Agnes U. Ebubedike V. Federal Republic Of Nigeria & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering The Leading Judgment)

This is an appeal by the Appellant (4th Defendant in the Lower Court), against the decision of Okunnu J, of the High Court of Lagos State delivered on 24th May, 2011. The learned trial judge dismissed the Appellant’s Notice of Preliminary Objection challenging the competence of the information preferred against him and the jurisdiction of the trial Court to entertain same.

The background facts of the case is as follow:

1.01 The Appellant is a former Executive Director of Finbank Plc. During her tenure as Acting Executive Director, she was based in Abuja and her main Port-folio was Operations and Information Technology. In that capacity, her responsibility was basically for banking operations and information technology issues.

1.02 Sometime in August 2009, the Central Bank of Nigeria (CBN) removed the Managing Director of Finbank Plc along with other directors of the Bank and subsequently referred the Appellant along with the other removed directors to the Economic and Financial Crimes Commission (EFCC) for prosecution on account of alleged financial crimes in the banking sector and capital market.

1.03 The 4th Defendant/Appellant along with four others was arraigned by the EFCC, on an 11 count charge before the Federal High Court in Charge No. FHC/L/293c/2009, FRN VS. OKEY NWOSU and subsequently admitted to bail. The charge was subsequently amended on 9 November, 2009 to an Amended 90 count charge involving, inter alia, allegations of offences committed under the Investments and Securities Act 2007 (counts 1 – 13).

1.04 After her arraignment, the Appellant alongside other accused were admitted to bail on the condition that on the 1st working day of every month the Appellant must report at the 1st Respondent’s office, Thereafter applications were filed to quash the charges on jurisdictional grounds and the absence of a prima facie case among other grounds.

On 23 July 2010, his Lordship Abutu J, delivered a Ruling upholding the applications and quashed 47 counts out of the 90 count charges leaving an outstanding of 43 counts. The Appellant promptly filed a Notice of Appeal to the Court of Appeal against the decision of the court to sustain the other 43 charges and applied for a stay of proceedings.

1.05 The Respondent, however on 18 October 2010 filed an Amended Charge after the appeal had been lodged. Prior to the amendment of the charges, specifically on the 2nd of November 2009, the Respondent had on its part commenced Administrative proceedings committee (APC) proceedings at the Securities and Exchange Commission against the Appellant on the same allegations of misconduct in the capital market.

1.06 The Appellant through her counsel participated in the hearing of the said proceedings with other Respondents wherein various objections and preliminary issues were raised. The Appellant as well filed a response brief to allegations of findings against her and the matter was accordingly adjourned after all Respondents were heard.

1.07 Notwithstanding the pendency of this administrative proceeding of the SEC and the criminal proceedings against the Appellant, the Respondent purportedly in pact with the CBN further invited the Appellant for interrogation under what the Respondent described in on invitation letter dated 11 May 2010 as a “CBN/SEC” task force” investigation the intervened banks. The Appellant in view of pending proceedings against her and upon the advice of her counsel regarding the non statutory nature of the body (described as a joint task force established by the Respondent and the CBN) refrained from appearing before the said task force as no written invitation was sent to her.

1.08 The Respondent further to the above initiated an action as a complainant before the Investment and securities Tribunal in 1ST Suit No: 1ST/OA/8/2010 on the same set of facts. This matter is also pending before the 1ST.

1.09 While the Appellant went on her monthly visit to the EFCC on the 1st working day in May 2011 in

fulfillment of her bail conditions, she was detained by the 1st Respondent and served with a new charge preferred against her at the state High court on the same set of facts as in the Charge No. FHC/L/CS/293C/2009 and Suit No. 1ST/OA/8/2010 where she is currently standing trial. The Appellant promptly objected to the new charges before the State High Court on grounds of lack of jurisdiction abuse of process and double jeopardy.