Okey Nwosu V. Federal Republic Of Nigeria & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering The Leading Judgment)

This is an appeal by the Appellant (1st Defendant in the Lower Court), against the decision of Okunnu J, of the High Court of Lagos State delivered on 24th May, 2011. The learned trial judge dismissed the Appellant’s Notice of Preliminary Objection challenging the competence of the information preferred against him and the jurisdiction of the trial court to entertain same.

The background fact of the case is as follows:-

2.1 Following the Central Bank of Nigeria’s controversial removal of some of the Managing Directors, directors and key officers of certain banks on the alleged grounds of granting unsecured loans, creating false impression of the values of their shares and mismanaging depositors’ fund, the Appellant who was the Group Managing Director of the Finbank Plc group was charged and arraigned before the Federal High Court pursuant to the Appellant s application granted bail to the Appellant and proceeded to try the Appellant and the Co-Defendants on the charge.

2.2 While the aforementioned charge was pending and trial was on-going at the Federal High Court, the 1st Respondent (prosecution) not being contented by the charge at the Federal High court decided to prefer another charge against the Appellant and the 2nd – 4th Respondents before the Lagos State High Court on the same set of facts and circumstances us the Federal High Court Charge.

2.3 The new Charge was brought against the Appellant (alongside the 2nd, 3rd, and 4th Respondents) by an information dated 29th day of March, 2011 with a 26-count charge of stealing contrary to section 390 (7) of the Criminal Code Law, CAP C17 Laws of Lagos State, 2003 from which the current appeal sprang.

2.4 On arraignment, the Appellant by ways of Preliminary Objection, challenged the jurisdiction of the trial court to hear and determine the charge given the pendency of the earlier charge before the Federal High Court with similar facts and circumstances and for other reasons such as the competence of the information not being brought by the Attorney General and no fiat delegating the power to the person who signed the information etc.

2.5 On the 24th of May, 2011 the learned trial judge gave his ruling dismissing the Appellant’s Preliminary Objection dated 10th day of May, 2011 (see pages 3437 – 3459 of the records for the ruling).

2.6 In view of the above, the Appellant was dissatisfied and thereby caused to be filed the Notice of Appeal contained in the Supplementary Records of Appeal. The Appellant seeks that the appeal be allowed and the trial court ruling dated 24th May, 2011 be set aside and in its place this Court should grant the Appellant’s application dated 10th May, 2011 by quashing and/or striking out or dismissing all the counts of the information preferred against Appellant filed on the 29th March, 2011.

ISSUES FOR DETERMINATION

We humbly submit that from the Notice of Appeal, the following issue arise for determination by the Honourable Court namely:

i. Whether the Lower Court was wrong in holding that Charge No.FHC/L/383c/09 at the Federal High Court and Charge No.ID/115C/11 pending before the Lower Court were not factually the same and the charge before her (charger No.ID/115c/11) was not an abuse of Court process notwithstanding that both charges arose from the same set of banking transaction arising at the same period of time – Ground 1 and 2.

ii. Whether the Lower Court was wrong in holding that the 1st Respondent does not require the fiat of the Attorney General of Lagos state to prosecute the Appellant and thereafter having so held proceeded to rely on the very some fiat dated 12th May, 2004 (she earlier held was not required) in dismissing the Preliminary objection of the Appellant holding that same fiat was competent – Grounds 3 and 4.

iii. Whether the lower court can double speak in her ruling by basing same on an affidavit it earlier held, in the same ruling, to offend the Evidence Act and whether the Lower Court was wrong in handing down or delivering its ruling dated 24th May, 2011 without considering some of the grounds of the Appellant’s preliminary Objection and in particular, failing to consider the supreme court decision in State Vs. Okobi (1984) NSCC 520. – Grounds 5 and 6.