Ochonogor Alex V. Federal Republic Of Nigeria (2018)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

At the High Court of Lagos State, a Nine Count Information was preferred against the appellant here and others. Sometime in 2014, precisely, on October 28, 2014, the Prosecution filed an Amended Information. As he did with regard to the earlier Information, the appellant sought for an order quashing the charge preferred against him – an application that was dismissed on February 17, 2016. Having unsuccessfully challenged the said Ruling of the High Court throughout this judgment, simply, called [“the trial Court”] at the Court of Appeal, Lagos Division, [hereinafter referred to as “the lower Court”] the appellant has now, approached this Court, urging it to set aside the decision of the lower Court.

He seeks the Court’s determination of the two issues which he framed thus:

1. Whether the Court of Appeal was right when it held that the Lagos High Court can exercise criminal jurisdiction in this matter considering that the subject matter of Charge No. ID/120C/2012 which borders on admiralty operation, oil and gas, revenue of the Federal Government

2.

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Whether the Lower Court was right to hold that the information and proof of evidence in this case have disclosed a prima facie case against the appellant to warrant his trial thereon

On behalf of the respondent, the following two issues were presented for the determination of the appeal, viz;

1. Whether the Court of Appeal was not right in upholding the decision of the High Court of Lagos State that it had the jurisdiction to entertain the Information contained in Charge No ID/120C/2012 bordering on the offences of obtaining money by false pretence under the Advance Fee Fraud and other Fraud Related Offences Act, 2006; forgery, uttering and conspiracy under Sections 467 and 468 of the Criminal Code, Cap C17, Volume 2, Laws of Lagos State, Nigeria, 2003
2. Whether the Court of Appeal was wrong in holding that having regard to the Information and the proof of evidence filed along with the Information, a Prima Facie case is disclosed against the appellant to warrant his trial

Upon my intimate reading of the principal complaints in the Notice and Grounds of Appeal, I am of the humble view that the two issues of the respondent, neatly,

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capture the appellant’s grouse against the lower Court’s judgment. They would, therefore, be adopted in the disposal of this appeal.

ARGUMENTS ON THE ISSUES

ISSUE ONE

Whether the Court of Appeal was not right in upholding the decision of the High Court of Lagos State that it had the jurisdiction to entertain the Information contained in Charge No ID/120C/2012 bordering on the offences of obtaining money by false pretence under the Advance Fee Fraud and other Fraud Related Offences Act, 2006; forgery, uttering and conspiracy under Sections 467 and 468 of the Criminal Code, Cap C17, Volume 2, Laws of Lagos State, Nigeria, 2003

APPELLANT’S SUBMISSIONS

At the hearing of this appeal on November 15, 2017, learned Counsel for the appellant adopted and relied on the Brief and Reply filed on November 15, 2017. With regard to the first issue, it was contended that Section 251 of the Constitution confers exclusive jurisdiction on the Federal High Court in respect of causes and matters specified therein. He also, referred to Section 251 (1) (a) (g) and (n) in support of the contention that only the said Court can exercise jurisdiction in matters

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under the said sections, citing Section 251 (3).

Learned counsel canvassed the view that Section 251 (supra) confers exclusive jurisdiction, civil and criminal, with respect to all the items therein. He maintained that Section 272 is dependent on Section 251, Oke v Oke (1974) 1 All NLR (pt t) 443; LSDPC v Foreign Finance Corporation [1987] 1 NWLR (pt 50) 413; Aqua Ltd v Ondo State Sports Council[1988] 4 NWLR (pt 91) 577; Idehen v ldehen (1991) 6 NWLR (pt 198) 382; Labiyi v Anretiola [1992] 8 NWLR (pt 258) 139. He also, cited decisions that defined the word “exclusive.”

It was further, contended that, by virtue of Section 251 (1) and (3) (supra), trial of matters, whether civil or criminal, that border on admiralty operation; oil and gas; revenue of the Federation, can only be determined by the Federal High Court. He maintained that crime cannot be committed without a subject matter. In his view, it cannot be correct that the Administration of Criminal Justice Act [ACJL] has, generally, defined the offence of stealing and thus anyone alleged to have stolen anything at all can be arraigned before the High Court of Lagos State.

Learned counsel

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observed that the Criminal Code, equally, contains a general definition of stealing. According to him, since the Criminal Code, applicable to the Federal High Court, contains the offence of stealing, all items in Section 257 (supra) can only be tried by the Federal High Court,FRN v Ibori (2014) 13 NWLR (pt 1423) 168. In his view, the Lagos High Court has no such jurisdiction over the matters.

He contended that the intendment of the Constitution was to divest the State High Court of jurisdiction in matters relating to mines and minerals, including Oil Fields, Oil Mining, geographical surveys; natural gas as well as revenue of the Federal Government. He submitted that the Lagos High Court does not share concurrent jurisdiction with the Federal High Court, Araka v Egbue [2003] 17 NWLR (pt B4B) 1, 21; also, Section 8 (1) of the Federal High Court Act.

He urged the Court to hold that the trial Court does not possess the requisite jurisdiction in matters under Section 251 (supra), NNPC and Anor v Orhiowosele and Ors 2013 NWLR (pt 1371) 224 -226.

RESPONDENIT’S ARGUMENTS

On his part, learned senior counsel for the respondent, Rotimi

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Jacobs, SAN, adopted the respondent’s brief filed on September 26, 2017. He first, referred to pages 1634 -1636 of the record for the view of the lower Court that the trial Court has the jurisdiction to hear and determine the matter, He pointed that this Court can only disturb the above findings and conclusion of the lower Court with that of the trial Court if they are perverse.

He drew attention to the decision of this Court in FRN v Okey Nwosu [2016] 17 NWLR (pt 1541) 226, 304 -305; 290 291. He explained that, even under the 1999 Constitution, the extent of the limited jurisdiction of the Federal High Court in criminal matters has not been tampered with, citing Queen v Owoh (1962) NSCC 416; The State v Williams [1978] NSCC 38; Akwule v The Queen [1963] NSCC 157.

Citing Section 286 of the Constitution, he contended that the State High Court may be conferred with the power, by an Act of the National Assembly, to try federal offences, Section 286 (1) (b) (c ) and (2) of the Constitution; AG, Ondo State v AG, Federation [2002] 9 NWLR (pt 772) 222, 308. In his submission, the intention of the Constitution is not to confer exclusive jurisdiction on the

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Federal High Court to try federal offences; also, Section 174 of the Constitution.

He canvassed the view that, on the contrary, the Constitution set out to create federal Courts for federal civil matters: an intention not expressed with regard to criminal matters. He maintained that, from the provisions of Section 2 (i) of the Criminal Code Act, the Criminal Code, scheduled to the Act, is partly a state law and partly a federal law to the extent specified in Subsection 2 of the section.

He pointed out that the offences contained in the Information filed against the appellant are the offences of forgery, uttering and conspiracy under Sections 467 and 468 of the Criminal Code and obtaining money by false pretence under the Advance Fee Fraud and other Fraud Related Offences Act, a mere reproduction of Section 419 of the Criminal Code. In his submissions, these sections of the Criminal Code are outside the sections outlined in the Laws of the Federation. Accordingly, the Federal High Court cannot rely on Section 7 (4) of the Constitutive Act to exercise jurisdiction in respect of the offences prescribed under Sections 419, 467 and 468 of the Criminal

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Code Law of Lagos State. He urged the Court to dismiss the appeal.

APPELLANT’S REPLY

In the reply brief, counsel cited Eze v FRN 1987 (Pt 51) 506; Mandara v AG, Federation (1984) 4 SC 8. In his submission, the use of the phrase “notwithstanding” makes it cogent irrespective of all other legislation in the Constitution,Garba v Mohammed and Ors (2016) LPELR -40612 (SC).

Without inviting the Court to overrule its recent decision on Section 251 (1) and (3) [FRN v Okey Nwosu, supra], he devoted paragraphs 1.02 – 1.08, of the Reply brief to arguments that fly in the face of ratio decidendi in the saidFRN v Okey Nwosu (supra). He canvassed the view that where the proof of evidence fails to disclose an offence known to law, it would be quashed, Abacha v State (2002) 11 NWLR (pt.779) 437; Ohwovoriole v FRN [2003] 2 NWLR (pt 803) 176,

RESOLUTION OF THE ISSUE

My Lords, inAbubakar and Anor v Usman and Ors (2017) LPELR -41915 (SC) 7 -16; B -E, I expressed the view that:

…it is rather strange that [counsel] opted to bother this Court with this appeal woven around the propriety of appealing against the judgment of the lower Court in…

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a question that has been, adequately, addressed in the judgments [of this Court]….

Although I am tempted to do so, I refuse to entertain the misgiving that [counsel’s] agitation of this same question in this appeal was a deliberate attempt to put the consistency of this Court’s reasoning to test.

This would appear to be the situation in this case. In FRN v Okey Nwosu (supra), this Court laid the arguments, such as were canvassed by the appellant’s counsel in this case, to rest. In the said FRN v Okey Nwosu (supra), this Court dealt with the interface between Sections 251 (1); 251 (3) and 272 of the Constitution in these appetizing words:

In criminal law and the administration of criminal justice, the determination of jurisdiction will be taken in the light of the enabling law setting out the jurisdiction vis-a-vis the charge preferred against the accused [person]. Section 272 of the Constitution is also relevant. The charge before the Court is what determines its jurisdiction.

While Section 251 (1) of the Constitution confers exclusive jurisdiction in civil matters in respect of items listed as (a) – (s),Section 251 (3) does not

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however confer exclusive jurisdiction on the Federal High Court in criminal causes and matters listed in Subsection (1). By the use of the phrase ‘the Federal High Court shall also have and exercise jurisdiction’ can only mean that other Courts apart from the Federal High Court can exercise jurisdiction also in respect of criminal matters relating to matters listed in Section 251 (1). The phrase ‘to the exclusion of any other Court’ is omitted deliberately…

[FRN v Okey Nwosu, supra 304; italics supplied for emphasis]

According to the Court:

Section 251 of the 1999 Constitution as amended, Section 7 of the Federal High Court Act which is ipsisima (sic) verba to it, Section 272 of the Constitution which provide for the jurisdictions of the Federal High Court and the trial Court, respectively, are not self -executing. It is true that the sections have spelt out instances when the Federal High Court and the trial Court may assume jurisdiction. The provisions however remain dormant until the National Assembly and the Lagos State House of Assembly make laws in their respective areas of competence to create offences by virtue of which the Courts

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would exercise jurisdiction. The 1999 Constitution in Section 4 (6) vests legislative powers of a State of the Federation in the House of Assembly of the State. By Subsection 7 of the same section, the Assembly is empowered to make laws for the peace, order and good government of the State and any part thereof with respect to any matter not included in the Exclusive legislative list and any other matter with respect to which it is empowered in accordance with the provisions of the Constitution. Thus where as in the instant case the Lagos State House of Assembly competently makes laws creating offences in respect of which Courts in the State may assume jurisdiction, the jurisdiction as vested abides. The jurisdiction of the trial Court as spelt out under Section 272 of the 1999 Constitutionoperates subject to the restriction placed on it by Section 251 (2) and (3) of the same Constitution. The latter subsection vests criminal jurisdiction in the Federal High Court regarding all the items for which the Court is conferred exclusive civil jurisdiction under Section 251 (1)…

[FRN v Okey Nwosu supra at 290].

These authoritative pronouncements ought to

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stem the sort of submissions that prompted the judgment of the lower Court culminating to this appeal. It is hoped that counsel would, in future, properly advise their clients to take their trials and not resort to these kinds of professional shenanigans only designed to delay the proceedings at the trial Court. A word is enough for the wise. I find no merit in the tenuous and misleading submissions on this issue.

ISSUE TWO

Whether the Court of Appeal was wrong in holding that having regard to the Information and the proof of evidence filed along with the Information, a prima Facie case is disclosed against the appellant to warrant his trial

APPELLANT’S SUBMISSIONS

On this issue, counsel cited Ikomi v State [1986] 3 NWLR (pt 28) 340 and Abacha v State [2002] 11 NWLR (pt 779) 437. He submitted that there is nothing linking the appellant with the offences charged. He, equally, devoted paragraphs 2.00 – 2.09 of the Reply brief to this issue.

RESPONDENT’S ARGUMENTS

Rotimi Jacobs, SAN, for the respondent, prayed in aid Section 260 (2) of the ACJL of Lagos State. He pointed out that the appellant never allowed the Prosecution to open

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its case before the issue of non-disclosure of prima facie case canvassed. He submitted that, by Section 260 (2) (supra),Ikomi v State (supra) and Abacha v State (supra) are now inapplicable in respect of Information preferred at the High Court of Lagos State.

He cited pages 1641 – 1643 of the record. He contended that prima facie simply means that there is ground for proceeding with the trial. He explained that, as the Head of the Financial Control of the fourth defendant, the appellant qualifies as one of the directing minds of the company. He referred to an avalanche of documents submitted to the PPPRA: documents which were not genuine, pages 304, 338, 377 and 377 of the proof of evidence; the appellant’s admission, page 59 of Vol. 1 of the record; the appellant’s statements, pages 32 -59 of Vol. 1 of the record.

He explained that the appellant and the other defendants were charged under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, 2006. He also, cited Section 10 of the same Act. He opined that having to Section 10 (supra), the prosecution of offences under the Act is not limited to body corporate. He finally, submitted

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that the appellant and the other defendant qualify as parties to the offence under Sections 7 and 8 of the Criminal Code of Lagos State.

RESOLUTION OF THE ISSUE

By way of preliminary remarks, I note that in considering a no-case submission, the Court’s duty is finite: it is only to determine whether the prosecution has made out a prima facie case, that is, whether there is admissible evidence linking the defendant with the offence with which he is charged. Hence, it neither involves the evaluation of evidence nor the consideration of the credibility of the witnesses.

In its Ruling, the trial Court must, with considerable circumspection, endeavour to avoid the temptation of delving into the exercise of evaluation of evidence or the consideration of the credibility of witnesses, State v Emedo [2001] 12 NWLR (pt 726) 131; Ekpo v State (2001) 7 NWLR (pt 712) 292; Odido v State (1995) 8 NWLR (pt 369) 88; Daboh v State [1977] 5 SC 197, This must be so for prima facie case is not the same with proof of a crime which is determined after the close of trial, Abacha v State [2001] 3 NWLR (pt 699) 35.

As such, it would be overreaching itself if it

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embarks on the evaluation of evidence or dissipates valuable judicial energy in the assessment of the credibility of the witnesses, Daboh v State [1977] 5 SC 197; Abacha v State [2001] 3 NWLR (pt 699) 35; Ohwovoriole v FRN [2003] 2 NWLR (pt 803) 176; [2003] 1 Sc (pt 1) 1; (2003) LPELR-SC392/2001; Ajiboye v State [1994] 8 NWLR (pt 364) 587; Ekwunugo v FRN [2008] 15 NWLR (Pt 1111) 630; [2008] 7 SC 196; Tongo v COP (2007) LPELR 3257 SC.105/2000; Abacha v State [2001] 3 NWLR (pt 699) 35 etc.

A survey of all binding authorities would reveal that where a no-case submission is made, the Court is not expected to volunteer any opinion on the evidence, Daboh v State [1977] 5 SC 197; Abacha v State [2001] 3 NWLR (pt 699) 35; Ohwovoriole v FRN [2003] 2 NWLR (pt 803) 176; [2003] 1 SC (pt 1) 1; (2003) LPELR-SC.392/2001; Ajiboye v State [1994] 8 NWLR (pt 364) 587; Ekwunugo v FRN [2008] 15 NWLR (Pt 1111) 630; [2008] 7 SC 196; Tongo v COP (2007) LPELR-SC.105/2000; Abacha v State [2001] 3 NWLR (pt 699) 35 etc.

The rationale for this inviolable prescription is that, in such a situation, the duty of the trial Court is limited to a finding whether, prima facie, on the

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evidence adduced, the appellant had been linked with the alleged offence. Thus, in considering the defendant’s submission that he had no case to answer, the Court had no obligation to determine the question whether the evidence could sustain the conviction, R v Ogucha (1959) 4 FSC 64; Ekpo v State [2001] 7 NWLR (Pt 712) 292; Odido v State [1995] 8 NWLR (pt 369) 88; Abacha v State [2001] 3 NWLR (Pt 699) 35; Ubanatu v COP [1997] 7 NWLR (pt 616) 512.

Learned counsel for the appellant would appear to rate two dissimilar concepts in our accusatorial jurisprudence, namely, prima facie case and proof beyond reasonable doubt, equiponderantly! With profound respect, this sort of fallacious obfuscation of settled concepts must be dissipated without much ado. Ever since Abbot FJ, in Ajidagba v Police (1958) 3 FSC 5, approvingly, adopted the definition of the phrase “prima facie” case from the Indian decision in Sher. Singy v Jitendranathsen (1931) I.L. R, 59 Calc 275, subsequent decisions have, consistently, endorsed it.

It, simply, comes to this: evidence discloses a prima facie case when it is such that if un-contradicted and if believed, will be sufficient

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to prove the case against the defendant,Ohwovoriole v FRN [2003] 2 NWLR (pt 803) 176; [2003] 1 Sc (pt 1) 1; (2003) LPELR-SC.392/2001; Ajiboye v State [1994] 8 NWLR (pt 364) 587; Ekwunugo v FRN [2009] 15 NWLR (Pt 1111) 630; [2008] 7 SC 196; Tongo v COP (2007) LPELR-SC.105/2000; Abacha v State [2001] 3 NWLR (pt 699) 35; Daboh v State [1977] 5 SC 197.

As indicated earlier, the appellant was so anxious to filibuster the proceedings before the trial Court that, even before the Prosecution opened its case, his counsel had taken up the question of the non-disclosure of a prima facie case. With respect, the appellant should exercise patience until the Prosecution has opened and closed its case. The reason is simple. Section 260 (2) of the ACJL of Lagos State has altered the position under the old Law when Ikomi v State (supra) and Abacha v State (supra) were decided.

The section provides that “[a]n objection to the sufficiency of evidence disclosed in the proof of evidence attached to the Information shall not be raised before the close of prosecution’s case.” In effect, the appellant’s No case submission was hastily done.

Both the trial Court and

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the lower Court wasted precious time considering the question whether the evidence could sustain the conviction. That was sheer waste of time, R v Ogucha (supra); Ekpo v State(supra); Odido v State(supra); Abacha v State (supra); Ubanatu v COP (supra).

I find no merit in this issue. I hereby enter an order dismissing this appeal. The appellant shall return forthwith to the trial Court for the continuation of his trial thereat. Appeal dismissed.

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SC.613/2017