Can Criminal Charges Be Filed Against a Public Officer Before or Without Disciplinary Action?

CASE TITLE: SIDI v. FRN & ORS (2024) LPELR-62922(CA)

JUDGMENT DATE: 30TH AUGUST, 2024

JUSTICES: HAMMA AKAWU BARKA, JCA
ADEMOLA SAMUEL BOLA, JCA
KENNETH IKECHUKWU AMADI, JCA

DIVISION: ABUJA

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

FACTS:

This appeal arose from the decision of the Federal High Court sitting in Abuja Judicial Division of the Court, delivered by Hon. Justice M. O. Olajuwon on November 15, 2023.

The appellant and other accused persons were charged for the offence of money laundering.

It was the case of the prosecution that the Appellant and the 2nd respondents, who were members of staff of the Federal Inland Revenue Service (FIRS), improperly received payment from the funds of the FIRS by taking possession or transferring and using funds belonging to FIRS via Duty Travel Allowance (DTA)

The appellant at the trial Court filed a preliminary objection on the grounds that the prosecution and the trial court lack the jurisdiction to try the appellant for the offences as there was no prior investigation and enquiry by the Federal Civil Service Commission pursuant to the Public Service Rules; the proof of evidence did not establish a prima facie case against the appellant and that the charges were undated.

The learned trial Judge dismissed the Appellant’s Notice of Preliminary Objection. Aggrieved with the decision, the Appellant appealed.

ISSUES: FOR DETERMINATION

The Court considered the following issues:

1. Whether the provisions of Section 158(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Public Service Rules and Paragraph 11(1) of the Third Schedule to the Constitution (supra) are conditions precedent which must be followed and/or complied with before the arraignment of the Appellant by the EFCC and trial by the lower Court on the charge of money laundering.

2. Whether the content of the proof of evidence support the charge of money laundering levied against the Appellant.

3. Whether the absence of precise dates in the charge sheet renders the charge defective

COUNSEL SUBMISSIONS:

The learned counsel for the appellant submitted that the learned trial Judge had no jurisdiction to proceed with the criminal proceedings against the appellant especially for lack of prior involvement of the Federal Civil Service Commission and the Federal Inland Revenue Service (FIRS) before the commencement of investigation and prosecution of the case against the appellant and the 2nd–9th respondents. It was submitted by the appellant’s counsel that the Public Service Rules 2008 provided for duty tour allowances as part of the condition of service for the appellant and other public servants. Therefore, the alleged violation of the Public Service Rules in the enjoyment of an entitlement provided by the rules itself, is a matter within the constitutional jurisdiction of the Federal Civil Service Commission not EFCC, a non-constitutional body.

It was further submitted that Section 158(1) and Paragraph 21 of the Third Schedule of the Constitution are of equal Constitutional force. Section 158 (1) and Paragraph 11(1) (b) of the Third Schedule of the Constitution, which make the Federal Civil Service Commission to have similar constitutional powers with the National Judicial Council except that while the National council is constitutionally established for the Judges, the Federal Civil Service Commission is constitutionally established for the public servants over whom the Public Service Rules prevail as applicable in this case to the appellant.

The Respondents filed no Brief of Argument.

DECISION/HELD:

In the final analysis, the appeal was dismissed.

RATIO:

PUBLIC SERVICE – PUBLIC SERVICE RULES: Whether a criminal action could be taken against a public officer before the exercise of disciplinary action against him or her

“Section 158(1) of the Constitution (supra) confers disciplinary power over the officers of the Federal Civil Service Commission and the National Judicial Council. Paragraphs 11(1)(b) and 21(1)(b) of the Third Schedule to the Constitution donate disciplinary power to the Federal Civil Service Commission and National Judicial Council and to exercise disciplinary control over the officers. Rules 030409-030412 clearly spell out to the effect that disciplinary action could be effected on any officer or public servant convicted of any criminal offence or criminal offence is to be instituted against an officer or contemplated. The rules contemplate that a disciplinary action could be exercised against a public officer by the Federal Civil Service Commission having been convicted or about to be convicted of a criminal offence, even if such criminal proceeding is under contemplation. The rules are not indicative or suggestive that no criminal action could be taken against a public officer before the exercise of disciplinary action against him or her. The rules do not suggest or provide that the FCSC must have investigated and exercised its disciplinary power over an officer prior to the investigation being conducted by the EFCC and trial of the offending officer in the Court. Nowhere in the rules is the condition spelt out that an investigation by the commission in respect of offence committed by an officer or the administration of disciplinary action should precede persecution by the EFCC and/or trial in a Court of law in respect of a criminal offence. Without doubt, from the rules, a Public Officer can be investigated, charged to Court and tried for the offence before or even during the exercise of disciplinary control over the officer by the commission. Neither does Section 158(1) or Paragraph 11(1)(b) of the Constitution contemplates discipline by the commission before prosecution by a law enforcement agency in a Court of law. In other words, it is neither mandatory nor a condition precedent that administrative disciplinary measures be exercised by the Federal Civil Service Commission of the FIRS Board before prosecution in a Court of law in respect of matters that are criminal in nature. The rules of the Public Service are bereft of such provision, including Section 158(1) and Paragraph 11(1)(b) of the Third Schedule to the Provision and Section 154 of the FIRS Act.” Per BOLA, J.C.A.

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