Emmanuel Ahmed V. Federal Republic of Nigeria (2009)

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MASSOUD ABDULRAHMAN OREDOLA, JCA

This judgment relates to an interlocutory appeal filed by Emmanuel Ahmed (Also known as Apeh Ahmed.) He is (hereinafter referred to as the Appellant.) The brief facts of this case are to the following effects.

On 1st August, 2005, the Appellant was arraigned before the Kaduna State High Court on a nine count charge dated 21st July, 2005. He pleaded not guilty to the counts in the charge sheet preferred against him on behalf of the Respondent by the Economic and Financial Crimes Commission, (hereinafter referred to as the EFCC or the Commission.) The Appellant was admitted to bail and before commencement of hearing, he filed a notice of preliminary objection dated 10th November, 2005. Appellant raised objection to the jurisdiction of the trial Court to try him on counts two to nine as contained in the charge sheet. The ground of objection was, that EFCC lacks the locus standi to prosecute him for the offences alleged in the said counts two to nine. The notice of preliminary objection was taken and heard by the trial court on 15th December, 2005. The Appellant urged the trial court to decline jurisdiction and strike out counts two to nine of the charge. The Respondent herein seriously opposed the application and prayed that the same be dismissed by the trial court. On 12th January, 2006 the Hon. M.T.M. Aliyu, J., dismissed the application by way of notice of preliminary objection, filed by the Appellant herein, challenging the power of EFCC to prosecute him with regards to counts two to nine in the charge sheet. The learned trial Judge held that EFCC has power to prosecute the Appellant for the offences charged in the said counts two to nine of the charge. The Appellant being dissatisfied therewith, appealed to this court, vide his notice of appeal dated 20th January, 2006 containing three grounds of appeal.

In the Appellant’s brief of argument prepared by Chris Ubogu Esq., dated 6th November, 2006 and deemed filed on 12th March, 2007, two issues were distilled for determination in this appeal. They are:

1. On a calm and unbiased reading of counts two to nine as contained in the charge filed against the Appellant by the Economic and Financial Crimes Commission, can it be said that, the said counts, as couched, amount to economic or financial crimes?
2. If the Economic and Financial Crimes Commission has no statutory power to prosecute the appellant in respect of counts two to nine as contained in the said charge, does the lower court have the jurisdiction to try the Appellant in respect of the said counts?

The Respondent filed a notice of preliminary objection dated 10th October, 2007 against the competence of ground one of the grounds of appeal. The Respondent’s brief of argument was prepared by C.O. Ugwu Esq. It was dated 10th October, 2007 but deemed filed on 25th September, 2008. In it one issue was identified for the determination of this appeal and it goes thus:

4.1 Whether counts two to nine of the charge as framed qualifies as offences under the Economic and Financial Crimes Act for which the Respondent is empowered to prosecute. This issue is founded on ground 2 and 3 of the Notice of Appeal.

Before proceeding with the resolution of this issue, I need to consider the preliminary objection raised by the Respondent against the competence of ground one of the grounds of appeal. As per the requirements of our rules of court, the objection was formally moved on 21st January, 2009 during the hearing of this appeal. It was also duly argued in the Respondent’s brief. It was contended therein that a competent ground of appeal must challenge a ratio decidendi and not an obiter dictum in a judgment or ruling. The case of Ede V. Omeke (1992) 5 NWLR (Pt. 242) 428 was cited in support. A host of other cases were similarly cited to buttress the points raised in the objection. We were urged to strike out the said ground of appeal as the same is incompetent.

In his reply brief dated 2nd October, 2008 and filed on 6th October, 2008, the Appellant responded to the preliminary objection and according to him, that it merely raised an academic issue as no live issue was argued therein. Reference was made to the case of Ebhodaghe V. Okoye (2005) All FWLR (Pt. 241) 200/216 paragraphs G-H. The learned Appellant’s counsel pointed out that since no challenge has been mounted by the Respondent against the two issues framed by the Appellant in this appeal, that the said issues are elicited from grounds two and three in the notice of appeal, therefore even if ground one in the said notice of appeal is struck out, the appeal will still remain intact. The learned Appellant’s counsel then conceded that since the arguments canvassed in their brief are largely based, albeit in an overlapping manner on grounds two and three, then it could be said that by implication, the Appellant can be deemed to have abandoned ground one of his notice of appeal.

With this concession, though made half heartedly by the learned counsel for the Appellant, I have no hesitation in upholding the preliminary objection raised by the Respondent against the competence of ground one in Appellant’s notice of appeal. This is moreso, because the overwhelming consideration for determination as to whether a ground of appeal is competent or otherwise, is whether or not any semblance of reasonable complaint has been raised therein against the judgment in question. See Degi V. Francis (1999) 3 NWLR (Pt.596) 576/588 Paragraphs G-H. A ground of appeal is always a challenge or complaint against the ratio decidendi of the lower court. It can never be at large or against an obiter dictum. See I.F.A. Int. Ltd. V. L.M.B. Plc. (2005) 9 NWLR (Pt. 929) 274/285-286 Paragraphs A-B. In the given circumstances, ground one in the Appellant’s notice of appeal is struck out as the same is incompetent.

On the issues for determination, it is my considered view that the sole issue formulated in the Respondent’s brief is apt, germane and easily subsumed into the two issues framed in the Appellant’s brief. It further encapsulates the essence of this appeal. I accordingly adopt it as the sole issue for the determination of this appeal.

On the sole issue adopted by me for resolution of this appeal, the learned counsel for the Appellant submitted that counts two to nine in the charge are inchoate in nature and fatally defective. That they do not contain the requisite mens rea of any economic and financial crimes, for the failure to state therein that the alleged forgery against the Appellant was done with the aim of earning wealth illegally. Reference was previously made to S. 46 of the EFCC Act, 2004 for the meaning of economic and financial crimes, with the submission that it is not every illegal act, conduct or omission that constitutes an economic and financial crime. It was pointed out, that even though EFCC is statutorily empowered to prosecute offenders under the Penal Code, this does not translate into a blanket empowerment to prosecute every offence defined and punishable under the Penal Code. Rather, that the power of EFCC to prosecute is limited to offences “relating to economic and financial crimes” Reference was made to S.7 (2) (8) of the EFCC Act, 2004. It was further submitted that a special or specific intent which must be proved, forms the ingredient of the offences in counts two to nine of the charge against the Appellant in order to secure conviction, has not been clearly and expressly stated. Reliance was placed on Greg Olieh & Anor. V. F.R.N. (2005) All FWLR (Pt. 281) 1746/1770 Paragraphs GH.

It was further submitted by the learned counsel for the Appellant that since counts two to nine of the charge disclose facts of forgery simpliciter against the Appellant, the EFCC lacks statutory power to prosecute the same and it accordingly lacks the locus standi to invoke the jurisdiction of the lower court which as a result thereof lacks jurisdiction to entertain the said counts two to nine of the charge. We were reminded that the principle of law is that a party that lacks locus standi to prosecute a matter cannot clothe a court with jurisdiction to entertain and determine it. Reference was made to the case of C.O.P. V. Effiong Orok Ayi & Ors. (2005) All FWLR (Pt. 286) 679/703 Paragraphs A-B. We were urged to resolve the issue as argued in favour of the Appellant uphold the appeal and set aside the ruling of the trial court delivered on 12th January, 2006 and further strike out counts two to nine in the charge preferred against the Appellant since they do not independently constitute economic financial crimes.

In his response to the above submissions the learned counsel for the Respondent maintained that the nine counts charge preferred against the Appellant by the EFCC are in respect of distinct offences committed by him in the course of a single transaction. He stated that the offences contained in counts two to nine of the charge relates to count one. Furthermore, that the said counts satisfy the requirements of the Penal Code and the Criminal Procedure Code regarding the framing of charges. Again, that the charge followed the wordings used in the section under which it was laid. We were referred to Essien v. C.O.P. (1996) 5 NWLR (Pt. 449) 489/499. In another submission, he contended that there is no requirement of the law to the effect that the purpose for which the alleged forgery is committed must be stated in the charge, moreso when the word fraudulent was used in the said counts. He noted that the mens rea of the offences as charged are already embedded and disclosed therein. Reference was made to Sections 206 and 363 of the Penal Code. He then made the point that the Appellant has not been misled and no miscarriage of justice has been occasioned thereby. He cited in support the cases of Osondu V. FRN (2000) 12 NWLR (Pt. 682) 483 and Onakoya V. FRN (2002) 11 NWLR (Pt. 779) 595.

Linking S. 7 (2) of the EFCC Act, 2004 which empowered EFCC to enforce the provisions of the Penal Code relating to economic and financial crimes, it was argued by the learned counsel for the Respondent, that any form of fraud such as forgery and using as genuine as charged in counts two to nine, qualify as economic and financial crimes. It was his submission in conclusion that where as a result of an act of forgery the offender or accused person earns wealth illegally, then an offence under the EFCC Act has been committed. We were urged by him to dismiss the appeal as lacking in merit.