TAdaoha Ugo-ngadi V. Federal Republic Of Nigeria (2018)
LAWGLOBAL HUB Lead Judgment Report
PAUL ADAMU GALINJE, J.S.C.
The Appellant herein and four (4) other accused persons were arraigned before the Lagos State High Court by the Economic and Financial Crimes Commission (EFCC) charged with obtaining properties by false pretences contrary to Section 1 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 and conspiracy to forge documents, Forgery, and Uttering of false documents contrary to Sections 516, 467 (3)(c) and 468 respectively of the Criminal Code CAP, C 17 Vol 2 Laws of Lagos State of Nigeria, 2003.
Appellant and the co-accused persons pleaded not guilty to the charge. In order to prove its case, the prosecution called twelve (12) witnesses and tendered seventy-one (71) documents which were admitted in evidence. At the close of the prosecution’s case, a no case submission pursuant to Section 239 of the Administration of Criminal justice, Law of Lagos State was made on behalf of the Appellant, 2nd and 5th accused persons. In the no case submission, the Appellant raised the issue of jurisdiction, contending that the evidence led shows that the charge relates to
revenue of the Federal Government, Petroleum and Crude oil products as well as admiralty matters, and that by virtue of the provisions of Section 251 of the 1999 Constitution, the High Court of Lagos State has no jurisdiction to entertain the case.
The Respondent filed a counter affidavit accompanied by a written submission. In a reserved and considered ruling delivered on the 10th October, 2014 the trial Court overruled the no case submission and held that a prima facie case was sufficiently disclosed against the appellant. He was therefore called upon to enter his defence.
Dissatisfied with the ruling of the trial Court, the Appellant appealed to the Court of Appeal, Lagos Division. The appeal was heard and in a reserved judgment delivered on the 30th April, 2015 same was dismissed. The Appellant is once again dissatisfied with the decision of the Court of Appeal. Being aggrieved she has brought this appeal. Her notice of appeal dated 27th May, 2015 and filed on the 3rd of June, 2015 contains seven grounds of appeal. Parties filed and exchanged briefs of argument. The Appellant’s brief of argument, settled by Chief Wole Olanipekun SAN is dated and
filed on the 27th November, 2015, but deemed properly filed on the 28th April, 2016. At page 3 paragraph 3.1 of the said brief of argument, three issues have been formulated for determination of this appeal. I reproduce them hereunder as follows:-
i. Having regard to the Lower Court’s finding that the trial Court breached the principle of fair hearing in striking down Section 19 of the Admiralty Jurisdiction Act (AJA), whether the Lower Court was not in grave error and so acted without jurisdiction when it thereafter failed to set aside the trial Court’s ruling of 10 October, 2014. (Ground 1).
ii. Having regard to the clear provisions of Section 251(1)(a),(g),(n),(s) and (3) of the Constitution, Section 8 (1) of the Federal High Court Act (FHC Act), Sections 1, 2, 19 and 25 of the AJA vis-a-viz the Information preferred against the appellant at the trial Court, as well as the evidence adduced by the prosecution, whether the Lower Court was not in grave error in holding that the trial Court rightly assumed jurisdiction on the Information dated 20 July, 2012. (Grounds 2, 3, 4, 5 and 6).
iii. Whether the Lower Court was not in error when it failed
to be bound and to follow the decision of the Honourable Court in George vs FRN (2014) 5 NWLR (Pt.1399) 1 and its own decisions in Okey Nwosu vs FRN — Appeal No: CA/L/601/11 delivered on 21 November 2013 and Akingbola vs FRN – Appeal No: CA/L/490/14 delivered on 31 December 2014 (Ground 7).
The Respondent’s brief of argument, settled by Rotimi Jacobs SAN is dated and filed on the 28th June, 2017, but deemed properly filed and served on the 11th October, 2017. Learned senior counsel submitted only one issue for determination of this appeal. It reads thus:-
“Whether the Court of Appeal was not right in upholding the decision of the High Court of Lagos State that it had the Jurisdiction to entertain the information contained in charge No.ID/115C/2012 bordering on the offences of obtaining money by false pretence under the Advance Fee Fraud and Other Related Offences Act 2006, Forgery, Uttering and Conspiracy under Sections 467 and 468 of the Criminal Code Cap C17, Volume 2 Laws of Lagos State, Nigeria 2003.”
The facts that gave rise to this appeal are simple and straight forward and they have been ably set out in the briefs of argument by
learned senior counsel for the parties. I will do no more than to recount them in brief. In order to relieve the public of the high cost of petroleum products, the Federal, State and Local Government came up with a scheme in which they contributed certain funds that was referred to as Petroleum Support Fund which fund was used to subsidise fuel import. Under the scheme, petrol is bought locally in Nigeria in the open market at a government subsidised rate. The oil marketing companies, under licence to import petrol into Nigeria would bring in petrol from abroad, having purchased same at the international rate and then submit their claims to the Government for settlement. The amount paid by the Government is the difference in price between the international market rates which is always higher than the subsidised rate. The claim by the marketer under the Petroleum Support Fund is based on what is actually discharged at the tank farm and as verified by the officers of Petroleum Product Pricing Regulatory Authority (PPPRA), Department of Petroleum Resources (DPR), External auditors, the surveyor to the marketers involved, and the surveyor to the tank farm owner.
The Respondent’s case is that sometimes in 2011, it was observed that the subsidy being paid by the Government went up astronomically and this prompted the Minister of Petroleum Resources to forward a petition to Economic and Financial Crimes Commission (EFCC), urging it to carry out investigation into the operation of the Petroleum Support Fund otherwise known as fuel subsidy. The EFCC found in the course of its investigation that Ontario Oil & Gas Nigeria Limited, (the 5th accused at the Lower Court) was one of the companies licensed by Government to import petrol into the country. The Appellant herein is a director in Ontario Oil & Gas Nigeria Limited (henceforth to be called company) and also a signatory to the account of the company. In 2010 the company was given allocation in the 3rd quarter to import fuel. It claimed that following the authorisation, it imported 19,327,460 litres of petrol and discharged same into the Integrated & Gas depot on the 7th July, 2010. During the 4th quarter of the same year the company in pursuance of the licence given to it to import petrol, claimed to have imported 19,523,892 litres of petrol which
it discharged into Obat Oil Storage Facilities in Apapa between 14th and 15th November, 2010. Investigation conducted by the EFCC revealed that the company imported 12,470,706 and 10,146,594.73 litres of petrol for the 3rd and 4th quarters of 2010 respectively and the Appellant and 1st accused person presented false documents which led to over payment of N340,178,111.24 (Three Hundred and Forty Million, One Hundred and seventy-Eight Thousand, One Hundred and Eleven Naira Twenty-four Kobo) and N414,757,890.54 (Four Hundred and Fourteen Million, Seven Hundred and Fifty-seven Thousand, Eight Hundred and Ninety Naira Fifty-four) as fuel subsidy by the Federal Government for 6,815,830.73 and 9,377,298 litres of petrol which were not imported. It was this discovery that gave rise to the arraignment of the Appellant and other accused persons before the High Court of Lagos State.
The second issue for determination of this appeal is challenging the jurisdiction of the Lagos State High Court before which the Appellant is standing trial. Jurisdiction is the sole of adjudication and if the trial Court has no jurisdiction to entertain a matter, an appellate Court
cannot assume jurisdiction over its proceedings that have been conducted without jurisdiction. Consequently it is always expedient to resolve any challenge to jurisdiction first before proceeding to resolve any other issue. See Oloriode v. Oyebi (1984) 1 SCNLR 390; Ezomo vs Oyakhire (1985) 1 NWLR (Pt.2) 195; Sofekun v. Akinyemi (1980) 5 7 SC 1; A-G of Anambra State v. A.G. Fed. (1993) 6 NWLR (Pt.302) 692.
Learned senior counsel for the Appellant in his argument on the 2nd issue, submitted that Section 272 of the Constitution of the Federal Republic of Nigeria 1999 (henceforth to be referred to as “the Constitution”) is made subject to the provisions of Section 251 of the Constitution and therefore Section 272 of the Constitution must be read in subordination to Section 251 of the Constitution. In aid learned senior counsel cited Labiyi vs Anretiola (1992) 8 NWLR (Pt.258) 139 AT 163 164; Achebe v. Nwosu (2003) FWLR (Pt.136) 891 at 907. Learned senior counsel made reference to Section 8(1) of the Federal High Court Act and submitted that the Section of the Federal High Court Act being a Federal enactment takes priority over any State
legislation that purports to vest jurisdiction in the trial Court. In a further argument, learned senior counsel submitted that the criminal jurisdiction of the Federal High Court under Section 251 (3) of the Constitution is a by-product of and tied inextricably to the jurisdiction conferred upon it under Section 251 (1) of the Constitution. It is learned senior counsel’s contention that if the jurisdiction under Section 251 (3) of the Constitution is derivative of the jurisdiction under Section 251 (1) of the Constitution, which is exclusive jurisdiction, then the jurisdiction under Section 251(3) of the Constitution must necessary be exclusive.
Learned senior counsel went on to cite items 36, 39, 67 and 68 of the Exclusive Legislative list contained in the Second Schedule to the Constitution which he says, when read together with the provisions of Section 251 (1) of the Constitution will show clearly that the framers of the Constitution intended that the matters listed therein must in all cases, be Federal matters. Learned senior counsel went on to refer to Section 19 and 25 of the Admiralty Jurisdiction Act (AJA) and spent considerable amount of time
setting out the list of the exhibits which were tendered at the trial Court and submitted that a consideration of the foregoing leads to the conclusion that the subject matter of the information preferred before the trial Court cannot be extricated from the provisions of Section 251 (1)(a),(g),(n) and (s) and Section 251 (3) of the Constitution, Section 8(1) of the Federal High Court Act, Sections 1, 2, 19 and 25 of the Admiralty Jurisdiction Act (AJA).
I wish to pause here in order to consider this brilliant academic argument by learned senior counsel which argument does not seem to fall in line with the decisions of this Court regarding the provision of Section 251(3) of the Constitution. Unlike the State High Court which is a Court of unlimited jurisdiction, the Federal High Court is a special Court with limited, but exclusive jurisdiction clearly specified under Section 251(1)(a- s) of the Constitution. There is nowhere in the Constitution or any other enactment where it is stipulated that any suit in which a Federal Government Ministry, agency, functionary or parastatal is sued is justiciable only in the Federal High Court except those cases
specified under Section 251 (1) (a – s) of the Constitution.
Section 251(1) of the Constitution deals solely with civil matters in which the Federal High Court has exclusive jurisdiction. This is what the Section says: –
“Notwithstanding anything to the contrary contained in this Constitution and in addition jurisdiction to such other as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters
The jurisdiction of the State High Court is donated by Section 272(1) of the Constitution, in the following words:-
“Subject to the provision of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
Section 272 (1) of the Constitution is made subject to Section 251 and other provision of the Constitution with respect to those items where the jurisdiction of the Federal High Court is exclusive. The Section is also made subject to other provisions of the Constitution where exclusive jurisdiction has been conferred on the Supreme Court, the Court of Appeal and Election Petition Tribunals.
In all other matters where exclusive jurisdiction has not been expressly assigned to any other Courts, the State High Court has jurisdiction to hear and determine such matters. Section 251 (3) provides as follows:-
“The Federal High Court shall also have and exercise and jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by Subsection (1) of this Section.
The word ‘exclusive is clearly absent in Section 251 (3) of the Constitution. The word also as used in Subsection (3) of Section 251 of the Constitution is defined by Advanced Learned Dictionary to mean ,’in addition; too, or as well”. If the framers of the Constitution had intended that the Federal High Court should
have exclusive jurisdiction in criminal matters involving the items listed under Section 251 (1)(a – s), they would have said so in clear terms. It is an established cardinal principle of interpretation that the words of a statute which are unambiguous must be given their ordinary grammatical meaning. It is not the function of the Court to import words into the statute which do violence to the intent and meaning of the statutory provision. See Edozien vs. Edozien & Ors (1998) 12 NWLR (Pt.580) at 152; Egbe v. Alhaji & Ors (1990) 21 NSCC (Pt.1) 306 at 325; (1990) 1 NWLR (Pt.128) 546 at 581.
In Attorney General of Ondo State v. Attorney General of the Federation & Ors (2002) 6 SC (Pt.1) 1, the full Court of the Supreme Court, laid to rest the question whether States High Courts have jurisdiction to hear and determine criminal offences created by National Assembly when it held:-
“The Attorney General of the Federation drives his powers under Section 174 of the Constitution as an agency of the Federal Government. The law is well established that the Court cannot control the manner he exercises his powers so conferred — nor can he be prevented
from exercising his functions on the grounds that his jurisdiction does not extend to any particular State in Nigeria. Section 174 of the Constitution does not impose any such limitation.” See the State vs Ilori (1983) 1 SC NLR 94.”
This Court came to the conclusion that by virtue of Section 174 (1) Section 286 (1)( b) of the 1999 Constitution, the Attorney-General of the Federation or any person authorised by the Independent Corrupt Practices Commission (ICPC), a Federal Government Agency, can lawfully initiate or authorize the initiation of criminal proceedings in any Court other than a Court martial in any State of the Federation in respect of offences created by the Corrupt Practices and Other Related Offences Act, 2000.
Section 19 (1) of the Economic And Financial Crimes Commission Act 2004 provides that the Federal High Court or High Court of a State or the Federal Capital Territory has jurisdiction to try offenders under this Act. Subsection 3 of Section 19 of the EFCC Act provides as follows:-
“The Chief Judge of the Federal High Court or a High Court of a State or the High Court of the Federal Capital Territory Abuja, as the case may
be, shall by order under his hand, designate a Court or judge or such number of Courts or judges as he shall deem appropriate to hear and determine all cases under this Act or other related offences arising under this Act.
By Section 7(2)(b) and (f) of the same Act, the Economic And Financial crimes commission shall be the coordinating agency for the enforcement of the provision of the Advance Fee Fraud and Other Related Offences Act 1995 and any other law or regulation relating to economic and financial crimes, including the Criminal Code and Penal Code. The Appellant was arraigned before the Lagos State High Court for offences under the section of Advance Fee Fraud and Other Related offences and Sections of the criminal code which the EFCC is empowered to coordinate the enforcement of their provisions.
By the provision of Section 251(1) of the Constitution, the National Assembly notwithstanding anything to the contrary contained in the Constitution conferred additional jurisdiction on the Federal High Court in respect of criminal matters which jurisdiction is not exclusive. There is nowhere in the Constitution where the jurisdiction of State
High courts in respect of the Federal cause as provided by Section 286 (1)(a) has been removed. I am of the firm view that the Lagos State High Court has jurisdiction to hear and determine the charges for which the Appellant was arraigned before it.
The charges against the Appellant have nothing to do with carriage of goods by sea or petroleum products. Even though the charges mentioned the goods whose proceeds were obtained by false pretences and the documents in relation to the goods which were forged and uttered, there is no evidence that the offences in this case were committed when the goods were on board ship on the high sea. The petroleum product in respect of which the offences were alleged to have been committed had been discharged into various tank farms in Nigeria. This being so, admiralty jurisdiction had ended with the discharge of the petroleum product. See Petro Jessica & Anor vs. Leventis Technical Co. Ltd (1992) NWLR (Pt.244) 675; American International Inc. vs Ceekay Traders Ltd (1981) 5 SC 50. The charges against the appellant do not call for the invocation of admiralty jurisdiction of the Federal High Court. The appellant was arraigned
before the trial Court for forging and uttering of documents and by so doing collected money from the Federal Government for goods that were not supplied. These charges have nothing to do with either petroleum products or revenue of the Federal Government of Nigeria. There mere fact that goods at one stage in their movement had a voyage on a ship does not give rise to admiralty jurisdiction. See Texaco Overseas Petroleum Co. Ltd vs. Pedmar Nig Ltd (2002) 13 NWLR (Pt.785) 526.
I agree with the lower Court when it held that the trial Court, that is the Lagos State High Court has jurisdiction to hear the case before it. This issue is resolved against the Appellant.
On issue 1, learned senior counsel made reference to the Lower Courts judgment at page 2166 of the printed record of this appeal, where it held:-
Furthermore, this was done by the Court, suo motu which violates the principle of fair hearing. See Katto vs. CBN (1991) 9 NWLR (Pt.214) 126; Oloriode vs. Oyebi (1984) 5 SC 1 at 32 33; Ezomo vs. Oyakhire (1985) 2 SC 260 AT 282; Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508 at 520, counsel were not invited to address the Court
before the striking down was done. It was done from the blues so to speak. Therefore it cannot be allowed to stand. In this regards, I set aside that part of the decision striking down Section 19 of the Admiralty Jurisdiction Act (AJA) 1991, and submitted that such finding ought to have resulted in the setting entire aside of the decision of the trial Court. According to the learned senior counsel, this Court has been consistent in holding that once a breach of fair hearing is found in any proceedings/decision, the entire proceedings/decision becomes automatically vitiated and nullified by such breach, regardless of the actual consequences of the breach. In aid, learned senior counsel cited Danladi v. Dangiri (2014) 11 SC 1 at 71 & 75; Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628 at 645; Idakwo v. Ejiga (2002) 13 NWLR (Pt.783) 156 at 165 166.
I have held elsewhere in this judgment that the Admiralty Jurisdiction Act does not apply to this case. The issue of striking down its Section 19 is irrelevant as far as this case is concerned.
The right to fair hearing is a constitutional right enshrined in Section 36 of the
Constitution and it is very essential to the propagation of justice. The basic attribute of fair hearing include:-
(a) That the Court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision which prejudiced may be to any party in the case;
(b) That the Court gives equal treatment, opportunity and consideration to all concerned;
(c) That the proceedings be heard in public and all concerned shall be informed of and have access to such place of hearing; and
(d) That having regard to all circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.
See Usani vs. Duke (2004) 7 NWLR (Pt.871) 116; Fagbule vs. Rodrigues (2002) 7 NWLR (Pt.765) 188; Adeniran vs. NEPA (2002) 14 NWLR (Pt.786) 30; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290.
A breach of the right of fair hearing that will vitiate a trial and ultimately lead to the setting aside of the decision reached, will depend on the facts of the case. This Court in Magit vs. University of Agriculture Makurdi (2005) 19 NWLR (Pt.959)
211 at 243 244 held:-
“Fair hearing is not a cut and dry principle, which parties can in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or inapplicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.” See Olowu vs Nigerian Navy (2011) 10 NWLR (Pt.1279) 659.”
From the facts of this case, as I have alluded to earlier Admiralty Jurisdiction Act is inapplicable and reference to the striking down of its Section 9 by the trial Court suo motu without calling for further address, has no relevance to this case. I am also of the firm view that the decision of the Lower Court has not occasioned a miscarriage of justice. A wrongful admission of evidence or a wrongful consideration of an issue which is alien to the case under consideration cannot be a ground for reversal of a decision where it appears on appeal that such evidence or wrongful consideration of such issue cannot be reasonably be held to have affected
the decision and that the decision would have been the same if such evidence had not been admitted and the consideration of the issue complained of had not been made. See Ezeoke vs Nwagbo (1988) 1 NWLR (Pt.72) 616, Umeojiako vs Ezenamuo (1990) 1 NWLR (Pt.126) 253: Ayeni vs Sowemimo (1982) 5 SC 60.
The decision of the Lower Court in which it declared the striking down of Section 9 of the AJA as amounting to a breach of fair hearing has not affected the credibility of its judgment, and so I hold. The first issue for determination of this appeal is therefore resolved against the Appellant.
On the third issue for determination of this appeal, learned senior counsel for the Appellant submitted that the decision of the Lower Court, as well as that of the trial Court which the Lower Court affirmed, are in breach of the age-long doctrine of stare decisis.
In a further argument, learned senior counsel submitted that the Court of Appeal is not only bound by the decision of the Supreme Court, it is also bound by its decisions. Learned senior counsel gave four exceptions where the Court of Appeal is not bound by its previous decisions as enunciated in
the English case of Young vs Bristol Aeroplane Co. Ltd (1994) 1 KB 718; 2 ALL ER 293 and ratified in a host of Nigerian cases and contended that the Lower Court did not distinguish the facts in George vs FRN (Supra) and the facts in Okey Nwosu v. FRN (2014) 1 BFLR 298 which it refused to follow. It is learned senior counsels further contention that the failure to follow the applicable judicial precedent by the High Court and the Court of Appeal renders their decisions invalid. Okey Nwosu vs FRN (supra) and Akingbola vs FRN are decisions of the Court of Appeal. Learned senior counsel cited them in the brief as unreported. Where a counsel cites a case that has not been reported, he owes the Court a duty to produce a copy of the judgment if he wants this Court to rely on such authority. Where copies of the judgment are not produced, the Court will have nothing to rely upon. The cases are yet to reach this Court, as such I will refrain from commenting on them. However the facts in George vs FRN (supra) are not at all fours with the instant case. George was charged for splitting of contracts, an offence not known to criminal law. This is what this Court said:-<br< p=””
“It is clear from the reproduced portion of Exhibit 3, as above, that it contains guidelines which forbids splitting of contracts by any officer. It stipulates that breach of same shall be met with disciplinary action. This may be in form of administrative action against an officer who breaches the rules. Disobeying Exhibit 3 is not made an offence by any Act of the National Assembly or law of a State House of Assembly or even the contents of Exhibit 3 itself. Even then disobedience of Exhibit 3 is nowhere penalysed in a written law. Any conduct that must be sanctioned must be expressly stated in a written law to wit! An Act by the National Assembly. That is what Section 36 (12) of the 1999 Constitution provides. Such conduct should not be left to conjecture. As well, it cannot be inferred by the Court. It occurs to me that Section 203 of the Criminal Code is not in tune with the dictate of Section 36(12) of the 1999 Constitution. That being the position, the charges filed under Section 203 of the said code ostensibly for splitting contract in disobedience of lawful order by constituted authority cannot stand. Acts said to have constituted authority acts resulting in
abuse of office are splitting of contract which were not known to law at the material time.
The appellant Chief Bode along with others were alleged to have exceeded the limit set to their authority to award contracts and they contrived to bring the contract within their limits by splitting them while also inflating their prices. The same thing cannot be said about the instant case where the offences for which the appellant was arraigned before the trial Court are offences created by the National Assembly and States and are properly codified.
The doctrine of stare decisis come to play when the facts of the previous case and the current one are the same. A Court is not bound to follow the decision of the higher Court when the facts are distinguishable. In the instant case, I am of the firm view that the facts in George vs FRN (supra) is not the same as the facts of the present case. The trial Court and the Court of Appeal were right when they refused to be bound by the decision in George vs FRN (supra). This issue is resolved against the Appellant and in favour of the Respondent.
This appeal is in the nature of interlocutory appeal.
Paragraph 4(e) of the Court of Appeal; (Fast Track Practice Directions 2014 provides that interlocutory appeals pertaining to or connected with corruption, Human trafficking, kidnapping and money laundry should be discouraged in the following words:-
“Active case management includes discouraging interlocutory appeals and requiring the parties, except in the most deserving cases, to subsume their interlocutory matters under a final appeal or under the substantive suit at the trial Court.
The High Courts and the Court of Appeal are hereby called upon to observe and enforce the provision of this practice direction in order to cut down the delay experienced in the hearing and disposal of corruption related cases.
Now, having resolved the three issues submitted by the Appellant for determination of this appeal against the appellant, this appeal shall be and it is hereby dismissed.
The appellant shall appear at the trial Court for the conclusion of her trial.