Emmanuel Ahmed V. Federal Republic of Nigeria (2009)
LawGlobal-Hub Lead Judgment Report
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:
- 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?
- 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.
It was submitted in Appellant’s reply brief in response to substantial fresh issues or points raised in Respondent’s brief that even if counts two to nine relate to count one of the charge, which ostensibly has the semblance of an economic and financial crime, that fact alone, cannot transform the offences contained in counts two to nine of the charge to economic and financial crimes as defined under S. 46 of the EFCC Act, 2004. Additionally that it is incorrect to say that since the offences contained in counts two to nine described as forgery related offences are “ancillary offences” allegedly committed by the Appellant in the course of committing the offence in count one and by so doing the said offences have now qualified as economic and financial crimes moreso, when it was not alleged therein that the Appellant earned any wealth illegally, gained specific benefit or advantage therefrom as provided or required under S. 46 of the EFCC Act, 2004.
Learned counsel for the Appellant then urged us to hold that counts two to nine of the charge only contain facts which are preparatory acts allegedly aimed at the commission of the offence with which the Appellant was charged in count one and the said preparatory acts without much ado, do not amount to economic and financial crimes under S. 46 of the EFCC Act, 2004. Furthermore, that for any offence under the Penal Code to qualify as an economic and financial crime, the said offence must contain requisite, fundamental elements or ingredients stipulated by the penal law. It must also pass the test laid down under S.46 (supra).
Right from the outset, I need to be cautious, wary and mindful that this is an interlocutory appeal and as such I must restrain myself from making pronouncements which may touch on the substantive matter which is still pending before the trial court. Thus, in resolving the sole issue in this appeal which has been brilliantly argued by the learned counsel for the parties, I must remind myself that in an appeal against an interlocutory decision, appellate courts must bear in mind that the matter or case is still pending and yet to be tried to conclusion on the merits.
Hence, they must be cautious, wary and mindful in their judgment not to make pronouncements or observations on the facts which might appear to pre-determine the main issue or issues in the proceedings yet to be concluded by the trial court. See Ojukwu V. Lagos State (1986) 3 NWLR (Pt. 26) 39. Additionally, it is firmly settled that the function of an appellate court is to limit itself to complaints, challenges or attacks mounted against the judgment or ruling of the lower court. See Ogunmokun V. Military Administrator Osun State (1999) 3 NWLR (Pt. 594) 261/284-285 Paragraphs G-H.
The whole essence of this appeal is simply this: whether counts two to nine in the charge sheet reveal or show the existence of any economic or financial crime in respect of which the Appellant could be prosecuted by the EFCC. The main purpose of a charge is to give the accused person reasonable notice of the case against him and to enable him prepare adequately for his defence. See Olayinka Fara V. I.G.P. (1996) 1 All NLR 6. Now, who is the prosecutor? In the instant case it has been argued by the Appellant that power to prosecute with regards to counts two to nine in the charge does not vest on the EFCC. The Respondent maintained an opposing standpoint. Very well. On the power of EFCC to prosecute and which invariably is closely linked to or based on the counts contained in the charge Sheet, S.13(2) (a) of the EFCC Act, 2004 charged the Legal and Prosecution Unit of the Commission with responsibility of prosecuting apprehended offenders.
It states thus:
(2) The Legal Prosecution unit shall be charged with responsibility for-
(a) Prosecuting offenders under this Act.
Both Sections 6 and 7 of the EFCC Act, 2004 also provide as follows:
6 The Commission shall be responsible for:-
(a) The enforcement and the due administration of this provision of the Act;
(b) The investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc.
7(i) The Commission has power to –
(a) Cause investigations to be conducted as to whether any person, corporate body or organization has committed an offence under this Act or other law relating to economic and financial crimes.
(2) In addition to the powers conferred on the Commission by this Act, the Commission shall be the coordinating agency for the enforcement of the provision of-
(f) any other law or regulation relating to economic and financial crimes, including Criminal Code and Penal Code
(Emphasis added)
I ask: What manner of enforcement is it if it does not or cannot be extended to cover prosecution of offenders? In the construction of the provisions quoted above, I have had recourse to invoke and consider S.1 of the Interpretation Act, which provides thus:
This Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question.
Consequent thereto, I have also invoked S.10 (1) and (2) of the same Interpretation Act, which states:-
(1) Where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as the occasion requires.
(2) An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.
Enforcement means to enforce which is also an act. To my mind and understanding, the power to prosecute in the given circumstances of this case in so far as enforcement is concerned is reasonably necessary in order to enable the act of enforcement to be done or incidental to carrying out the vested power. It is also to be noted that S.18 (1) of the Interpretation Act, states that, “references to the doing of an act shall be construed accordingly.”
In the instant case, and in agreeing with the standpoint of the Respondent herein, regarding the limit or extent of power of EFCC to investigate, enforce and prosecute offenders vis-Ã -vis any other law or regulation, the learned trial Judge said this much:
As I have said earlier, the investigative power of the Commission under Section 6(b) and 7 (1) (a) and (2) (f) is not limited to economic and financial crimes provided in Sections 14-18 but extends to all other financial crimes in any other law or regulation in the country. The words “under this Act or other law relating to economic and financial crimes” under section 7(1) (a) could only mean that the provision of other laws and regulations mentioned in subsection (2) of Section 7 are subsumed in the EFCC Establishment Act, 2004 and that being the case, the Commission has power under Section 13(2) to prosecute such offences so long as they are financial crimes.
One cannot but agree with the learned trial Judge, that in a sense, the provisions of any other law or regulation inclusive of both the Criminal Code and Penal Code are deemed to have been incorporated therein, in so far as they relate to the commission of economic and financial crimes. In the instant case, each of counts two to nine of the charge against the Appellant contain one of the following phrases:
(i) did fraudulently make a document titled … with the intention of causing it to be believed …
(ii) did fraudulently use as genuine a document titled … which you knew to be a forged document …
Two constituents or ingredients of the offence charged are knowledge and fraudulent intention. It was however the contention of the learned counsel for the Appellant that the offence of forgery under S.364 of the Penal Code is a punishable offence, but that does not render forgery per se or simpliciter to transform into an economic and financial crime except where the forgery has been perpetrated with the objective of earning wealth illegally. Thus, failure of the EFCC to state that in the said counts two to nine, left the said counts to be devoid of the mental element that ought to have clothed the said counts with the requisite outlook of an economic and financial crimes. Citing the Supreme Court decision in Mohammed Sani Abaeha & 3 Ors. V. The State (2002) FWLR (Pt.118) 1224/1289 on how charges are to be drafted, it was submitted by the learned Appellant’s counsel that courts are disallowed from reading into or speculating as to what is contained in a charge or otherwise. Hence the trial court is not permitted to read into or speculate as to what is not contained in the said counts two to nine of the charge. It was his submission in essence, that counts two to nine cannot be prosecuted by the EFCC. The position maintained by the learned counsel for the Respondent was that, without the said forged documents referred to in counts two to nine of the charge, the Appellant would have been unable to convince the victim Dr. Joseph Nyager that he was an operative with the EFCC and the need for him to cooperate or play ball. Hence, it was his submission that the offences contained in counts two to nine relate to count one and are ancillary offences, albeit punishable under the Penal Code but prosecutable by the EFCC.
In respect of the above reviewed submissions and stand points of the learned counsel for the parties, the learned trial Judge said:
Coming back to the term “Economic and Financial Crimes “under Section 46, and the issue whether the Commission has the power to prosecute the accused for forgery as in counts 2-9, it is my opinion that a person who as alleged forged documents intending to use same to impersonate a law enforcement agent with the objective to extort money from individuals is alleged have committed a non violent criminal activity with the objective of earning wealth illegally. The proof of evidence in this case shows an allegation that the accused person forged documents including an identification card to show that he is an EFCC detective and with the forged documents he exhorted money from a Government Employee.
It is interesting to note that the gist of the arguments of the learned counsel for the Appellant is to the effect that while EFCC is not empowered to prosecute offences allegedly committed by the Appellant and contained in counts two to nine of the charge, the Police has power to do exactly that. The likely scenario being painted is that count one of the charge will be prosecuted by the EFCC while the Police will take up counts two to nine, either in the same court or in another court. I do not think that such a scheme of things is reasonable or neat enough. A situation where the prosecutor and an accused person will be shuttling between courts in respect of offences allegedly committed in the same transaction or in one fell swoop. One thing for sure; it is against public policy to have multiplicity of actions and afortiori multiplicity of prosecutions. Indeed, how this could be done without running foul of the principle of not subjecting an accused person to double jeopardy is what I am yet to discern or fathom. To my mind, if the end result is prosecutable, then the means by which that end result was attained should be prosecutable too.
Let me state that I have read the case of C.O.P. V. Effiong Orok Ayi & Ors (Supra). The learned counsel for the Appellant placed top heavy reliance on it. With due respect, I do not share his enthusiasm and optimism thereon. The case can be readily distinguished and is clearly inapplicable to the instant one.
In the premise of all that I have said above, I resolve the sole issue in this appeal in the affirmative and in favour of the Respondent herein. Having completed this exercise and in the end result, I am of the firm and considered viewpoint that this appeal is devoid of merit and it deserves to fail.
It is accordingly dismissed by me.
Other Citations: (2009)LCN/3208(CA)
