Nnachi Ephraim V. Federal Republic Of Nigeria (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

By the criminal charge dated the 25th June 2008, the Appellant was arraigned before the Federal High Court sitting at Kaduna in the following terms:

“That you Nnachi Ephraim on or about the 4th day of April, 2008 at Prime Gate Cybercafe, 1 Okpara Street, Abakaliki, Ebonyi State within the jurisdiction of the Federal High Court, being the Manager of Prime Gate Cybercafe failed to register the Cybercafe with the Economic Financial Crimes Commission and thereby committed an office contrary to Section 13(1)(a) and punishable under Section 13(5) (c) of the Advance Fee Fraud And other Fraud Related Offences Act, 2006.”

A trial was conducted as a result and, one witness each, testified on behalf of the Appellant and Respondent respectively. At the conclusion of the trial, the trial Court found the Appellant guilty. Following the pronouncement, the Appellant filed this Appeal which he based on six Grounds of Appeal. After compilation and transmission of the Record of Appeal, and service of the same on the parties, they proceeded to file their respective Briefs of Argument. The Appellant, in his Brief, presented three issues for consideration in this appeal. They are as follows:

“1. Whether the trial and conviction of the Appellant was not a nullity for want of jurisdiction.

2. Whether the offence for which the Appellant was tried and convicted was not at variance with the offence created and punishable under Section 13(1)(a) and (5)(c) of the Advance Fee Fraud And Other Fraud Related Offences Act, 2006.
3. Whether the verdict of the lower Court was not perverse.”

The Respondent adopted the issues formulated by the Appellant for determination in this Appeal.

In respect of issue No. 1, the learned Senior Counsel for the Appellant, Dr. J.O. Ibik, SAN; in the Appellant’s Brief of Argument, adopted before this Court by M.C. Okonkwo Esq; explained that the venue of the alleged offence as shown in the charge is “Prime Gate Cybercafe, at No. 1 Okpara Street, Abakaliki Ebonyi State. He stated that the geographical area of Kaduna State is different from that of Ebonyi State as enshrined in Section 3(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria. He argued that by Section 251(1) of the 1999 Constitution, Section 45(a) of the Federal High Court Act, Cap F12 Volume 6 of the Laws of the Federation of Nigeria and Section 64 of the Criminal Procedure Act, Cap C41, Vol 4 of the Laws of the Federation of Nigeria, 2004, the jurisdiction and competence of any Judge of the Federal High Court is confined to causes and matters arising within the territorial Division to which the Judge is posted, which is subject to a formal order of assignment of extra-territorial cause or matter by the chief Judge of the Federal High court.

He emphasised that adjudication without jurisdiction or competence is a nullity and must be set aside on appeal, however well-conducted. He relied on Maduabuchukwu vs. Maduabuchukwu (2006) All FWLR Part 318 page 695; Minister of Federal Capital Territory and another vs. Abdullahi & Ors (2010) ALL FWLR 179 at 193-194 paragraphs H-D and Bronik Motors Ltd vs. Wema Bank Ltd (1983) NSCC 226 at 231 (18 – 22) in support. Learned Senior Counsel submitted that by virtue of Section 14 of the Advance Fee Fraud And Other Fraud Related Offences Act, 2006, the jurisdiction to try offence under the Act is vested in the Federal High Court, High Court of the Federal Capital Territory and the State High Courts. He made reference to Ibori vs. Federal Republic of Nigeria (2009) ALL FWLR Part 487 159 at pages 189 paragraphs D-E, and 191 – 192 paragraphs F-G, and contended that by charging the Appellant before the Kaduna Division of the Federal High Court when the offence was allegedly committed in Ebonyi State, the prosecution embarked upon forum hunting. He stated it was an exercise in futility in trying the Appellant in the Kaduna Division for an offence not committed within its territorial jurisdiction. The Learned Senior Counsel also pointed out that since this issue borders on jurisdiction, it can even be raised for the first time on appeal without leave. On this, he placed reliance on the case of Minister of Federal Capital Territory & anor vs. Abdullahi & Ors (2010) ALL FWLR Part 179 at pages 193 – 194 paragraphs H-D. He, then, urged this Court to resolve issue No.1 in favour of the Appellant.

Regarding issue No.2, the learned Senior Counsel strongly contended that the requisite criminal intent required for commission of the offence was not proven by the prosecution. He referred to the Appellant’s testimony as P.W.1 where he clearly stated that the premises is used as a cyber cafe that there was no concealment of any kind as to what is being carried out thereat, and then submitted that the trial Court was in error when it failed to acquit and discharge the Appellant for the offence charged. He turned to the provisions of Section 13(5) (c) of the Advance Fee Fraud And Other Fraud Related Offences Act, 2006 and the cases of Orhiunu vs F.R.N (2005) 1 NWLR Part 906 page 39, River State Government vs. Specialist Consult (2005) 7 NWLR Part 923 page 145 and Ibori vs. Ogboru (2005) 6 NWLR Part 920 page 162, the dictum of the lower Court at page 52 lines 14 – 23 of the record, the cases of the State vs. Usman (2005) 1 NWLR Part 906 page 80 at pages 161 paragraphs A-B, and 137 paragraph G; Adamu vs. The State (1991) 4 NWLR Part 187 page 530, Okeke vs. The State (1999) 2 NWLR Part 590 page 240 and Shande vs. The State (2005) 12 NWLR Part 939 page 301 at pages 320-321, paragraphs H-A, and submitted that it is the duty of the Court to interpret each provision of the law or statute by giving it, its plain and grammatical meaning.

He emphasized that the lower Court was in error when it held that:

“the provision of Section 13(1)(a) of the Advance Fee Fraud And Other Fraud Related Offences Act, under which the accused was charged deals with the duties of telecommunication and internet services providers…. to inter alia have same registered with the Economic and Financial Crimes Commission, failure of which constitute (sic) an offence punishable under sub Section (sic) (5) and (6) of Section 13 of the Act.”

He explicated that failure to register simpliciter does not constitute an offence punishable under Section 13(5)(c) of the Advance Fee Fraud And Other Fraud Related Offences Act. He stressed that it is the responsibility of the prosecution to prove beyond reasonable doubt all the ingredients of the statutory offence charged, but which the prosecution failed to discharge in the instant case, which in all circumstances entitled the accused to acquittal. He then submitted that the conviction of the Appellant is, therefore, perverse and ought to be quashed. He, once again, highlighted that the offence for which the Appellant was tried and convicted as shown in the charge sheet and established on the evidence before the lower Court is at variance with the offence created by the statute pursuant to which the Appellant was charged and tried. Counsel, therefore, persuaded that issue No. 2 be resolved in favour of the Appellant.

Dealing with issue No.3 which is ‘whether the verdict of the lower Court was not perverse’, the learned Senior Counsel asserted that there is no burden whatsoever placed on an accused person to establish his innocence, except there is a express provision of the law requiring the same. He relied on Shande vs. The State (supra) in support. He contended that the provisions of Section 13(1)(a) and 5(c) of the Advance Fee Fraud And Other Fraud Related Offences Act, 2006 does not contain such an exception. The learned Senior Counsel quoted some excerpts from the judgment of the lower Court at page 50 lines, 7, 16 to 52 of the record and stressed that there is the unchallenged testimony of D.W.1 at page 36 lines 2 to 5 of the record showing that Artifice colony Nigeria Ltd owns and operates a cyber cafe at No. 1 Okpara Street, Abakaliki. He, also, referred to page 39 lines 14 – 16 where D.W.1 stated that when Artifice Colony was incorporated in 2005, he, D.W.1, took over prime Gate Cyber cafe, meaning that on 4th April, 2008, only Artifice Colony cyber cafe was operating. The Learned Counsel further argued that by the prosecution withholding the analysis report, the Appellant is entitled to the presumption under Section 149(d) of the Evidence Act that the report exonerated the Appellant vis-a-vis the alleged operation of Primegate Cybercafe at the locus in quo as charged. He argued that the provisions of Section 138(3) of the Evidence Act has no relevance to the facts of this case because of the uncontradicted testimony of D.W.1 and Exhibits C, D- L. He urged this Court to resolve issue No.3 in favour of the Appellant and then set aside the verdict of conviction and sentence passed on the Appellant by the lower Court.

In the argument proffered on behalf of the Respondent in respect of issue No.1, learned counsel for the Respondent, Mrs. O. M. Oke strongly contended that considering the decision in Abiola vs. F.R.N (1995) 3 NWLR Part 382 page 203, the territorial jurisdiction of the Federal High Court is not determined only by the provisions of Sections 19 and 45 of the Federal High Court Act, but, also, by the provisions of Sections 64 – 71 of the Criminal Procedure Act. She reproduced the provisions of Sections 19 and 45 of the Federal High Court Act and further leaned on the decision in Ugwu vs. Ararume (2007) 12 NWLR Part 1047 page 367 at 438 per Tobi, J.S.C and submitted that Sections 19 and 45 of the Federal High Court did not divest the Federal High Court, Kaduna Division of the jurisdiction to entertain the criminal charge filed before it by the prosecution. He stated that Section 45 of the Federal High Court Act deals with venue of trial of offences, and that determination of the issue of venue only relates to the administrative jurisdiction of the Court which is not at stake, as the Judicial Divisions were merely created for convenience. She asserted that Section 45 of the Federal High Court Act is in pari materia with Section 64 of the Criminal Procedure Act, and that Section 33(1) of the Federal High Court Act empowers the Court in exercising its criminal jurisdiction to apply substantially, the Criminal Procedure Act. Learned Counsel argued that Section 45 of the Federal High Court Act is not in conflict with Sections 64-69 and 70 – 71 of the Criminal Procedure Act. Counsel further asserted that the Federal High Court has power to assume jurisdiction under Sections 70 and 71 of the Criminal Procedure Act, and to try an accused person for an offence alleged to have been committed in another Judicial Division. She contended that by the decision in Abiola vs. FRN (supra) the combined provisions of Section 230(1)(a) and 231 of the 1979 Constitution, Sections 19(1) and 45 of the Federal High Court Act and Sections 64, 70 and 71 of the Criminal Procedure Act, are to the effect that the Abuja Judicial Division of the Federal High Court Act was competent to try the Appellant. Counsel said that the aforementioned pronouncement in Abiola vs. F.R.N (supra) was not based on the fact that Abiola was facing a treasonable charge but on clear interpretation of the provisions of Sections 19, 33 and 45 of the Federal High Court Act vis-a-vis the provisions of Sections 64 – 71 of the Criminal Procedure Act. It was stated therein that the provisions of Section 45 of the Federal High Court Act should not be read in isolation while considering the issue of venue. She cited the case of Usman vs. Umaru (1992) 7 NWLR Part 254 page 377 at 398 per Ogundare, J.S.C, and asserted that this Court is bound to follow its previous decision in Abiola vs. F.R.N (supra) except in circumstances specified in Young vs. Bristol Aeroplane Co. Ltd (1944) 2 ALL E.R 293 at 300. Counsel explained that the first exception created in Usman vs. Umaru (supra) is applicable to the instant appeal and she urged this Court to follow its decision in Abiola vs. F.R.N other than the one in Ibori vs. State. She further stated that there is only one Federal High Court for the Federation which was established by Section 249 of the 1999 Constitution of the Federal Republic of Nigeria. Counsel further cited the cases of Ukpai vs. Okoro (1983) 2 SCNLR 360 at 388, Ogige vs. Obiyan (1997) 10 NWLR Part 524 page 179 at 192, Patrick Njovens vs. The State (1973) NSCC 257 at 271 – 273 per Coker, J.S.C, Section 4(2)(b) of the Penal Code, and Section 19 of the EFCC Act which says that the Federal High Court has jurisdiction to try offenders under the Act, and, then urged this Court to hold that the Kaduna Division of the Federal High has the jurisdiction to entertain the offence for which the Appellant was charged.