Kadiri Ajasa Apampa (hereinafter referred to as the appellant) has appealed to this Court, in this appeal, against the judgment of the Federal Court of Appeal which, in turn, had set aside a ruling, made in his favour, by the High Court of Ibadan, of the Oyo State Judiciary, which had held on a submission of no case to answer at the close of the prosecution case, that the prosecution had not made out a prima facie case for the appellant to answer by reason of their failure to prove an essential Ingredient of the offences charged in the Information, namely, that the appellant was a person employed in the public service.

It would, perhaps, be of some assistance to trace the course, so far, of this case, from the record of proceedings, Charged before the High Court on ten Counts of the Information were the appellant and one Isaiah Olatiregun. Of the ten Counts, the appellant had six Counts to himself while Isaiah Olatiregun had four. In five of six Counts the appellant was charged, under section 85 of the Criminal Code Cap.28 Vol.1 Laws of the former Western State of Nigeria, 1959, as a pub¬lic officer, with being interested in contracts, and one Count, under section 88 of the Law, with abuse of office. Olatiregun was also charged on three Counts under the same section 85 of the Criminal Code, and one Count under section 88. Different amounts were alleged in the ten Counts of the Information.

At the conclusion of the case for the prosecution, counsel for the appellant, Chief R.O.A. Akinjide (Mr. Olutunfese, Counsel for the second accused Olatiregun agreeing with him and associating himself with his submissions) made a submission of no case to answer arguing that the University of Ibadan was not a department of Government and, a fortiori, its Department of Anatomy under which the appellant was employed, was not a department of Government; that the Univer¬sity of Ibadan was a creature of statute, namely, the University of Ibadan Act, 1962 and was made, by its section 1 thereof, a body corporate, with all the attributes of a corporation and was responsible for the appointment of its staff. Including the appointment of the appellant; that the said University was created for academic excellence with autonomy for appointment, promotion and dismissal of its staff none of whom came under the Public Service Commission; and finally, that the contracts for equipments, the subject-matter of the Counts of the information, were meant for the Department of Anatomy of the University and not for Government.

Counsel, relying for support, inter alia, on the authorities of Rufus Alli Momoh v. Afolabi Okewale & Another (1977) 6 S.C.81; Gafari Ajidagba v. Adegoke Adelabu (1958) 3 F.S.C. 5 submitted that the appellant was entitled to a discharge on the merits on the principle laid down in Police v. Sydney Marke (1957) 2 P.S.C. 5.

The learned trial judge was of the view, on the ratio decidendi of the decision of Duffus, J. (as he then was) in the Ibadan High Court case, No.1/11c/64Afna v. Director of Public Prosecutions Western Nigeria a case which came upon ap¬peal to the Supreme Court as S.C. 234/1964 - that had the appellant held any of the offices mentioned in the University Act, 1962. he would have had no difficulty in coming to the conclusion that in that capacity he was a person employed in the public service, but, that as he held none of those offices and instead was appointed by the University Council, he must find, and did find, on the authority of Rex v. William Opara 9 W.A.C.A. 70 - a case by which he was bound - that the appellant was not a person employed in the public service- He expressed himself as coming to that conclusion and discharging the appellant "with reluctance".

The prosecution appealed to the Federal Court of Appeal which (as per Uche Omo. J.C.A.) as I have already stated, set aside the said judgment and remitted the case back to the High Court with a direction that the case be proceeded with, on the ground that the prosecution had made out a prima facie case for the defence to answer, and that the defence be called upon to proceed with its own case. It is from this judgment, again as I have already stated, that the appellant has appealed to this Court.