Christopher Okwara Mbah V The State (2014)

LAWGLOBAL HUB Lead Judgment Report

I.T. MUHAMMAD, J.S.C.

The facts of the case before the trial court (High Court of Justice of the Federal Capital Territory, Abuja) are, as herein below stated, briefly: in the month of October, 2001, unknown gun men allegedly invaded the Abuja residence of Dr. (Mrs.) Dorathy Akunyili, ostensibly for the purpose of firing gunshots at her. They did not succeed. Then on the 26th of December, 2003, Dr. [Mrs.] Dora Akunyili was allegedly attacked by gun men at AGULU, Anambra State. Names of persons suspected to have participated in the attempt to assassinate the former Director of the National Agency for Food and Drug Administration and Control (NAFDAC) were given as follows:

1. Francis C. Okoye (a.k.a Ebubedike)
2. Emmanuel Nnamdi Nnakwe (a.k.a. Aboy)
3. Marcel Nnakwe
4. Emeka Orjiakor
5. Christopher Okwara Mbah (a.k.a. Persus)
6. Olisa Emeka Igbokwe (a.k.a. Holy War) and
7. Jude Ugwu (a.k.a. Agada).

The Attorney-General of the Federation gave a fiat to the firm of Chief Afe Babalola to prosecute the persons suspected to have participated in the assassination attempt. An ex-parte application was filed accordingly by the said firm for leave to prefer a charge against the suspects for arraignment before the trial court. Leave to prefer the charge was granted and the following four count charge was preferred:

1. “That you Francis C. Okoye (a.k.a. Ebubedike). Emmanuel Nnamdi Nnakwe (aka Aboy), Marcel Nnakwe, Emeka Orjiakor, Christopher Okwara Mbah (aka Persus) I Olisaemeka Igbokwe (aka Holy War), Chukuka Ezeukwu and Jude Ugwu (aka Agada) on or between October 2001 to December 2003 at different places in the Federal Capital Territory and Anambra State agreed to do or cause to be done an illegal act to wit cause the death of Dr. (Mrs.) Dora Akunyili Director General, National Agency for Food and Drugs Administration and Control (DG NAFDAC) and that the said act was attempted to be done in pursuance of an agreement and that you thereby committed an offence punishable under Section 97 of the Penal Code.
2. That you Francis C. Okoye (a.k.a. Ebubedike), Emmanuel Nnamdi Nnakwe (aka Aboy), Marcel Nnakwe, Emeka Orjiakor, Christopher Okwara Mbah (aka Persus), Olisaemeka Igbokwe (aka Holy War), Chukuka Ezeukwu and Jude Ugwu (aka Agada) on a day in the month of October 2001 at about 7pm at DG NAFDAC’s residence on Freetown Crescent, Wuse II, Abuja did act, to wit, caused unknown gun men to invade the residence of Dr. (Mrs) Dora Akunyili Director General, National Agency for Food and Drugs Administration and Control (NAFDAC) and forcibly entered the rooms in the House in search of the said Dora Akunyili for the purposes of firing gun shots at her with such intention and or knowledge and under such circumstances that if by that act you had caused the death of the said Dora Akunyili you would have been guilty of culpable homicide punishable with death and that you thereby committed an offence punishable under section 229 of the Penal Code.
3. That you Francis C. Okoye (aka Ebubedike), Emm anuel Nnamdi Nnakwe (aka Aboy), Marcel Nnakwe, Emeka Orjiakor, Christopher Okwara Mbah (aka Persus), Olisaemeka Igbokwe (aka Holy War), Chukuka Ezeukwu and Jude Ugwu (aka Agada) on the 26th day of December 2003 at Agulu in Anambra State did an act to wit, caused gunshots to be fired at Dr. (Mrs) Dora Akunyili Director General National Agency for Food and Drugs Administration and Control (NAFDAC) while driving Inside her Peugeot 406 Saloon Official Car with such intention or knowledge and under such circumstances that if by that act you had caused the death of Dr. (Mrs.) Dora Akunyili DG NAFDAC you would have been guilty of culpable homicide punishable with death and that you thereby committed an offence punishable under Section 229 of the Penal Code.
4. That you Francis C. Okoye (aka Ebubedike), Emmanuel Nnamdi Nnakwe (aka Aboy), Marcel Nnakwe, Emeka Orjiakor, Christopher Okwara Mbah (aka Persus), Olisaemeka Igbokwe (aka Holy War), Chukuka Ezeukwu and Jude Ugwu (aka Agada) on the 26th day of December 2003 at Agulu in Anambra State did commit culpable homicide punishable with death in that you caused the death of the One Emeka Onuekutu by doing act to wit caused several gun shots to be fired at Dr. (Mrs.) Dora Akunyili DG NAFDAC while driving inside her Peugeot 406 Saloon Official car which gun shot missed their target but instead hit the deceased inside his Mitsubishi L 300 Minibus with REG. NO. AE763AJL with the intention of causing the death of and or with the knowledge that the death of the said Emeka Onuekutu would be the probable consequence of your act thereby committed an offence punishable under Section 221 of the penal Code.”

Before the commencement of trial, learned counsel for the 2nd and 3rd accused persons filed and served the prosecution with a Notice of Preliminary Objection seeking to quash or set aside the fiat issued by the Federal Attorney-General. In the preliminary Objection, the jurisdiction of the trial court to entertain the four counts as charged was also challenged on the ground, inter alia, that the territorial jurisdiction of Federal Capital Territory, Abuja High Court (trial court), does not extend to AGULU, Anambra State, where the NAFDAC Director General was attacked.

On 23rd January, 2004 the 2nd and 3rd accused persons withdrew their application challenging the jurisdiction of the trail court which was struck out. Trial thereafter commenced the same day when the prosecution opened its case by calling Dr. Dora Akunyili, as its 1st witness.

Learned counsel for the 2nd and 3rd accused persons, Chief Gani Fawehinmi (SAN) of (blessed memory) refiled his Notice of Preliminary Objection which was earlier struck out. The learned trial judge deferred the hearing of the Preliminary Objection to a date when the accused persons would have argued their “no case” submission. On 23/9/05, the learned trial judge upheld the application of “no case” submission of the 2nd and 3rd accused persons in respect of counts 1 and 2. In respect of counts 3 and 4, the learned trial judge declined jurisdiction. He also declared the leave to prefer the charge granted by him earlier, a nullity and same was set aside.

On appeal, the court below agreed with the learned trial judge that the appellant had no case to answer in respect of counts 1 and 2 of the charge but that the trial court should assume jurisdiction to continue with the hearing of counts 3 and 4.

It is against that decision that the appellant approached this court for a relief wherein, this court should make an order setting aside that part of the court below’s decision which held that the High Court of the FCT, Abuja, has jurisdiction to entertain counts 3 and 4 of the charge preferred and affirm the trial court’s decision declining jurisdiction to entertain counts 3 and 4 of the charge.

On the hearing date of this appeal (30/01/14) learned counsel for the respective parties, each adopted and relied on the brief of argument settled by him.

In his brief of argument the learned counsel for the appellant, Mr. Ojuwa, framed a lone issue for determination which reads as follows:

“Whether the Court of Appeal was right in holding that the High Court of the Federal Capital Territory, Abuja has jurisdiction to entertain the offences alleged in counts 3 and 4 of the charge preferred against the appellants”

Learned counsel for the respondent, Mr. Akomalafe, framed almost same issue as appellant’s issue above, though with slight addition of a question on the validity of the fiat to prosecute the accused persons issued to Afe Babalola’s firm.

In his submissions in the brief, learned counsel for the appellant stated that the offences in counts 3 and 4 allegedly took place in Agulu, in Anambra State and nowhere near the FCT, where the appellant was charged and being tried. He argued that the law governing the crimes is the Criminal Code Law of Anambra State. That the Penal Code under which the appellant and others were charged does not apply in Anambra State and it cannot be enforced in Anambra State directly or indirectly. Further, the offences alleged the appellants in counts 3 and 4 can only be prosecuted by the Attorney-General of Anambra State who is constitutionally empowered under Section 211(1) of the Constitution, 1999. Learned counsel submitted further that the court below made an inexplicable summersault in its conclusion and sought to rationalize on the basis of extraneous and legal factors why the appellant was charged in the FCT High Court instead of Anambra State High Court. The court below, he argued, blew both hot and cold, making it to suffer the indignity and opprobrium of approbation and reprobation. That court was wrong in its conclusion that the trial court has jurisdiction to entertain counts 3 and 4 of the charge against the appellant and others. The cases of Adeniji v. State (2001) 13 NWLR (Pt.703) 375 and Patrick Njovens v. The State (1973) 1 NWLR 331, are absolutely unhelpful to the case of the respondent as the facts and circumstances are not the same and are distinguishable. It was argued further that the appellant was arrested in Onitsha and brought to the FCT Abuja. Learned counsel for the respondent at the end, made references to Section 134 of the Criminal Procedure (CPC) which provides for venue of instituting a criminal proceeding and the case of Onwudiwe v. FRN (2006) 10 NWLR (Pt.988) 382 at 425 A – C. He urged that the appeal be allowed as no element of any of the offences alleged in counts 3 and 4 of the charge against the appellant occurred in Abuja, FCT, to confer jurisdiction on the FCT High Court.

Learned counsel for the respondent made his submissions (which is summarized) as follows: That by virtue of some statutory and judicial authorities relevant to the facts and circumstances of this case, particularly, counts 3 and 4 of the charge, the lower court’s decision that the trial court has jurisdiction to entertain the said counts, is found, logical and was borne out of good reasoning. That a High Court of Justice will not be permitted to prefer the decision of the Court of Appeal to that of the Supreme Court on the same issue, principle or interpretation of the same law. He cited the cases of Emogu v. State (1997) 9 NWLR (Pt.519) 25 at 38 – B; Clement v. Iwuanja (1989) 3 NWLR (Pt.107) 39 at 53 – 54 H-A; FGN v. Oshiomole (2004) 3 NWLR (Pt.860) 305 at 324 G; Cardoso v, Daniel (1986) 2 NWLR (Pt.20) 1 at 5. Learned counsel for the respondent repeated his argument before the trial court that the FCT Abuja High Court can assume jurisdiction to try the case on hand, relying on the cases of Patrick Njovens v State (2001) 13 NWLR (Pt.730) 375 at 392 – 393. He argued that mere entry of the accused person to the jurisdiction of the court where they were eventually arraigned conferred jurisdiction on the court, whether or not the crime was committed within such jurisdiction irrespective of how such an accused person entered into the jurisdiction. He submitted further that by virtue of Section 4(2)(b) of the Penal Code Act, the High Court of FCT Abuja has the jurisdiction to try this case. Learned counsel drew distinction between the cases of Waziri v. State (1997) 3 NWLR (Pt.496) 689 at 716 F – H and Ngige v. Chukwu (2005) 2 NWLR (Pt.909) 123 at 147-9, arguing that Waziri’s case (supra), though of similar facts, is a Court of Appeal decision and Ngige’s case is a civil one which has no direct or remote relevance to the issue of entry of an accused person within the jurisdiction of the court in criminal matters. Further submissions by learned counsel are that in criminal matters, it is the charge(s) and not the evidence of prosecution witnesses that determine the court’s jurisdiction. Counts 1 and 2 were alleged to have been committed within the FCT, Abuja; there exists a nexus between counts 1 and 2 and counts 3 and 4 of the charge; he cited section 221(d) of the Criminal Procedure Code. In the summary of evidence of PWs 1 and 12 in their proof of evidence, counts 1 and 2 were said to have been committed in Abuja, F.C.T, Pw17 gave evidence on how the accused persons entered the jurisdiction of the FCT High Court. And, the evidence referred to in all the above instances showed that all the accused persons, one way or the other, entered into the FCT, Abuja before they were charged to the trial court. Learned counsel cited the provisions of Sections 134 to 139 of the Criminal procedure Code, Act, Cap 491 Laws of the Federation of Nigeria, 1990, which learned counsel argued, confer jurisdiction in respect of offences relating to counts 3 and 4, on the trial court. Further case law authorities such as Lawson v. State (1975) 4 SC; 115; 121; Okoro v. Attorney-General (1965) 1 All NLR 283, were cited as well, all in support, that the trial court has jurisdiction to try counts 3 and 4 of the charges in addition to the fact that PW1 was on a journey through Agulu, en route Enugu to Abuja where PW1 resides.