Nwobike V. Frn (2021)

LAWGLOBAL HUB Lead Judgment Report

TIJJANI ABUBAKAR, J.S.C.

The Appellant in this appeal was charged before the High Court of Lagos State presided over by R.I.B. Adebiyi, J on a 3rd amended 18 Counts Information dated and filed on the 27th day of December, 2017 titled (the “Amended Information”) for the offences of offering gratification to a public officer contrary to Section 64(1) of the Criminal Law of Lagos State No. 11 of 2011 (the “Criminal Law”) – Counts 1, 2, 4, 5, and 6; attempting to pervert the course of justice contrary to Section 97(3) of the Criminal Law of Lagos State – Counts 3, 7 to 17; and making false information to an officer of the Economic and Financial Crimes Commission (“EFCC”) contrary to Section 39(2) of the Economic and Financial Crimes Commission (Establishment) Act, 2004 – Count 18. When the charge was read to the Appellant, he pleaded “not guilty” to all the counts. Trial commenced thereafter.

​On the 30th day of April, 2018, the trial Court delivered its judgment and found the Appellant not guilty of Counts 1, 2, 4, 5, 6 and 18 in connection with the offence of offering gratification to a public official; and making false information to an officer of the EFCC, he was consequently discharged and acquitted of those Counts. The Appellant was however found guilty and convicted of Counts 3, 7 to 17, to wit, attempting to pervert the course of justice, and consequently sentenced to thirty (30) days imprisonment on each count, terms of imprisonment to run concurrently.

The Appellant became nettled by the decision of the trial Court. Dissatisfied with the decision of the trial Court, and therefore filed notice of appeal on the 8th day of June, 2018 containing fourteen (14) grounds of appeal.

The Court of Appeal (Coram Ikyegh; Tukur; Tobi; JJCA) allowed Appellant’s appeal in part in a judgment delivered on the 19th day of December, 2019, setting aside the conviction and sentence of the Appellant in Counts 3, 12 and 14 but affirmed his conviction in Counts 7 to 11, 13, 15 to 17 of the Amended Information.

​Still peeved by the decision of the Court of Appeal, (The lower Court) the Appellant further appealed to this Court via notice of appeal dated the 10th day of February, 2020 but filed on the 11th day of February, 2020, containing eleven (11) grounds of appeal.

Learned Senior Counsel for the Appellant, Kanu Agabi, SAN, CON, leading other Senior Counsell filed the Appellant’s brief of argument on the 1st day of June, 2020, the brief was deemed as properly filed and served on the 30th day of September, 2021, Counsel nominated eight (8) issues for determination. Learned Senior Counsel also filed the Appellant’s reply brief on the 14th day of December, 2020.

The issues nominated for discourse in this appeal by the learned Senior Counsel for the Appellant are therefore as follows:

1. Whether, having regard to the provisions of Sections 14 18 of the EFCC (Establishment) Act, 2004 and the decision in Emmanuel Ahmed vs. Federal Republic of Nigeria [2009] 13 NWLR (Pt. 1159) 536 at 552, the EFCC had any authority to investigate and prosecute the Appellant for the offence of attempting to pervert the course of justice charged in Counts 7, 8, 10, 11, 13, 15, 16 and 17 of the Amended Information and if not whether the trial Court and Court below had jurisdiction to try the Appellant or to affirm decision of the trial Court. (Arising from Ground 11 of the grounds of appeal).
2. Whether the Court below was right in affirming the conviction and sentence of the Appellant for the offence of attempt to pervert the course of justice under Section 97(6) of the Criminal Law, having regard to the fact, as found by the learned trial Judge (a finding against which the prosecution did not appeal) that Section 97(3) of the Criminal Law does not define the offence charged and was therefore inconsistent with Section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999 (the “Constitution”) and therefore null and void. (Arising from Grounds 1 and 2 of the grounds of appeal).
3. Whether the Court below erred in law when it affirmed the conviction and sentence of the Appellant for the offence of attempt to pervert the course of justice under Section 97(3) of the Criminal Law, when the conduct of the Appellant did not constitute an offence define the law under which he was charged. (Arising from Grounds 3 and 5 of the grounds of appeal).
4. Whether their Lordships of the Court below erred in law when they applied the reasonable man’s test to their interpretation or construction of Sections 97(3) of the Criminal Law, and 36(12) of the Constitution, when as found by the learned trial Judge, Section 97(6) of the Criminal Law, did not disclose any offence known to law. (Arising from Ground 4 of the grounds of appeal).
5. Whether their Lordships of the Court below were right when they held that Section 97(3) of the Criminal Law was not inconsistent with Section 36(6)(a) of the Constitution, in view of the apparent breach of the provisions of Section 36(2) of the Constitution. (Arising from Ground 6 of the grounds of appeal).
6. Whether their Lordships of the Court below erred in law when they relied on the decision in Okpa v. State [2017] 15 NWLR (Pt. 1587) 1 to affirm the conviction and sentence of the Appellant having regard to the peculiar facts and circumstances of the instant case and the decision of this Honorable Court in Adegoke Motors vs. Adesanya [1989] 5 SC 113 and Oyeneyin vs. Akinkugbe [2010] 4 NWLR (Pt. 1184) 265 at 286, amongst others. (Arising from Ground 7 of the grounds of appeal).
7. Whether in view of the findings of the Courts below regarding the knowledge of the Appellant at the times the text messages were sent (i.e. that the Appellant knew that Mr. Jide was not responsible for the assignment of cases and had no powers to assign cases), the decision of the Court below that the Appellant intended, by sending the text messages to Mr. Jide, to tempt him to assign the Appellant’s cases to preferred judges is perverse. (Arising from Ground 8 of the grounds of appeal).
8. Whether the issue formulated by the Court below and on the basis of which it proceeded to affirm the conviction and sentence of the Appellant for the offences discharged in Counts 7, 8, 9, 10, 13, 15, 16 and 17 of the Amended Information dated the 27th day of December, 2017, is prejudicial and inconsistent with the principles established by this Court to guarantee fair trial in the cases of Mbanefo vs. Molokwu [2014] 6 NWLR (Pt. 1403) 377 (SC) and Mogaji vs. Odofin (1978) 4 SC 91 as well as Ewulu vs. Nwankpu [1991] 8 NWLR (Pt. 210) 487 at 507 (CA) and Leko vs. Soda [1995] 2 NWLR (Pt. 378) 432 at 444 (CA). (Arising from Ground 10 of the grounds of appeal).

​On the part of the Respondent, learned Counsel Buhari, Esq., leading other counsel filed the Respondent’s brief of argument on the 2nd day of December, 2020 on behalf of the Respondent. The learned Counsel for the Respondent nominated the following three issues for discourse.

1. Whether the EFCC had authority to investigate and prosecute the Appellant for the offence of attempting to pervert the course of justice (Arising from Ground 11 of the grounds of appeal).
2. Whether the Court below was right in affirming the conviction and sentence of the Appellant for the offence of attempt to pervert the course of justice under Section 97(3) of the Criminal Law. (Arising from Grounds 1, 2, 3, 5, 6, 8 and 10 of the grounds of appeal).
3. Whether having regard to the evidence led, together with the exhibits tendered, it can be said that the lower Court erred in upholding the Appellant’s conviction on Counts 7, 8, 9, 10, 11, 13, 15, 16 and 17 of the Amended Information by the trial Court. (Arising from Grounds 4, 7, 9, 11, 12, 13 and 14 of the grounds of appeal).

SUBMISSIONS OF COUNSEL FOR THE APPELLANT

ISSUE ONE

Learned Counsel for the Appellant said that Counts 7, 8, 9, 10, 11, 13, 15, 16 and 17, which border on attempt to pervert the course of justice, relate to a non-financial crime, for which the EFCC has no power to investigate and prosecute. Reference was made to Sections 6, 7, 14-18 and 46 of the EFCC Establishment Act. It is the contention of learned senior Counsel that where a statutory body acts outside the law setting it up or conferring powers on it, such act, irrespective of the objective, will amount to a nullity, relying on the cases of KNIGHT FRANK & RUTLEY (NIG.) LIMITED & ANOR. V. A.G. KANO STATE [1998] 4 SC. 251 at 261-262 and NYAME V. FRN [2010] 7 NWLR (Pt. 1193) 344 at 403.

Learned Senior Counsel relied on the case of EMMANUEL AHMED V. FEDERAL REPUBLIC OF NIGERIA [2009] 13 NWLR (Pt. 1159) 536 at 551-552, to emphasize the point that the Economic and Financial Crimes Commission can only investigate and prosecute offences relating to economic and financial crimes. Counsel said that penal legislation or provisions must be interpreted strictly, relying on the case of BOVOA V. F.R.N. (2017) LPELR- 43006 (CA). Learned senior Counsel noted that the mere fact that the EFCC is the coordinating agency for the fight against corruption in Nigeria does not confer on it the unfettered powers to initiate prosecution in respect of all offences in Nigeria. Counsel finally contended that even though this issue was not raised before the Courts below, to the extent that it borders on issue of jurisdiction, particularly on the fact that the case was not initiated by due process of law and upon fulfillment of condition precedent to the exercise by the Court of its of jurisdiction, it can be raised in this Court for the first time and without leave, relying on the case of APGA V. OYE & ORS. (2018) LPELR-45196 (SC); ALHAJI TAJUDEEN BABATUNDE HAMZAT & ANOR V. ALHAJI SALIU IREYEMI SANNI & ORS. (2015) LPELR-24302 (SC). Learned Senior Counsel contended that it is elementary that proceedings, no matter how well conducted, without jurisdiction will be null and void, such proceedings Counsel said will not have recognition in legal parlance, he referred this Court to OLUBUNMI OLADIPO ONI V. CADBURY NIGERIA PLC (2016) LPELR-26061 (SC), R V. BOUNDARY COMMISSION FOR ENGLAND, EX-PARTE FOOT (1983) 2 WLR 458, STATE V. ONAGORUWA (1992)2 SCNJ 1, KALU V STATE (1998) 13 NWLR (Pt. 531), MOSES V. STATE (2006) ALL FWLR (Pt. 322) and EZEZE V. THE STATE (2004) 14 NWLR (Pt. 814)491 and urged the Court to resolve this issue in favour of the Appellant, set aside the charge, conviction and sentence in Counts 7-11, 13 and 15-17.

ISSUES TWO, THREE AND FOUR