement reads: “It is hereby agreed that where a dispute arises as to the execution of this MOU, parties shall first resolve their differences amicably, through the employment of peaceful negotiation withn one month.
” Where peaceful negotiation fails, then parties shall submit themselves to a mediation. If mediation still did not resolve the dispute within the stipulated period of 90 days, either of the parties shall be at liberty to approach a court in Nigeria for the resolution of the dispute.”
In addition, the agreement stated that “In the event of default/failure on the part of the supplier after the sum of N30m has been transacted by the Association to it, the supplier shall be wholly liable to the Association.
In another agreement between the association and the nominal complainant, Ekeoba, it was agreed thus; ” In the event of default on the part of any party of the transaction under this agreement, the party which is in default shall solely be liable to the other party.”
According to counsel to the defendants in the four-count charge, that has witnessed three amendments, the trial judge erred in law when he overruled the notice of preliminary objection filed by his clients.
In the said notice of preliminary objections, counsel to the defendants, Bola Aidi, had challenged the locus standi of the prosecution counsel, Dennis Abi to continue with the trial having being retired from the police.
The second leg of the objection was predicated upon the fact that being a retired police officer, the prosecution counsel required a fresh fiat from the office of the Attorney General of the Federation to continue the prosecution of the case as provided under section 268 (2) (3) of the Administration of Criminal Justice Act, 2015.
Aidi further argued that the fiat given to the police as an institution to prosecute the case cannot be further delegated to a private prosecutor.
It was also the case of the defendants that the Police was wrong to have filed the case in the name of Federal Republic of Nigeria (FRN) instead of bringing it in the name of IGP, as spelt out in section 268 (2) (3) of ACJA, 2015.
Sections 268 (1) of ACJA reads” Where a private practitioner prosecute on behalf of the Attorney General of the Federation or a public officer prosecuting in his official capacity in any criminal proceedings, the private legal practitioner or public officer shall prosecute subject to such direction as may be given by the Attorney General of the Federation.
“(2) Where proceedings in respect of an offence are instituted by a police officer, it shall be in the name of the IGP or COP as the case may be.
” (3) Where a proceeding in respect of an offence is instituted on behalf of the Attorney General of the Federation, it shall be in the name of FRN.”
While making his submissions on the above provisions, the defence counsel, Aidi, had argued that the operating word ‘shall’ means mandatory requirements that commands compliance.
He accordingly urged the court to hold that the prosecution lacked the requisite locus standi to prosecute the case having failed to satisfy the condition precedents contained in sections 268 (1) (2) and (3) of ACJA, 2015.
But in his ruling, Justice Taiwo upheld the counter affidavit filed by the prosecution counsel, Abi and dismissed the objections for lacking in merit.
Justice Taiwo ruled that contrary to the submissions of the counsel to the defendants, the Inspector General of police has the right to re-engaged a retired police officer to prosecute criminal cases, which he was handling on behalf of the police before proceeding on retirement.
Although the judge conceded that the words ‘shall’ used in sections 268 (2) and (3) connotes mandatory compliance and gives no room for discretion, he however held that it is not an immutable rule.
“It is trite law, no doubt, that whenever the word shall is used, it connotes mandatory obligation and that it gives no room for discretion. The word ‘shall’ in it’s ordinary meaning is a word of command which shall be given its compulsory meaning.
” However, the intention of the lawmaker is important. Can the lawmaker approbate and reprobate at the same time? I think not. Can the lawmaker give power with one hand and take with the other? I think not.
“It therefore means that where the court is to interpret the word ‘shall’, it must give substantive justice and not technical justice, the word must be given discretional interpretation. It is not an immutable rule that the word ‘shall’ must be given a mandatory meaning. It is used to mean to give guide and it means in some cases, a guiding requirement or direction.
“I therefore hold that ‘shall’ as used in section 268 (2) and (3) of ACJA 2015, is not a word of command. The discretion of the court is required.
“I therefore hold that the Inspector General of Police shall file a criminal proceeding in the name of the Federal Republic of Nigeria(FRN), contrary to the submission of the defence counsel.
” I hold that Mr. Abi (prosecution counsel) does not need the authority of the Attorney General of the Federation to prosecute this matter, the fiat given to him by the Inspector General of Police suffice, ” Justice Taiwo ruled.