Federal Republic Of Nigeria V. MR. Francis Atuche & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment)

This appeal is against the Ruling of the High Court of Lagos State (the lower Court) coram Justice L.B. Lawal-Akapo delivered on the 22nd day of June 2015. There were two applications filed in that Court which the Court considered before arriving at its Ruling. The first was a Motion on Notice filed by the 1st and 2nd Respondents in this appeal who were the 1st and 2nd Defendants/Applicants. The motion prayed the lower Court for the following:

“1. An order that on the authority of the decision of the Court of Appeal in CA/L/601/11 Okey Nwosu v Federal Republic of Nigeria & 3 Ors delivered on 21st November, 2013, this Court lacks jurisdiction to continue to entertain this criminal charge.

2. An order dismissing the criminal charge;
3. And for such further Order(s) as this honourable Court may deem fit to make in the circumstances.”

The second application considered by the lower Court before it arrived at its Ruling was a Notice of Preliminary Objection dated 3rd December, 2013. In that application, the Appellant in this appeal which was the Complainant/objector at the lower Court, sought an order dismissing the criminal charge.

After hearing Chief Anthony idigbe SAN on the motion on notice and Mr. Kemi Pinheiro SAN for the Respondents and after also considering the Preliminary Objection argued by Mr. Kemi Pinheiro SAN and also after considering the offences against the Defendants Francis Atuche, Mrs Elizabeth Atuche and Mr. Ugo Anyanwu, the lower Court came to the following two conclusions summarized as follows:

1. On the motion on notice, the Court held that it was bound by the decision of the Court of Appeal in the case of Dr. Erastus Akingbola v FRN delivered on 31st December, 2014 to the effect that where allegations of purchase, sale or dealing in shares and stocks are made, it is the Federal High Court as opposed to a State High Court that has jurisdiction over the matter pursuant to the provisions of Section 251(1), (g) and (h) of the 1999 Constitution as amended.
2. On the preliminary objection, the Court held that the subsisting order of the Court of Appeal in Appeal No. CA/L/1082/2013 and CA/L/1083/13 Elizabeth Atuche v. FRN and Francis Atuche v FRN respectively knocked the bottom out of all the grounds canvassed in the Notice of Objection.

Based on the conclusions summarized above, the lower Court decided that the motion on notice had merit and consequently struck out the charge against Francis Atuche, Elizabeth Atuche and Ugo Anyanwu and discharged them. The Court also dismissed the preliminary objection.

Dissatisfied with the decision of the lower Court, the Appellant in a Notice of Appeal dated 13/7/15 and filed on 16/7/15 challenged it on 9 grounds, All the parties filed and exchanged Briefs of Argument. The Appellant’s Brief of Argument dated 23/10/15 was filed on the same date. The Appellant also filed Reply Briefs in response to the Briefs of the Respondents. The Appellant’s Reply Brief to the 3rd Respondent’s Brief of Argument was dated and filed on 2/3/16. Its Reply Brief to the 1st and 2nd Respondents Amended Brief of Argument was dated 22/4/16 and filed on 26/4/16.

The Appellant’s Brief of Argument and its said Reply Briefs of Arguments were prepared by Mr. Kemi Pinheiro SAN. The 1st and 2nd Respondents Amended Brief of Argument relevant to this appeal, was filed on 14/4/16. It was deemed properly filed and served on 15/4/16. The Brief was submitted by Chief Anthony ldigbe SAN.

The 3rd Respondent’s Brief of Argument was submitted by Sylva Ogwemoh SAN. All three Senior Advocates of Nigeria adopted their respective Briefs on 12/7/16.

It is necessary to state here that the appeal initially came up before us for hearing on 4/5/16. On that date, the Learned Senior Advocate of Nigeria for the Appellant drew our attention to the fact that there was an appeal at the Supreme Court against the judgment of this Court in Appeal No. CA/L/601/11 delivered on 21/11/13 and that the outcome of that appeal was likely to substantially resolve the issues in the present appeal before us. The Learned Senior Counsel argued that the appeal has been heard by the Supreme Court and judgment in the appeal reserved.

Chief Anthony Idigbe SAN and Sylva Ogwemoh SAN confirmed that there was indeed such an appeal before the Supreme Court. All the learned senior counsel agreed to an adjournment to await the outcome of that appeal. Consequently, the matter was adjourned by us to 12/7/2016. The awaited judgment of the Supreme Court has since been delivered. It was delivered on the 1st of July 2016. We shall refer to that judgment in the course of this judgment.

Out of the nine grounds of appeal, the Appellant distilled four issues for determination. The issues are:

1. Whether the honourable lower Court was right to quash counts 1-10 of the amended Information against the Respondents notwithstanding the admission of the 1st and 2nd Respondents Counsel that the case of CA/L/601/2011 Okey Nwosu v Federal Republic of Nigeria was inapplicable to counts 1 10 and the holding of the lower Court that counts 1-10 were perfectly within the Criminal Code Law of Lagos State.
2. Whether the honourable lower Court was right to decline jurisdiction and hold that it was bound by the cases of CA/L/601/2011 Okey Nwosu v Federal Republic of Nigeria and CA/L/490/2014 Akingbola v Federal Republic of Nigeria notwithstanding the glaring dissimilarities between those decisions and the case before it and most importantly the decisions in Ehindero v Federal Republic of Nigeria, Sebastian Adigwe v Federal Republic of Nigeria and COP v Abass and the express provision of Section 251(3) of the Constitution of the Federal Republic of Nigeria 1999.
3. Whether in the absence of any application by the 3rd Respondent to have counts 1 – 24 and 26 of the amended Information quashed against him, the lower Court was right to proceed to strike out the charges against the 3rd Respondent.
4. Whether the Appellant’s Notice of Preliminary Objection dated the 3rd of December, 2013 had any bearing whatsoever with the decision in Appeals Nos. CA/L/1082/2013 and CA/L/1083/2013

If no:

Whether the lower Court was right to dismiss the Appellant’s notice of preliminary objection without giving reasons.