Bayo Dada V. Federal Republic Of Nigeria (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment)

The Appellant and Dr. Erastus Akingbola, Former Managing Director of Intercontinental Bank Plc.,were arraigned at the Lagos State High Court under a Joint Information dated 4/5/11. The Information has 29 Counts, with Counts 17,27,28 and 29 affecting the Appellant. All four Counts allege advance fee fraud against Mrs. Anthonia Akingbola (now at large), and the Appellant, who was General Manager of Tropics Securities Ltd.

The Counts allege that with intent to defraud, he obtained various sums of money from the said Bank, by falsely pretending that it was indebted to Tropics Securities Ltd., for purchase of Shares on behalf of the Bank. He challenged the jurisdiction of the Court on the following Grounds –

(i) The Counts against [him] are in respect of monies allegedly obtained by false pretences from Intercontinental Bank Plc. for the purchase of shares quoted/traded on the floor of the Nigerian Stock Exchange.

(ii) The Counts relate to Capital Market Transactions, which are under the Exclusive Legislative List (Part 1 of the Second Schedule to the 1999 Constitution as Amended).

(iii) The National assembly has the exclusive powers to legislate on matters relating to Capital Market Transaction. By virtue of Section 251(1)(s) of the 1999 Constitution and Section 7(3) of the Federal High Court Act CAP F12b LFN 20A, the Federal High Court has the exclusive jurisdiction over Counts 15, 27 28 and 29 of this information.

The Application is supported by a 7-paragraph Affidavit. In opposing it, the Respondent filed a 5-paragraph Counter-Affidavit to that effect, and the Appellant responded with a Reply on points of law. The Application was argued on 2/11/2014 and the learned trial Judge, Lawal-Akapo, J., delivered his Ruling on 2/5/2014, wherein he dismissed the Application.

In assuming jurisdiction to entertain the Information, he held as follows –

“The 2nd Defendant is seeking to quash Counts 15, 27-29 in the Information dated 4/5/11 preferred against him. The charges – – are very clear. The offences alleged in the Counts are obtaining money under false pretences the purposes for which the money is meant were not stated but the alleged falsity, which connect defunct Intercontinental Bank Plc. were stated. I find and I hold that the Counts have no basis whatsoever in Capital Market transactions.

A reading of the Counts revealed obtaining money under false pretences and the particulars of the falsity were stated on the Counts. This does not give the Counts the coloration or semblance of Capital Market transactions.”

Dissatisfied with the decision of the lower Court, the Appellant filed a Notice of Appeal containing 7 Grounds of Appeal in this Court, and he distilled 5 Issues for Determination therefrom in his Brief of Argument prepared by Prof. Taiwo Osipitan, SAN, Mrs. Olayemi Badewole and Miss Oluwatosin Adams. His Issues for Determination are as follows –

1. Whether the Learned Trial Judge was right or wrong in his decision that Counts 15, 27, 28 and 29 disclose Offences of Advance Fee Fraud simpliciter notwithstanding the fact that the Information and Proof of Evidence show that the offences in the Counts relate to purchase or non-purchase of Shares of a public quoted Company on the floor of the Nigerian Stock Exchange by a Stock Broking Company.
2. Whether the Learned Trial Judge rightly or wrongly refused to follow the recent decision of the Court of Appeal in Okey Nwosu v. FRN & 3 Ors. which is to the effect that criminal matters within the exclusive legislative list of the National Assembly are within the exclusive criminal jurisdiction of the Federal High Court.
3. Should the Learned Trial Judge ignore or be guided by the Proof of Evidence in deciding the issue of jurisdiction to entertain Counts 15, 27, 28 & 29 of the Information?
4. Whether the Learned Trial Judge rightly or wrongly relied on the decision in NDIC v. Okem Ent Ltd. (2004) 10 NWLR (Pt 880) P.107 at 185-186 in arriving at the conclusion that the Federal and State High Courts have concurrent criminal jurisdiction over criminal causes and matters on the exclusive legislative list of the 1999 Constitution as amended.
5. Whether having regard to the Capital Market transaction nature of Counts 15, 27, 28 & 29 of the Information, the State High Court rightly relied on Section 14 of Advance Fee Fraud Act to assume jurisdiction over the said Counts.

The Respondent, however, believes that a sole Issue for Determination would suffice, and formulated the following Issue in its Brief settled by Emmanuel Ukala, SAN, Godwin Obla, SAN, and Edward C. Okpe, Esq. –

“Whether the trial Court was right when it held that it had the jurisdiction to determine the counts contained in the Information against the Appellant before it”.

In my view, the Issue formulated by the Respondent encapsulates all the complaints in the Appellant’s Grounds of Appeal, and I will adopt same in dealing with this appeal. The Appellant, however, started the ball rolling with arguments on Issue 3, which centers on the lower Court’s refusal to look at the Proof of Evidence in determining the question of jurisdiction.