Ezebunwo Nyesom Wike V. Federal Republic Of Nigeria (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A

This is an appeal against the Ruling delivered by Honourable Justice F.A. Ojo of the High Court of the Federal Capital Territory, Abuja on 17th March, 2009 refusing and dismissing the Appellant’s application dated 23rd October, 2008 seeking to quash the criminal charge preferred against him. The High Court of the Federal Capital Territory, Abuja will hereafter be simply referred to as the lower court.

The facts relevant to the appeal as gathered from the brief of argument of the Appellant are to the effect that Appellant at all material time was/is the Chief of Staff to the Governor of Rivers State. By his schedule of duties, he is the administrative officer for Rivers State Government House, Port-Harcourt. His duties as Chief of Staff are related to Rivers State.

The Economic and Financial Crimes Commission (hereinafter simply referred to as “the EFCC”) caused the Appellant to be arrested upon a petition written by a body called “Rivers Union”. It is the case of the Appellant that nobody from the supposed union made any statement to the “EFCC”. In the circumstance it was said that there was nothing volunteered by the “union” as evidence against the Appellant. The Appellant claimed that the petition which formed the basis of his arrest has as its root, his activities with his bank – Port-Harcourt branch of Zenith Bank Plc. There was nothing to connect the Appellant with Federal Capital Territory, Abuja. It is also the claim of the Appellant that nothing transpired in the Federal Capital Territory, Abuja from the three statements attached to the proof of evidence.

It is alleged that the Respondent left Port-Harcourt where the Appellant works and where the Bank accounts he is alleged to have used in committing offences are located, and came to the Federal Capital Territory, Abuja for the purpose of arraigning him. The Appellant said that the choice of venue by the Respondent is a clog put in his way to defend himself. The inhibition the Appellant has also alleged is a violation of his right to fair trial in that, he has been put in such a situation that, he has not been given the appropriate opportunity to prepare for and defend himself of the allegations leveled against him.

Furthermore, the Appellant claimed that none of the three prosecution witnesses made any statement to show that, he committed any offence within the Federal Capital Territory or under the Penal Code Law of the Federal Capital Territory to enable the High Court of the Federal Capital Territory assume jurisdiction on the complaints leveled against him. The Appellant equally claims that no witness made any statement relating to the ingredients or the essential elements of the offences leveled against him.

In the light of the above, the Appellant being of the view that his prosecution on the basis of the Charge preferred against him is an abuse of the process of court filed an application on notice praying that the said Charge be quashed. As already stated the lower court dismissed the application of the Appellant.

The Appellant being dissatisfied with the Ruling has appealed to this Court by a Notice of Appeal dated 30/3/2009 filed on the same day. The Notice of Appeal contains five grounds of appeal. The grounds of appeal shorn of their respective particulars read thus: –

“1. The learned trial judge erred in law and acted against the tenets, intendment and spirit of the Constitution of the Federal Republic of Nigeria, 1999, in particular, section 36 thereof, when he held thus:

“On the first issue it is my humble view that by virtue of section 5(1) of the EFCC Act the Rivers State Government itself need not complain of missing funds before the EFCC can cause investigation and prosecution in relation to affairs of Rivers State Government and I so hold” and thereby came to a wrong decision which has occasioned a miscarriage of justice and against the aforesaid provision of the Constitution of the Federal Republic of Nigeria, 1999

2. The learned trial judge erred in law when he held;

“From the statements of the witnesses and the documents attached thereto including the bank statements of the Government House Port-Harcourt and that of the accused at Zenith Bank, Port-Harcourt branch there is evidence that funds belonging to the Rivers State Government were lodged and withdrawn and some of the said funds flowed into the account of the accused person in questionable circumstances.

In the circumstance I am of the humble view that a prima facie case has been established against the accused person/applicant and that there are grounds for proceedings against him”

and thereby came to a wrong decision in holding that a prima facie case has been established against the Appellant and this has occasioned a miscarriage of justice.

3. The learned trial judge erred in law in assuming jurisdiction over the criminal charge preferred against the Accused person/Appellant when from the totality of the charge and proof of evidence the offence(s) in question allegedly took place in Rivers State, a place outside the jurisdiction of the trial High Court.

4. The learned trial judge erred in law when he assumed jurisdiction over the charge against the Appellant in breach of the Appellant’s constitutional right to fair hearing which error has occasioned a grave miscarriage of justice

5. The learned trial judge erred in law in assuming jurisdiction over the criminal complaint against the accused person/Appellant when the Complaint are (sic) not matters within the penal code (sic), which error has occasioned a grave miscarriage of justice.”

In compliance with the Rules of this Court, parties in the appeal filed and exchanged briefs of argument. The appeal was entertained on 25/5/2009, L.O. Fagbemi SAN, learned lead senior counsel for the Appellant in urging this Court to allow the appeal relied on and adopted Appellant’s brief of argument dated 8/4/2009 filed on the same day but deemed as properly filed and served on 25/5/2009 and Appellant’s Reply brief of argument dated 20/4/09 but filed on 22/4/2009.

G.O. Obla learned lead counsel for the Respondent in urging that the appeal be dismissed relied on and adopted Respondent’s brief of argument dated 16/4/2009 and filed on the same day, He also relied on the List of Authorities filed on 22/5/2009.

In the Appellant’s brief of argument three Issues are formulated for the determination of the appeal. The Issues are: –

“1. Whether the learned trial judge was right in his interpretation of the powers of the EFCC as provided for under Section 5(1) of the Economic And Financial Crimes Commission Establishment Act? Ground 1.

2. Whether the learned trial judge was right in his reasoning and holding that, prima facie case has been established against the Accused/Appellant to warrant proceeding against him? Ground 3.

3. Whether the Appellant’s right to fair hearing and fair trial is not breached by prosecuting him in a jurisdiction other than the place where the offences alleged were committed? Grounds 3, 4 and 5.”

Three Issues were likewise formulated for the determination of the appeal in the Respondent’s brief. The Issues are: –

”1. Whether by its operation and best practices and by Section 5(1) of the Economic and Financial Crimes Commission (Establishment) Act, 2004, the EFCC must necessarily wait for a formal petition from Rivers State Government before it can investigate and prosecute any allegation of abuse of office or other corrupt practices perpetrated by public officers’ (sic) against the Rivers State?

2. Whether or not by the proof of evidence in support of the charge in this case, there is a ground for proceeding with a full trial of the Accused Person/Appellant?

3. Subject to the leave of the Court being granted on the Issue of jurisdiction; Whether the Appellant’s Right to Fair Hearing and Fair Trial was breached threatened by prosecuting the Appellant in Abuja?

The appeal will be determined upon the Issues formulated in the Appellant’s brief as they actuate the grouse of the Appellant with the Ruling of the lower court better and as they in any event also substantially subsume the Issues formulated by the Respondent.

APPELLANT’S ISSUE 1

Dwelling on this Issue, the learned senior counsel for the Appellant said it relates to the perception the learned trial judge had in respect of the powers of the EFCC to investigate and prosecute for offences committed by a person.

Learned senior counsel submitted that the charge against the Appellant is no more than a sham in that, the Rivers State Government whose monies were allegedly converted and against whom criminal breach of trust has been allegedly committed has not lodged any complaint to the EFCC, hence there can be no lawful justification for the prosecution of the Appellant.

He stated to the effect that the lower court was wrong in the view it expressed in resolving this issue and its holding on the said view. The view of the lower court as can be gathered from page 204 of the Records is that by virtue of Section 5(1) of the EFCC Act, the Rivers State Government itself need not complain of missing funds before the EFCC can cause investigation and prosecution in relation to the affairs of the Rivers State Government and I so hold.

Learned senior counsel in order to show that the lower court was wrong in its view and holding set out the provisions of Section 5(1) of the EFCC Act verbatim. He stated the principles governing the interpretation of statutes to be (i) that the courts are to give the words of a statute their ordinary grammatical meaning where the words admit of no ambiguity; and (ii) that courts are not to import into a statute what has not been provided for therein. The cases of Chukwuogor v. Chukwuogor (2006) 7 NWLR (Pt. 979) 305; and M.F. Kent (WA) Ltd. V. Martchem Ind. Ltd. (2000) 8 NWLR (Pt. 669) 459 at 473 were cited in aid. He submitted that nowhere in Section 5(1) of the EFCC Act has the Commission been given powers to investigate on its own without any complaint. That in the circumstance the reasoning adopted by the trial Judge was fallacious and untenable as it has no legal support in the provisions referred to by the said trial Judge. Learned senior counsel submitted that the reasoning is most perverse.

Learned senior counsel cited Section 5(1)(h) of the EFCC Act in aid of the submission that complaint is the catalyst that activates the exercise of powers by the EFCC, That the provision in question underscores the necessity for a complainant to the EFCC before it can commence investigation. The provision of the Section reads thus:-

Section 5(1) (h)

“(h) the examination and investigation of all reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or groups involved.”

In the premises this Court was urged to hold that, the reasoning of the learned trial judge that, the Government of Rivers State need not complain before investigation is commenced cannot stand.

Learned senior counsel further submitted that the reasoning of the learned trial Judge if allowed will be a clear breach of the provisions of the 1999 Constitution which guarantees a fair trial and fair hearing to an accused person. Referring to Section 36(6) of the 1999 Constitution, senior counsel submitted that there should be no trial by ambush. That to guarantee the right to fair hearing and fair trial, the prosecution must place all the facts on the table so that, in applying the test of a reasonable man, a right thinking member of the society should be able to say that, indeed a person has been given a fair trial. The case of Mohammed v. Kano N.A. (1968) All Nigerian Law Report 411 at 413 – 415 was cited in relation to the principles of fair trial. Applying the test of a fair trial as enunciated in the said case to the one at hand, senior counsel submitted that the following became relevant if a complaint from the Rivers State Government is not a sine qua non to a lawful investigation and prosecution: It would then mean that:

(i) No complaint exists;

(ii) E.F.C.C. on its own is the complainant;

(iii) E.F.C.C. is the investigating body;

(iv) E.F.C.C. is the prosecuting body,

The sum total of which is that EFCC is conducting or can conduct a trial by fishing or ambush.

He said that in the face of exercise of powers by E.F.C.C. the question of objectivity has been thrown overboard in that, the body who alleged the commission of a crime is the same body investigating the allegation and ultimately prosecute for the alleged commission of the offence, That in such a situation, whatever is favourable to the accused, would certainly not be brought forward by the complaint, investigator who is also prosecuting. Applying the test of a reasonable man, it was said that the Appellant will not have a fair trial and to that extent, the reasoning of the trial Judge as to the implication of Section 5(1) of the EFCC Act will be unconstitutional by reason of infraction of Section 36(6) of the 1999 Constitution which guarantees fair hearing and therefore null and void.

Learned lead counsel for the Respondent dealt with the Issue under consideration under Issue 1 formulated in the Respondent’s brief. He submitted that the EFCC by its operations can act proactively or re-actively. That it proceeds proactively when in the course of its activities and surveillances it stumbles upon information concerning the commission of economic and financial crimes; and re-actively when it responds to petition or complaint made by affected victims of economic and financial crimes or the public at large. Learned counsel submitted that in the instant the EFCC proceeded to investigate the allegations of corruption and abuse of office levied against the Appellant and others based on a petition by the Rivers Citizens dated 9/9/2008 dated re-actively. Learned lead counsel for the counsel stressed that the EFCC can act on anonymous information and need not be unduly concerned as to the source of its information. This according to learned lead counsel is particularly so as it is factually impossible and would be illogical to the point of absurdity for every perpetrator of fraud against a particular State to report their nefarious activities to the competent authority to investigate them.

Dwelling on the interpretation accorded Section 5(1) of the EFCC Act by the lower court and which learned senior counsel for the Appellant has argued is wrong, learned lead counsel for the Respondent submitted that if it is assumed (though not conceded) that the stand of the Appellant that the instant prosecution required a complaint is correct then there was a complainant in the form of the petition from the “Rivers Union”. Learned lead counsel also submitted that the provision of Section 5(1)(h) was sufficient for investigation by the EFCC based on the petition dated 9/9/2008 from the Rivers Union.

Dwelling on the submissions of senior counsel for the Appellant attacking the proof of evidence, lead counsel for the Respondent submitted that arguments in this regard were pre-emptive and premature. That on the face of the proof of evidence and a community reading of the documents attached thereto, the Respondent has adequately met the requirement of making a prima facie case against the Appellant requiring him to make some explanation. The cases of Ikomi v. The State (supra); and Ubanatu v. COP (2000) 2 NWLR (Pt. 643) 115 at 129 were cited in aid.

The Issue under consideration questions the correctness of the view expressed by the learned trial Judge in the Ruling appealed against that by virtue of the provisions of Section 5(1) of the EFCC Act, the Rivers State Government itself need not complain of missing funds before the EFCC call cause investigation and prosecution in relation to affairs of the said State and his holding in that regard. See page 204 of the Records.

There is no doubt that the provisions of the EFCC Act particularly the provisions of Section 5(1) (sic: 6(1) call for interpretation for the purpose of resolving Issue 1 under consideration.

The law would appear to be settled when it comes to the interpretation of the provisions of statutes; and it is that they must be construed literally and the words therein given their ordinary meanings. In this regard see the following cases: –

1. ACTION CONGRESS & ANOR V. INEC (2007) All FWLR (Pt. 378) 1012 at pages 1088-1089. In this case, the Supreme Court stated to the effect that the main function of a judge it has consistently been said is to declare what the law is and not what it is supposed to be. This is against the backdrop that the business of law making is that of the legislature. The Judge in the discharge of his primary duty is to give the provisions of the Constitution or statutes, where they are unambiguous, their literal, natural and ordinary grammatical meanings. That a Judge in order to do justice in the exercise of his interpretative jurisdiction must find out the intention of the legislature with regards to the relevant provisions of the Constitution or statute that call for interpretation, demands nothing extraordinary. This is because the intention to be sought is as expressed in the words used in couching any of the provisions in question.

2. HON. MICHAEL DAPIANLONG & 5 ORS V. CHIEF (DR.) JOSHUA CHIBI DARIYE & ANOR (2007) All FWLR (Pt. 373) 81. In this case the Supreme Court reiterating its position in the case of Fawehinmi v. I.G.P. (2002) FWLR (Pt. 108) 1355, etc, stated thus at pages 128-129 “The proper approach to the interpretation of clear words of statutes is to follow them, in their simple, grammatical and ordinary meaning rather than look further because that is what prima facie gives them their most reliable meaning: see … This is generally also true of the construction of constitutional provisions if they are clear and unambiguous even when it is necessary to give them a liberal or broad interpretation”.

3. ALHAJI SHEU ABDUL GAFAR V. THE GOVERNMENT OF KWARA STATE & 2 ORS (2007) All FWLR (Pt. 360) 1415. In this case, the Supreme Court dwelling on the duty of the court when it comes to statutory interpretation stated at page 1444 thus “It is now settled law that the duty of the courts, is to interpret the words contained in a statute or Constitution in their ordinary and literal meaning, Certainly, it is not the duty of the court, to go outside the words used and import an interpretation which may be or is convenient to it or to the parties or one of the parties.”

4. ATTORNEY-GENERAL OF LAGOS STATE V. EKO HOTELS LIMITED & ANOR (2006) All FWLR (pt. 342) 1398 where the Supreme Court per Tobi, JSC; dwelling on the interpretation of constitutional provisions stated at pages 1471-1472 to the effect that words in a Constitution bear their ordinary grammatical meaning, when the intention of the maker of the Constitution is clear and can be captured at a glance of the language used. That it is when the meaning is not directly obvious on the face of the language, that the court will investigate the intention behind the use of the language and come out with an interpretation or construction that best fits the apparently hidden intention.

I must however be quick to add that conduct of investigation does not necessarily have to end in prosecution. The decision to prosecute will no doubt depend on what investigation reveals. It is also for the EFCC having conducted its unsolicited investigation or investigation based on anonymous petition, to now decide whether without any complaint from any particular organisation/victim, it can sensibly prosecute the person investigated.

In the light of all that I have stated above, I therefore do not see anything wrong in the reasoning and conclusion of the lower court at page 204 to wit: “On the first issue it is my humble view that by virtue of Section 5(1) of the EFCC Act the Rivers State Government itself need not complain of missing funds before the EFCC can cause investigation and prosecution in relation to affairs of the Rivers State Government and I so hold”. I find the lower court to be eminently correct.

I am aware that learned senior counsel for the Appellant has argued that the situation in which the EFCC is the complainant and investigator as well as prosecutor amounts to a trial by ambush and indeed violates the right of the Appellant under Section 36(6) of the 1999 Constitution. I cannot but say that I do not see how the fact that EFCC is a complaint, investigator and prosecutor can rightly be said to violate the Appellant’s right under the provision in question at all and particularly in the circumstance of this case.

The case of the Appellant has gone past that of arrest. He has already been charged to court. The case of the EFCC against him has been disclosed in the charge and proof of evidence served in the case. The Appellant in my view, at this stage is to be concerned with the case as disclosed by the proof of evidence. If it is his case, that it is apparent on the face of what the prosecution have filed, that there is anything favourable to him but which has been suppressed by the prosecution, the Appellant should know what to do about that. In any case it is obvious that the Appellant having perceived some deficiency or defects in the case of the prosecution against him has taken steps to challenge the same. This is all this appeal is about. The case of the prosecution based on the petition received by the EFCC (and which has been attached to the charge); the result of investigation of the EFCC into the said petition in the form of statements of witnesses, have been disclosed to the Appellant in the charge and proof of evidence served on him. The Appellant clearly understands the case of the prosecution as it has been disclosed, to the extent that he had brought a motion seeking that the charge against him be quashed for non-disclosure of a prima facie case and for being in abuse of court process. This is surely a defence to the case at this stage of the proceedings.

The law is settled that it is the person who alleges the breach of the rules of fair hearing that has the burden of proving same, and in addition that whether a trial or proceeding had been fair or not, depends on the facts and circumstances of each case, See ALHAJI RAUFU GBADAMOSI V. OLAITAN DAIRO (2007) 1 SC (Pt. II) 151 at 171-172; and AUGUSTINE MAIKYO V. W.E. ITODO & ORS (2007) 3 SC (pt. II) 34 at 54.

From all that has been said above, where then is the violation of the Appellant’s right under Section 36 of the Constitution. The clear answer is that there has been no violation of the Appellant’s right under Section 36 of the Constitution applying the test of a reasonable man to the reasoning of the learned trial Judge.

In conclusion Appellant’s Issue 1 is accordingly resolved against him.

APPELLANT’S ISSUE 2

This Issue questions the correctness of the reasoning of the learned trial Judge when held that a prima facie case has been established against the Appellant.

Learned senior counsel for the Appellant having first set out all the counts in the Charge preferred against the Appellant, said that the offences alleged against the Appellant are largely offences against Sections 309 and 315 of the Penal Code Cap 532 Laws of the Federation of Nigeria 1990, He further said that Counts 1, 3, 4, and 6 deal with criminal conversion: while Counts 2, 5 and 7 deal with criminal breach of trust of funds belonging to the Rivers State Government.

Senior counsel having also set out in the Appellant’s brief in extenso the submissions made to the lower court on this Issue said to the effect that the arguments are valid and still relevant. He further said it was now necessary to consider, how the learned trial judge resolved the argument canvassed by the Appellant? Appellant’s counsel stated that the learned trial judge did not say that the statements of the prosecution witnesses established the essential ingredients of the offences. That instead of proceeding to uphold the application of the Appellant by quashing the charge, the learned trial judge however reasoned at page 206 of the Records thus:

“From the statements of the witnesses and the documents attached thereto including the bank statements of the Government House Port-Harcourt and that of the accused at the Zenith Bank, Port-Harcourt branch there is evidence that funds belonging to the Rivers State Government were lodged and withdrawn and some of the said funds flowed into the account of the accused person in questionable circumstances.”

Learned counsel submitted that the reasoning of the learned trial judge is untenable. This is because in the first place, none of the prosecution witnesses in his statement said that funds were withdrawn and transferred from Rivers State Government Account into Appellant’s account. It was further submitted that the reasoning of the trial judge is highly erroneous and it has impaired that court’s sense of justice. The reasoning of the court was beclouded by reliance on evidence not before it. The law was said to be that a court of law can only act on legal evidence before it and the case of Sambo v. State (1993) 6 NWLR (pt. 300) 399 was cited in aid. Senior counsel also submitted that the reasoning of the learned trial Judge on “flowing of money from Government account to Appellant’s account” is highly perverse and cannot stand.

The court it was said is expected to be an impartial umpire and should not descend into the arena. The allegations against the Appellant were essentially that of conversion and criminal breach of trust. The prosecution has not charged the Appellant with any offence for moving fund from one account to the other. It is said to be quite clear from the printed records that, the learned trial judge went beyond the facts presented by the prosecution to reach his conclusion thereby making an unsolicited case for the prosecution. In doing so, the learned trial judge ignored or seem not to appreciate the totality of the statements of prosecution witnesses that Appellant’s account is different from Rivers State Government House account and that, Appellant is not even a signatory to the account of Rivers State Government House. The Court was urged to resolve this issue in favour of the Appellant and quash the charge against him as no prima facie case has been made out against the Appellant to warrant the matter going to trial.

Dwelling on this Issue, lead counsel for the Respondent said that it is settled that prima facie case simply means “a ground for proceeding” he cited the case of Mohammed Abacha v. The State (2002) 11 NWLR (Pt. 779) 437 at 445 – 446 as deciding that the test for determining whether a prima facie case exists against an accused person is to consider the totality of the proof of evidence in support of the charge and to decide whether if the evidence remains unchallenged there is a ground for proceeding or asking the accused person to explain his complicity in the entire charge. Also cited in aid are the cases of Ubanatu v. COP (supra); Okoro v. State (1988) 5 NWLR (Pt. 94) at page 225; and Ikomi v. The State (1986) 3 NWLR (Pt. 28) at page 340.

Stressing that the court is not concerned with the guilt or otherwise of the Appellant at this stage of the proceedings, learned lead counsel submitted that there was ground for calling on the Appellant to explain his role in the entire fraud and money laundering allegations in Rivers State should the evidence in the proof of evidence in support of the Charge including the petition dated 9/9/2008, the various statements of the witnesses and other documentary evidence before the court, remain unchallenged. He concluded that it is in the best interest of justice for this Court to allow the case to proceed to trial so that the allegations against the Appellant can be determined on evidence. He further stated that the case of Abacha v. State (supra) relied upon by the Appellant is not applicable to the instant case.

It is no doubt now settled law that an accused person facing a criminal prosecution and conceiving that the indictment preferred against him does not disclose an offence or that the offence preferred against him does not find support in the evidence to be relied upon as furnished by the prosecution, can apply to the court seised of the matter that the indictment or charge be quashed or dismissed. See the case of ABACHA V. THE STATE (2002) 11 NWLR (Pt. 779) 437 relied upon by the Appellant and the unreported decision of this Court in APPEAL NO. CA/A/265C/08 – ADUKU V. FEDERAL REPUBLIC OF NIGERIA delivered on 4th March, 2009.

As earlier Stated in this judgment, in the Appellant’s brief of argument learned senior counsel Stated that the submissions made before the lower court are still relevant in the consideration of this Issue in this court, and for this reason the said submissions were copiously set out therein. In the submissions it was made clear that out of the eight proposed prosecution witnesses listed at pages 7 – 8 of the Records only the 5th – 8th of them made written statements that were attached to the proof of evidence and that the proof of evidence can only be considered in the light of the statements of the said 4th – 8th proposed prosecution witnesses, I cannot but say that learned senior counsel is very correct in this regard. This is because it is simply inconceivable how whatever proposed prosecution witnesses whose evidence have not been disclosed (in that their statements were not attached or otherwise disclosed in the proof of evidence) have to say in the proof of the case against the Appellant can be utilised in determining whether or not a prima facie case is disclosed against the Appellant.

The Charge preferred against the Appellant is at pages 4 -6 of the Records; while the written statements of those proposed prosecution witnesses that made statements; the written statement of the Appellant; and the petition dated 9/9/2008 are at pages 9 – 30, Senior counsel at pages 15 – 23 of the Appellant’s brief of argument carried out an incisive analysis of the statements vis-a-vis the counts in the Charge and in doing this, also considered the elements or ingredients of the offences in the counts. He concluded to the effect that the statements on their faces severally or jointly do not disclose any case against the Appellant in respect of the offences charged.

I have myself painstakingly perused each of the statements of the 5th- 8th proposed prosecution witnesses and I have not seen any thing therein that remotely links the Appellant with any of the offences in the Charge preferred against him having regard to the respective ingredients or elements of the said offences. Similarly it is hardly arguable that whatever it is that links the Appellant with any of the offences preferred against him, is in his written statement in which he never admitted or confessed to the commission of any offence talk less of the offences preferred against him. I am aware of the letter dated 9/9/2008 attached to the charge and on the basis of which the EFCC apparently commenced their investigation into this matter. It is clear that none of the witnesses that made statements is the author of the said letter. The names of those who signed the letter are clear thereon but they both are not listed in the proof of evidence as proposed prosecution witnesses; neither is either of them so listed. Of what use is the letter then. In the evidence of which of the proposed prosecution witnesses that made written statements is the letter grounded? True it is that the EFCC can initiate investigation on the basis of petitions, but it is no doubt trite law that for the petition to be of any purpose, it is necessary for the maker to be available for trial. The only alternative in the instant case is if the Government of Rivers State after being approached by the EFCC with the result of the investigation carried out on the petition decides to confirm through someone who will have to be fielded as a prosecution witness the correctness of the allegation in the petition. This is why I had initially said that after the unsolicited investigation of a matter it is for the EFCC to determine the sensibility of prosecuting without a formal complaint from the organisation/victim concerned.

Now learned senior counsel for the Appellant has submitted that the reasoning of the lower court that funds belonging to the Rivers State Government were lodged and withdrawn and some of the said funds flowed into the account of the accused in questionable circumstances is perverse. I cannot agree more with learned senior counsel. It is definitely incorrect that the statements of the proposed prosecution witnesses show this to be the case. And if there was any entry that showed what the learned trial Judge said to be correct, then one would have at least expected him to have referred to such entry.

At the stage when an accused person challenges the charge against him as not being borne out by the evidence in the proof, I do not consider it sufficient that the prosecution should just chorus the cliche “prima facie case has been established” it must now pinpoint or highlight the evidence or pieces of evidence that have established the said prima facie case. After all, the burden to justify prosecution at any stage always remains on the prosecution. Therefore when as in the instant case the Appellant has attacked the proof of evidence in the form of statements of proposed prosecution witnesses attached to the Charge preferred against him, as not establishing the said Charge, it is for the prosecution to now highlight what it is that constitutes the prima facie evidence in the materials it relies on in the case against the Appellant. This, the Respondent has glaringly failed to do. In the face of the analysis of the counts in the Charge and their respective elements vis-‘E0-vis the evidence relied upon by the prosecution, I clearly find that the evidence presently disclosed by the prosecution to sustain the Charge against the Appellant does not disclose a prima facie case against him.

From all that has been said before now, Appellant’s Issue 2 is accordingly resolved in his favour,

APPELLANT’S ISSUE 3

This issue relates to the propriety of the High Court of the Federal Capital Territory assuming jurisdiction to try Appellant for offences not committed in the Federal Capital Territory.

Dwelling on the Issue, senior counsel said that the totality of the documents presented by the prosecution in support of the charge preferred against the Appellant is anchored on the following facts:

(i) Appellant was/is the Chief of Staff to the Governor of Rivers State;

(ii) Appellant by virtue of his position is the administrative officer of Government House, Port-Harcourt;

(iii) Funds were allegedly moved from two accounts in Zenith Bank that is, Rivers State Government House Account and Appellant’s account;

(iv) The accounts in question are domiciled in Port-Harcourt, Rivers State;

(v) PW5, PW6 and PW8 by their written statements showed that, the transaction or facts which gave rise to the charge against the accused person, took place at Zenith Bank, Port-Harcourt, and Rivers State.

Senior counsel raised the question as to why the learned trial Judge held that a prima facie case has been established against the Appellant. He referred to page 206 of the Records for the answer and quoted same as: –

“From the statements of the witnesses and the documents attached thereto including the bank statements of the Government House Port-Harcourt and that of the accused at the Zenith Bank, Port-Harcourt branch there is evidence that funds belonging to the Rivers State Government were lodged and withdrawn and some of the said funds flowed into the account of the accused person in questionable circumstances.”

He stated that above reasoning strengthened the objection of the Appellant that he is being tried in Abuja for alleged offences committed in Port-Harcourt, Rivers State, Senior counsel argued that if indeed funds belonging to Rivers State Government were unlawfully withdrawn from Zenith Bank, Port-Harcourt Branch, (which is not conceded) it follows that if any offence has been committed, such offence will be one contrary to the Criminal Code of Rivers State. He submitted that the High Court of the Federal Capital Territory does not exercise jurisdiction over offences committed under the Criminal Code but the Penal Code, and that charging the Appellant under the Penal Code is a mere subterfuge and an attempt to pull wool on the face of the court so as to clothe the court with jurisdiction to trial the Appellant for an offence not committed within the jurisdiction of the Honourable Court. The conduct of the prosecution in filing this suit in a criminal procedure code jurisdiction it was submitted an abuse of court process as it is an attempt to harass and intimidate the Appellant. Learned senior counsel submitted that the court has a duty to put an end to the abusive proceeding and conduct of the prosecution. The case of Amaefule v. State (1988) 2 NWLR (Pt. 75) 156 at 179 where the words abuse of process of court was defined was cited in aid.

Senior counsel raised the question as to what more could be abusive than the act of the prosecution in bringing somebody from Port-Harcourt, Rivers State for offences allegedly committed in respect of a bank account domiciled in Port-Harcourt, Rivers State for arraignment and prosecution in the Federal Capital Territory, Abuja by creating a picture that, the offences were committed in Abuja when from the proof of evidence there is no iota of witness statement showing that the offences were committed in Abuja. The court is urged to put an end to the abusive action of the prosecution by striking out the charge against the Appellant.

Senior counsel further submitted that preferring the instant charge against the Appellant at Abuja is a violation of his right to fair hearing and fair trial guaranteed under Section 36(6) of the 1999 Constitution. In this regard it was argued that fair trial and fair hearing entail that nothing should be put in the way of accused person to defend himself of the sundry criminal allegation leveled against him. The act of the EFCC in leaving the State where monies were allegedly taken out of an account and to come to before a particular Judge in Abuja for the purpose of prosecuting the Appellant was said to be such that would give a reasonable man the impression that the EFCC has come to a court where it felt it can secure conviction of the Appellant (i.e. forum shopping), It was submitted that irrespective of how the charge is framed or couched, the High Court of the Federal Capital Territory cannot assume territorial jurisdiction over offences committed in respect of some bank accounts in Port Harcourt branch of Zenith Bank Plc. The cases of Ibori v. F.R.N. (2009) 3 NWLR (Pt. 1128) 283 at 308 – 309 was cited in aid.

Lead counsel for the Respondent in dwelling on this Issue said that the position of the Appellant cannot be sustained as it has consistently been the case of the Respondent that the monies the subject of the proceedings are the proceeds paid into the account of the Government of Rivers State from the Federation Account and that the Rivers State Government Allocation Account is domiciled in Abuja and the proceeds thereof are the subject of the instant prosecution. This important element of the proceedings lead counsel submitted confers jurisdiction on the High Court of the Federal Capital Territory. He would also appear to submit that because corrupt for which the Appellant is charged is an offence against the country, then it must be tried in Abuja and cited the case of A-G Ondo State v. A-G Federation (2002) 9 NWLR (Pt. 772) 222 at 306 in aid. He also submitted that inasmuch as the Appellant willingly called at the EFCC Office at Abuja; was duly arraigned before the lower court where his plea was taken he has in the circumstances waived his right on the issue of jurisdiction.

I definitely do not understand the lead counsel for the Respondent as disputing the fact that where the ingredients of an offence occurs outside the territorial jurisdiction of a court asked to adjudicate, such a court will not assume jurisdiction over the offence for apparent lack of jurisdiction. This much the case of Ibori v. FRN cited by Appellant’s counsel decided amongst other.

Learned lead counsel for the Respondent has submitted that it has consistently been the case of the Respondent that monies in question the subject of the proceedings are proceeds paid into the account of Rivers State from the Federation Account”. I must say that I have painstaking perused the statements of witnesses and documents attached to the Charge and I have been unable to see where such claim was made at all talk less of its having been consistently made,

In any case I am even at a loss to appreciate how the Respondent’s consistent claim/case in this case that the monies in question are proceeds paid into the Rivers State Federation Allocation Account domiciled in Abuja is relevant having regard to the case that has been put up in the written statements of proposed prosecution witnesses and other documentary evidence attached to the Charge preferred against the Appellant. In this regard is the fact that there is no scintilla of evidence that the Appellant had anything to do with the Rivers State Federation Account. Even if the monies are Rivers State Government funds paid into the Rivers State Federation Account, the account which the prosecution have by themselves held out the Appellant as having anything to do with, is that of Government House Port-Harcourt, Otherwise why exhibit the said account? And as if these were not enough it is to be noted that all the allegations in the petition of 9/9/2008 that moved the EFCC into action are said to have occurred in respect of accounts operated in Port-Harcourt. The claim of the Respondent that Appellant has committed any offence in relation to anything in Abuja has no support in the evidence the prosecution has itself disclosed.

As submitted by learned senior counsel for the Appellant, I too do not believe that there can be a better example of unfair trial than to try the Appellant who from evidence the prosecution willingly disclosed can only be said to have committed an offence in Port-Harcourt, in Abuja, Prosecution is an expensive venture. While, I would not go to the extent suggested by senior counsel that bringing the Appellant down to Abuja for trial is because it is only in Abuja that the EFCC believes it can secure a conviction, I cannot but opine that it is most likely to be cost factor the EFCC has taken into consideration and has thereby developed the altitude that accused persons must be come to it at Abuja, rather than it, going to them wherever the crime they are being tried for, was committed by them, The convenience of the EFCC should never be allowed to seemingly derogate from the right of an accused person to fair trial. Jurisdiction being a prerequisite to adjudication cannot be waived more so as in the instant case where its breach or violation also tantamount to a denial of fair trial to the Appellant.

From all that has been said, Appellant’s Issue 3 is accordingly resolved in his favour.

Having resolved Issues 2 and 3 respectively, in favour of the Appellant it follows that the Charge preferred against the Appellant must be terminated at this stage. In the circumstances, the said Charge given the success of Issue 2 has to be and is hereby quashed. However if Issue 2 had not been resolved in favour of the Appellant, then in the alternative, this case would have been struck out given the resolution and success of Issue 3 in favour of the Appellant.

Appeal is allowed and Ruling of the lower court dated 17th March, 2009 is set aside.

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Other Citations: (2009)LCN/3429(CA)