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Home » Nigerian Cases » Supreme Court » Christopher Okwara Mbah V The State (2014) LLJR-SC

Christopher Okwara Mbah V The State (2014) LLJR-SC

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.

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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.

The fiat of the Attorney-General of the Federation to the law firm of Chief Afe Babalola to prosecute the accused persons in the FCT High Court under the Penal Code is valid and properly issued considering the facts and circumstances of the case. Learned counsel for the respondent made reference to part 1 section 1 of the Schedule to the Criminal Procedure Code Act, Section 301 of the 1999 Constitution to press the point that the only authority that can issue fiat to prosecute the charges in this case is the Attorney-General of the Federation and the order nullifying the issuance of the fiat should be set aside. Learned counsel urged this court to dismiss the appeal and to hold that the FCT High Court, Abuja, has the requisite Jurisdiction to entertain this case and order the trial court to proceed with trial of the appellant and his six co-accused.

JURISDICTION, it is said, my lords, is the life-wire of litigation. It is the authority which a court has to decide matters before it or to take cognizance of matters presented before it for decision. See: Ndaeyo v. Ogunnaya (1977) 1 SC 11, Miscellaneous Offences Tribunal v. Okafor (2001) 18 NWLR (Pt.745) 295 at p.326 – 327 H – A.

Where a court, whether inferior or superior, lacks it, it cannot entertain the matter, civil or criminal, sought to be placed before it for litigation as the defect in jurisdiction is fatal to the proceedings however well conducted and is extrinsic to the adjudication. See; Utih v. Onayivwe (1991) 1 NWLR (Pt.166) 166.

Thus, in a criminal matter, the fundamental question to be considered by the trial court at that initial stage of the proceedings, especially where there is objection to the jurisdiction of the court, is not whether the prosecution’s case has merit but whether the accused person is in the right court, In the locus classicus case of Madukolu v. Nkemdilim (1962) 2 SCNLR, 341, the ingredients of jurisdiction of a court have, generally, been stated as follows: that a court has the necessary competence to exercise jurisdiction in a cause or matter if:

(a) it is properly constituted with respect to the number and qualification of its membership

(b) the subject matter of the action is within its jurisdiction;

(c) the action is initiated by due process of law; and

(d) any condition to the exercise of its jurisdiction has been fulfilled.

See also: Utih v. Onayivwe (supra).

Permit me my lords, to consider the provisions of the law which confer jurisdiction on criminal matters on a High Court of Justice of the FCT Abuja.

Firstly, Section 4 of the Penal Code Act, FCT, Abuja, Cap. 532 of the Laws of the Federation, 1990 has made the following enactments:

  1. Where by the provisions of any law of the Federation the doing of an act or the making of an omission is made an offence, those provisions shall apply to every person who is in the Federal Capital Territory, Abuja at the time of his doing the act or making the omission.
  2. Where any such offence comprises several elements and any acts, omissions or events occur which, if they all occurred in the Federal Capital Territory, Abuja would constitute an offence, and any of such acts, omissions or events occur in the Federal Capital Territory, Abuja although the other acts, omissions or events, which if they occurred in the Federal Capital Territory, Abuja would be elements of the offence, occur elsewhere than in the Federal Capital Territory, Abuja, then-

(a) if the act or omission, which in the case of an offence committed wholly in the Federal Capital Territory, Abuja would be the initial element of the offence, occurs in the Federal Capital Territory, Abuja, the person who does that act or makes that omission is guilty of an offence of the same kind and is liable to the same punishment as if all the subsequent elements of the offence occurred in the Federal Capital Territory, Abuja; and

(b) if that act or omission occurs elsewhere than in the Federal Capital Territory, Abuja, and the person who does that act or makes that omission afterwards enters the Federal Capital Territory, Abuja, he is by such entry guilty of an offence of the same kind, and is liable to the same punishment, as if that act or omission had occurred in the Federal Capital Territory, Abuja and he had been in the Federal Capital Territory, Abuja, when it occurred.”

Secondly, Sections 134, 135, 136 and 139 of the Criminal procedure Code Act (for FCT Abuja) Cap. 491 of the LFN, 1990, provide as follows:

  1. An offence shall ordinarily be inquired into and tried by a court within the local limits of whose jurisdiction –

(a) the offence was wholly or in part committed, or some act forming part of the offence was done: or

(b) Some consequence of the offence has ensued; or

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(c) Some offence was committed by reference to which the offence is defined; or

(d) Some person against whom, or property in respect of which, the offence was committed is found, having been transported either by the offender or by some person knowing of the offence.

  1. When it is uncertain in which of several districts an offence was wholly or in part committed, the offence may be inquired into or tried by a court having jurisdiction over any of those districts.
  2. An offence committed by a person whilst he is in the course of performing a journey or voyage may be inquired into or tried by a court through or into the local limits of whose jurisdiction he, or the person against whom, or the thing in respect of which, the offence was committed, resides, is or passed in the course of that journey or voyage.
  3. Whenever a question arises as to which of two or more courts ought to inquire into or try an offence it shall be decided by the Chief Judge.

138.(1) The Chief Judge may, whenever it appears to him that the transfer of a case will promote the ends of justice or will be in the interest of the public peace, transfer a case from one court to another at any stage of the proceedings.

(2) Nothing in this section shall affect powers of transfer under the provisions of the Area Courts Act.

  1. When a court has reason to believe that a person within the local limits of its jurisdiction has committed such limits an offence which cannot under the provisions of section 134 of this Code or any other law for the time being in force triable in the Federal Capital Territory, Abuja, it may inquire into the offence as if it had been committed within the local limits of its jurisdiction and compel the person in the manner herein before provided to appear before it and send him to a court having jurisdiction to inquire into the offence or, if the offence is bailable, nay take a bond with or without sureties for his appearance before the court.”

This court, in an earlier case of Patrick Njovens & 3 Ors v. The State (1973) NSCC 257, whose facts were, to some extent, similar to the facts of entry into jurisdiction of a court as alluded in the case on hand, interpreted the provision of Section 4 of the penal Code Law, Cap 89, Laws of Northern Nigeria.

Even then, it was vividly admitted by this court, which I also do now, that Section 4(2) of the Penal Code Law is not easy to construe. Be that as it may, I align myself completely with the interpretation given in Njoven’s case on some of the key words used in the section. For instance, in Njoven’s case this court reasoned as follows:

“Admittedly, section 4(2) of the Penal Code Law is not easy to construe. The section is concerned with an offence that comprises of several elements and identifies these elements with “acts, omissions or events.” It is clear therefore that the “element” in the section is more widely conceived and is not and should not be limited to either an actus reus or the mens rea in conventional criminal jurisprudence. The “initial element” to which reference is made in the section is the initial act or omission concerned and for the purpose of applying section 4(2) it is necessary to look for that “initial element”. If (a) that “initial act or omission” occurs in the State even though the other elements do not, the person who does that “initial act or omission” is punishable by the State under the Penal Code; on the other hand, if (b) that “initial act or omission” occurs outside the state, the other or others occurring within the state and the person who does that “initial act or omission” afterwards enters the state, he is by such entry triable by the state under the Penal Code.”

There is need for me, my lords, to state, though briefly, what happened in Njoven’s case (supra), and that is, that there was committed a robbery which was spearheaded by one Felix Dumeh, on or about the 13th day of April, 1971 between Ilorin and Bacita in the Kwara Judicial Division. There were (4) four accused persons who were appellants before this court. The first three appellants were police officers and the fourth was a civilian, all residing in Ibadan. The charge sheet on which they were tried contained a total of nine counts. Count one which is relevant to the case on hand, is on having previous knowledge of the plan to commit the said offence by aiding, encouraging and instigating, intentionally, the commission of the said offence.

The argument put forward on behalf of the accused persons before the three man panel of justices of the Supreme Court that heard and determined Njoven’s case (supra), is that the High Court Ilorin should not have exercised its jurisdiction to try the accused persons on the offences charged since they were not offences contemplated by the Penal Code of Northern Nigeria which is applicable in Kwara State that no “initial elements” of the offences under the 1st and 2nd counts occurred in Kwara State, and section 4 of the Penal Code does not apply to the acts or omissions of the accused person as the accused persons had come into Kwara State involuntarily by being accused by the police and taken through and therefore did not enter Kwara State as required or contemplated by section 4(2)(b) of the Penal Code Law Learned Director of Public Prosecution of Kwara State on the other hand, contended that the “initial elements” of the offences under the 1st and 2nd counts occurred in Kwara State and that the offences came within the purview of section 4(2)(a)and (b) of Penal Code Law and were therefore punishable by the Penal Code. In their judgment, the three wise men of the Apex Court; Coker, Ibekwe and Irikefe, JJSC; held, (per Coker, JSC) as follows:

“We cannot of course agree with the contention of learned counsel for the accused persons. Section 4(2)(b) of the Penal Code Law which deals with cases in which the “initial element” occurs outside the state, does require that the person who does that act or omission should “afterwards enter” the state before being triable or punishable under the Penal Code. The Learned Director of Public Prosecutions submitted on this aspect of the case that any mode of entry is sufficient for the purpose of the section and that even if the accused persons were kidnapped and brought into the state they have indeed entered the state within the meaning and intent of the provisions of section 4(2)(b) of the Penal Code. We are satisfied ourselves that to construe the word “enter” in the subsection as meaning only a voluntary entry would be completely ridiculous since in that circumstance no criminal will ever enter the state when he knows or realizes that such entry may make him triable by the laws of the state.” (underlining mine for emphasis)

In the appeal on hand, the argument put forward by the learned counsel for the appellant in trying to distinguish Njoven’s case (supra) and this appeal is, inter alia, as follows:

“4.19 The Court of Appeal relied heavily on the case of Patrick Njovens v. The State (1973) 1 NMLR 331 which was properly distinguished by the learned trial judge. The case is absolutely unhelpful to the case of the respondent as the facts and circumstances are not the same. In Njovens, the abetment of the crime of robbery took place in Ibadan but the crimes of robbery were committed in Ilorin and Bacita. The accused persons though resident in Ibadan travelled to Ilorin and were all arrested within jurisdiction. In the instant case the appellant is resident in Onitsha outside the jurisdiction of the High Court of the Federal Capital Territory.

4.20 The alleged attempted assassination of the Director General. NAFDAC PW1 and the alleged murder of Emeka Onuekutu took place in Adulu, Anambra State, outside the jurisdiction of High Court of the Federal Capital Territory. The appellant was arrested in Onitsha and brought to the Federal Capital Territory, Abuja.

4.27 It is our contention that section 4(2)(b) is the pivotal section in this appeal, Paragraph (b) should not be read in isolation of subsection (2) of section 4 from where the provision follows: if so read, it becomes clear that subsection (2) makes provision for an offence that has several elements. Under section 4(2)(a), once the initial element occurred in Northern Nigeria, and the other elements occur elsewhere, the offender is liable under the Laws of Northern Nigeria.

4.28 Similarly, under 4(2)(b) where the initial element occurs elsewhere than in Northern Nigeria, then for it to offend the Laws of Northern Nigeria an aspect of the other elements making up the offence must occur in Northern Nigeria and the person enters Northern Nigeria.

4.29 We submit that this interpretation is the intendment and effect of the provision of section 4(2)(a) and (b)……”

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(all underlining supplied by me for emphasis)

The learned counsel for the appellant, I believe, is trying to make distinction without difference. Firstly, it is in evidence that all the accused persons including the appellant entered into the jurisdiction of the FCT. PW17, in his testimony, stated as follows:

“I know all the accused persons as I have come across them during investigation. 1st accused was forwarded to the SSS by the Police Headquarters, Abuja, he remained with the SSS during the period of investigation and up to the time he was arraigned before this court similarly, the 2nd accused, 3rd accused, 4th accused but 5th accused reported himself to our office at Okar after he was declared wanted from where he was brought to Abuja, which the 8th accused was arrested by the SSS when he tried to distract the SSS from carrying out their duties in the investigation”.

This evidence was neither contradicted or denied by the appellant. This means that the appellant and the remaining accused persons, In one way or the other, entered into the Federal Capital Territory, Abuja, before they were charged to the FCT High Court to answer the charges preferred against them. In Njoven’s case, this court adopted the submission of learned Director of Public Prosecution that any mode of entry is sufficient for the purpose of the section and that even if the accused persons were kidnapped and brought into the state, they have indeed entered the state within the meaning and intent of the provisions of section 4(2)(b) of the Penal Code. This court went further to say that:

“To construe the word “enter” in the subsection as meaning, only a voluntary entry would be completely ridiculous since in that circumstance no criminal will ever enter the state when he knows or realizes that such entry may make him triable by the Laws of the state.”

I agree with the Court below in its decision that the Court of Appeal’s decision in Waziri Vs. The State [Supra] cannot override or be preferred to the two Supreme Court’s decisions on the issue of entry of an accused within jurisdiction of the trial Court.

“This shows clearly that even if the offence was committed outside Lagos State, and afterwards the appellant comes into Lagos State that entry of the appellant into Lagos State confers jurisdiction on the Lagos High Court to try him of the offence, As this Court held in Patrick Njovens v. The State [1973] 5 SC.17

“Whether the offender be apprehended in the State or be in custody in the State, his entry is complete within the purpose and intent of the sub-section and is triable in the state”

Secondly, on whether the offences contained in counts 3 and 4, and or their elements, took place in the FCT, to confer jurisdiction on the trial court, the trial court made the following observations:

“I have observed the precision with which the 2 counts charge stated the venue of the act – meaning the misconduct, it was clearly consummated at Agulu in Anambra State. There is no dispute as to this, except that the prosecution is of the view that there are certain manifestations of the consummated misconduct within the FCT. I find difficulties in perceiving these manifestations partly because the word MANIFESTATION of the misconduct as consummated at Agulu could assume the nature of post consummation or prior to that status. In either case it must go beyond mere consequences of the misconduct, such manifestation must be of the status of elements that constitutes the offence as charged. The prosecution respondent had invoked the case of Patrick Njovens (supra) as well as placed reliance on counts 1 and 2 of the charge as elements of counts 3 and 4…. On the case of Patrick Njovens (supra) it is clear that for that decision to apply part of the elements of the offence must have been consummated partly in Agulu and FCT, I therefore agree with the submissions of the applicants that the case of Patrick Njovens is inapplicable in the circumstances. None of the elements of the 2(two) counts charge 3 and 4 took place in the Federal Capital Territory and that being the case, instituting the action before the High Court, Federal Capital Territory is inappropriate.” [Underlining supplied]

I think the learned trial judge was carried away by the submissions made by the learned Counsel for the 2nd and 3rd respondents before that Court, who concluded that no elements of the offences were shown to have taken place in the Federal Capital Territory, Abuja and the High Court in Abuja could not assume jurisdiction over the matter. The Court below, however, per ADEKEYE, JCA. [as she then was] made a finding and held as follows:

“Since the four counts on the charge are offences committed in the course of the same transaction and in pursuance of some purpose which is to assassinate pw1. With the community reading of Section 4[2][b] of the Penal Code Cap 532 Laws of the Federation, 1990; Section 134[a],[b], [c] and [d] of the Criminal procedure Act Cap.491 Laws of the Federation 1990, and Section 301 of the 1999 Constitution the honourable Attorney General can validly issue the FIAT dated the 10th of September, 2014 to the Law Firm of Chief Afe Babalola [SAN] & Co. to prosecute the respondent here at the Federal Capital Territory, Abuja.

I also hold that the Federal Capital Territory High Court Abuja can assume jurisdiction over this matter.”

I agree with the Court below in its decision as above. I also agree with the learned Counsel for the respondent in his submission that as counts 1 and 2 of the charge sheet were allegedly committed within the Federal Capital Territory, Abuja, there is, therefore, a nexus between counts 1 and 2 and counts 3 and 4. They were all transactions/offences committed in the course of the same transaction and in pursuance of same purpose, which was to assassinate Pw1, Dr. Dora Akunyili. By virtue of the provision of Section 221[d] of the Criminal procedure Code, persons may be charged and tried together who were accused of different offences committed in the course of the same transaction, and the purpose here, in this appeal, being to kill Pw1. Further, since there is nexus between counts 1 and 2 and 3 and 4, it is clear from the proof of evidence [pages 6-9 and 14 – 16 of Vol. one of the Record of Appeal] of Pws’ 1 and 12 that the offences in counts 1 and 2 were said to have been committed in the Federal Capital Territory Abuja. Thus, the implication is that the offences of conspiracy and attempted murder were all hatched in the Federal Capital Territory Abuja. From the trial Court’s proceeding of 3rd February, 2005, one OKWUD|RI UDECHUKWU [Pw3] [page 557, Vol. two of the Record of Appeal] the witness, among other things, stated as follows:

“I then demanded to know the kind of job they were to do and 2nd accused said, they were to kill the woman – Director General NAFDAC who had destroyed their drugs worth 36 Million Naira in addition, she had seized some of their drugs imported from Holland and China and it was likely the woman – Director General of NAFDAC will destroyed [sic] the drugs. I then asked how we could see the woman and 2nd accused said she is based in Abuja and they tried to do the job in Abuja without success”.

[Underlining for emphasis] ”

As the Federal Capital Territory High Court has jurisdiction try the offences in counts 3 and 4 of the charge sheet, it goes without saying that the Honourable Attorney-General of the Federation, as found by the Court below has the power to prosecute persons who are alleged to have committed any Criminal offence in the Federal Capital Territory [See Section 301 of the Constitution; part 1 Section 1 of the Schedule to the Criminal Procedure Code Act, Cap 491 LFN [Abuja] 990]. Therefore, the Honourable-Attorney General of the Federation can validly and legally issue a fiat to any counsel of his choice to prosecute a criminal offence in the Federal Capital Territory Abuja, including the one issued on the 10th of September, 2004, to the law firm of Chief Afe Babalola, [SAN] & Company.

In the final analysis, I find no merit in this appeal which is dismissed, hereby, by me. I affirm the decision of the Court below that the High Court of the Federal Capital Territory Abuja, has jurisdiction to continue to entertain counts 3 and 4 on the charge and complete the case on its merit. Hearing in this Criminal matter should without further delay, continue in respect of the said counts.


UoC.362/2009

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