Frank Amah V. Federal Republic Of Nigeria (2019)
LAWGLOBAL HUB Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
The appellant and one other, CHYFRANK NIGERIA Plc., were arraigned before the High Court of Lagos State, Ikeja Judicial Division on a six count charge as follows:-
“STATEMENT OF OFFENCE – 1ST COUNT:
Conspiracy to obtain money by false pretences contrary to Section 8 (a) and 1 (3) of the Advance Fee Fraud and other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE:
Frank Amah and Chyfrank Nigeria Plc, and others still at large on or about 1st day of February, 2005 at Ikoyi Lagos within the Ikeja Judicial Division of the Lagos State High Court with intent to defraud, did conspire to obtain money from Mr. Donatus Duru by false pretence.
STATEMENT OF OFFENCE – 2ND COUNT:
Obtaining money by false pretences contrary to Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Frank Amah and Chyfrank Nigeria Plc and others still at large on or about 3rd day of March,
1
2005, at Ikoyi, Lagos within the Ikeja Judicial Division of the Lagos State High Court with intent to defraud, fraudulently induced Mr. Donatus Duru to pay the sum N7,300,000 (Seven Million Three Hundred Thousand Naira) into the account of Federal Government Implementation Committee, under a false pretence, that you were engaged by Abubakar Mallam, Deputy Controller of Custom to sell House No. 7 Bell Avenue Lagos which you falsely stated was officially allotted to the said Abubakar Mallam which pretences you knew were false.
STATEMENT OF OFFENCE – 3RD COUNT
Obtaining money by false pretences contrary to Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Frank Amah and Chyfrank Nigeria Plc and others still at large on or about 3rd day of March, 2005, at Ikoyi, Lagos within Ikeja Judicial Division of the Lagos High Court with intent to defraud, fraudulently induced Mr. Donatus Duru to pay the sum of N80,300,000 (Eighty Million Three Hundred Thousand Naira) into the account of Federal Government Implementation Committee, under a false pretence, that
2
you were engaged by Abubakar Mallam, Deputy Controller of Custom to sell House No. 7 Bell Avenue Lagos which you falsely stated was official allotted to the said Abubakar Mallam which pretences you knew were false.
STATEMENT OF OFFENCE – 4TH COUNT
Obtaining money by false pretences contrary to Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Frank Amah and Chyfrank Nigeria Plc and others still at large on or about 3rd day of March, 2005, at Ikoyi, Lagos within the Ikeja Judicial Division of the Lagos High Court with intent to defraud, obtained the sum of N102,400,000 (One Hundred and Two Million Four Hundred Thousand Naira) from Mr. Donatus Duru by false pretences that you were engaged by Abubakar Mallam, Deputy Controller of Custom to sell House No. 7 Bell Avenue Lagos which you falsely stated was officially allotted to the said Abubakar Mallam which pretences you knew were false.
STATEMENT OF OFFENCE – 5TH COUNT
Stealing by fraudulent conversion contrary to Sections 383 (2) (f), 385 and 390 of the Criminal Code Law Cap C17 Laws of Lagos State of Nigeria.
3
PARTICULARS OF OFFENCE
Frank Amah and Chyfrank Nigeria Plc and others still at large on or about 3rd day of March, 2005, at Ikoyi, Lagos within the Ikeja Judicial Division of the Lagos State High Court did fraudulently steal and convert to your own use the sum of N86,900,000 (Eighty-six Million Nine Hundred Thousand Naira) property of Mr. Donatus Duru, which he entrusted to you for purchase of House No. 7 Bell Avenue Ikoyi, Lagos.
STATEMENT OF OFFENCE – 6TH COUNT
Stealing by fraudulent conversion contrary to Sections 383 (2) (f), 385 and 390 of the Criminal Code Law Cap C17 Laws of Lagos State of Nigeria.
PARTICULARS OF OFFENCE
Frank Amah and Chyfrank Nigeria Plc on or about 10th day of March, 2005, at Ikoyi, Lagos within the Ikeja Judicial Division of the Lagos State High Court did fraudulently steal and convert to your own use the sum of N7,900,000 property of Mr. Donatus Duru, which he entrusted to you for purchase of House No. 7 Bell Avenue Ikoyi, Lagos.”
Both accused pleaded not guilty. At the trial, the prosecution called 6 witnesses and tendered exhibits.
4
Some exhibits were also tendered by the defence during cross-examination of the prosecution’s witnesses. At the conclusion of the prosecution’s case, learned counsel for the accused persons made a no-case submission. In a considered ruling delivered on 14/10/2009, the learned trial Judge, M. O. OBADINA, J., upheld the submission and acquitted and discharged the accused persons on all the six counts.
Aggrieved by this decision, the respondent herein lodged an appeal at the Court of Appeal, Lagos Division. In its judgment dated 27/2/2015, the Court allowed the appeal in part. It affirmed the findings of the trial Court on counts 1, 2, 3 & 4 but set aside its decision in respect of counts 5 & 6. The case was remitted to the Hon. Chief Judge of Lagos State for reassignment to another Judge of the High Court for the retrial of the respondents on counts 5 & 6.
Not surprisingly, the 1st respondent (now appellant) is dissatisfied with the decision and has appealed to this Court vide a notice of appeal filed on 14/7/2016 containing four grounds of appeal.
The parties duly exchanged their respective briefs of argument in compliance with the rules of this Court.
5
At the hearing of the appeal on 17/10/2018, G. C. UGOCHUKWU ESQ., adopted and relied on the appellant’s brief filed on 19/2/2018 in urging the Court to allow the appeal. S. K. ATTEH ESQ., who settled the respondent’s brief, which was deemed filed on 17/10/18, adopted and relied on it in urging the Court to dismiss the appeal.
From the four grounds of appeal, the appellant distilled three issues for determination as follows:-
i. Whether the Economic and Financial Crimes Commission (E.F.C.C.), having placed reliance on a purported fiat of the Attorney-General of Lagos State authorizing it to prosecute for the offence of stealing by conversion (Counts 5 and 6 of the Information), being offences under the Lagos State Criminal Code Law, ought not to have furnished evidence of the said fiat before the trial Court to confer it with jurisdiction to entertain the matter. (Ground 1)
ii. Whether the failure of the appellant to raise an objection at the commencement of the proceedings to his prosecution by the Economic and financial Crimes Commission (E.F.C.C.), for the latter’s failure to tender evidence of a
6
purported fiat of the Attorney-General of Lagos State authorizing it to prosecute for the offence of stealing by conversion (Counts 5 and 6 of the Information), fettered the right of the Appellant to subsequently challenge the jurisdiction of the trial Court to entertain the matter on that same ground. (Ground 2).
iii. Whether, on the totality of the evidence adduced by the prosecution at trial, a prima facie case of stealing by conversion (in counts 5 and 6) under Sections 383 (2) (f), 385 and 390 of the Criminal Code Law, Cap 17, of Lagos State was made out against the appellant, so as to put the Appellant upon his defence of the charge. (Grounds 3 & 4).
The respondent formulated two issues for determination thus:-
(1) Whether based on provisions of the Constitution of the Federal Republic of Nigeria, Act, 1999 as amended and the EFCC 2004, as well as the decided cases on the issue, the lower Court was not right when it held that the Respondent can prosecute the Appellant for stealing under the Criminal Code of Lagos State. (Grounds 1 & 2).
7
(2) Whether the Court of Appeal was not right when it overruled the trial Court, that the Respondent has adduced a prima-facie evidence which required some explanations from the Appellant. (Grounds 3 & 4).
The respondent’s issue 1 covers the appellant’s issues 1 and 2 while the respondent’s issue 2 is in pari materia with the appellant’s issue 3. I am of the view that the respondent’s issues are more concise and adequate for the resolution of the issues in contention in this appeal. The appellant’s submissions under issues 1 and 2 will be considered together with the respondent’s Issue 1.
Before delving into the merits of the appeal, it is necessary to give a summary of the facts that gave rise to the charge before the trial Court.
The prosecution’s case was that sometime in February 2005, the appellant, who was the 1st accused at the trial Court, procured the services of one Mrs. Julie Adinuba (PW8) to assist him in selling some Federal Government houses at Ikoyi in Lagos State. He showed PW8 some letters of allocation issued by the Federal Government Implementation Committee for the sale of Federal Government landed property and gave her photocopies of the letters to enable her convince
8
prospective buyers of the genuineness of the offer. PW8 contacted one Gordon Omoegbedi (PW7), an Estate Surveyor, to assist in establishing the genuineness of the allocation letters. Upon being satisfied that the allocation letters were genuine, they both began to look for buyers.
PW8 approached one Donatus Duru (PW3) who showed an interest in purchasing one of the properties. PW8 and PW7 took PW3 to the appellant’s house and he confirmed the genuineness of the letters by showing them original copies of about 15 allocation letters. PW3 indicated his interest in No. 7 Bell Avenue, Ikoyi, which was allocated to one Alhaji Abubakar Mallam of 2A Sangiwa Street, Kano.
The appellant allegedly explained to PW3 that the said Alhaji Abubakar Mallam was a friend of his and a serving Deputy Comptroller of Customs aspiring to be appointed as the Comptroller General of Customs. PW3 was convinced and agreed to purchase the house for N190,000,000.00 (One Hundred and Ninety Million Naira only). PW3 insisted on consulting a lawyer before concluding the transaction. He rejected the initial request to pay the purchase price in cash.
9
It became necessary to adjust the purchase price after a miscalculation was detected in the allocation letter. They agreed that the proper calculation of the cost was N87,600,000.00 (Eighty-seven Million Six Hundred Thousand Naira only). It was agreed that the error would be corrected before any payment was made. It was also agreed that PW3 would pay N190 Million to Alhaji Abubakar Mallam, the allottee, by bank draft but said payment would be made through the 2nd accused, CHYFRANK NIG. PLC. It was also agreed, inter alia, that the appellant would issue separate drafts for the sums due to the Federal Government.
The Appellant subsequently informed PW3 that all the agreed pre-conditions had been complied with.PW3 therefore instructed his lawyer (PW1) to proceed with the transaction.
Shortly after the conclusion of the transaction, the Federal Government cancelled the sale of Federal Government Houses in Ikoyi and published the names of the affected allottees, advising them to go and collect a refund of their money.
To his surprise, PW4, Alhaji Abubakar Mallam, saw his name published in the daily newspapers as one of the allottees entitled to a refund.
10
He wrote petitions to various government agencies complaining that his name had been used fraudulently to purchase a Federal Government property in Ikoyi. This reaction was published in one of the daily newspapers. It caught the attention of PW1 and PW3 who immediately contacted the appellant. He allegedly tried to reassure them by stating that Abubakar Mallam’s reaction was understandable since, as an aspiring Comptroller General of Customs, he would not wish to jeopardise his job.
They were not satisfied with his explanation and reported the matter to the Economic and Financial Crimes Commission (EFCC). According to the prosecution, in the course of investigation, the EFCC discovered that N102,400,000.00 collected by the appellant through the account of CHYFRANK NIG. PLC (2nd accused) was not paid to Alhaji Abubakar Mallam as agreed. Rather, N94,800.000.00 was used to purchase a house at 22 Thompson Avenue, Ikoyi, Lagos from the Federal Government Implementation Committee, while part of the balance was used to buy shares for his children, cars and other items.
11
At the conclusion of the investigation the accused persons were arraigned before the Lagos State High Court on a six count charge as stated earlier.
In support of the first issue for determination in this appeal, it is the appellant’s contention that the Economic and Financial Crimes Commission (EFCC) has no statutory competence to prosecute the appellant for offences punishable under Section 383 (2) (f), 385 & 390 of the Criminal Code Law of Lagos State (hereinafter referred to as the Criminal Code), as charged in counts 5 & 6 of the information, without producing the fiat of the Attorney-General of Lagos State. Learned counsel for the appellant submitted that the lower Court was wrong to have relied on the case of Amadi Vs. F.R.N. (2008) 18 NWLR (Pt. 1119) 259 to hold that the tendering of such authority is unnecessary.
He submitted that the Economic and Financial Crimes Commission (Establishment) Act Cap. El, Laws of the Federation of Nigeria (LFN) 2004 (henceforth referred to as the EFCC Act), limits its sphere of operation to the offences listed in Part IV of the Act i.e. Sections 14, 15, 16, 17 and 18 and those contemplated under Sections 6,
12
7, 27(2), 32, 38 and 39 thereof. He submitted that the EFCC derives its prosecutorial powers from the Attorney-General of the Federation and not the Attorneys-General of the various States of the Federation. He submitted that unless expressly so empowered, the EFCC would be acting outside its jurisdictional boundaries and therefore ultra vires. He referred to PHMB Vs. Ejitagha (2000) 11 NWLR (Pt. 677) 154 @ 163, which quoted with approval the decision in Mayor etc. of Westminster Vs. London North Western Railway Co. (1905) AC 426 @ 430 on the importance of a public body invested with statutory powers acting within the limits of the authority bestowed on it.
Learned counsel referred to several often cited authorities on the fundamental nature of jurisdiction, the absence of which renders any proceedings a nullity.
He submitted that prosecutorial powers are akin to locus standi: He referred to the dictum of COKER, JSC in Onwuka Vs. The State (1970) 1 ALLNLR 159 @ 163.
He submitted that Section 211 (1) of the 1999 Constitution, as amended, makes the Attorney General of the State the exclusive authority
13
to initiate, institute or discontinue any criminal proceedings in the state unless he delegates that power to another. He referred to Section 174 of the Constitution, which confers similar powers on the Attorney General of the Federation in relation to Federal offences.
He submitted that the Attorney-General of Lagos State has the authority to delegate his prosecutorial powers to other agencies of government and private persons. He cited A.G Ogun State vs. A.G Federation (1982) 13 NSCC 1. He argued further that it is only the Attorney General or his delegates who can undertake the prosecution of offences under the State Law. He relied on the case of Anyebe vs. The State (1986) 1 SC 87 and Section 33 of the Interpretation Act Cap. 123 LFN, 2004.He asserted that a person purporting to act pursuant to a fiat must tender same in evidence. He submitted that a Court cannot presume its existence.
On the necessity to tender a fiat where it is alleged to exist, he referred to F.R.N vs. Adewunmi (2007) 10 NWLR (pt. 1042) 399 @ 425 D-E. He submitted that in Amadi vs. F.R.N (supra), the fiat in question as tendered and adited in evidence, which situation is
14
different from the instant case. He submitted that failure to tender the fiat from the Attorney General of Lagos State authorizing the EFCC to prosecute the charges under Sections 383 (1) and (2) (f), 386 and 390 of the Criminal Code of Lagos State is fatal to the prosecution’s case.
On the admonition to Courts not to speculate on documents or material not before them, he referred to Imo State IndependentElectoral Commission & Ors Vs Ehirim (2013) 3 NWLR (Pt. 1340) 169 @ 183D; R.Vs Wilcox (1961) NSCC 274 @ 276 -277. He submitted that contrary to the finding of the lower Court at pages 1440 -1441 of the record, Amadi’s case (supra) is not authority for the proposition that delegation of authority can be presumed. He submitted that such delegation is not a matter in respect of which the Court may take judicial notice under Section 122 of the Evidence Act, 2011.
He submitted that the tendering of the fiat is a condition precedent to the assumption of jurisdiction by the Court and that the failure to tender the fiat robbed the Court of jurisdiction to try counts 5 and 6. He concluded that the information before the Court was not initiated by due process.
15
With regards to the finding of the Court below that the appellant, having failed to raise objection to counts 5 & 6 of the information before pleading to the charge, had lost his right to complain at the conclusion of the prosecution’s case and at the stage of a no case submission, learned counsel submitted that the requirement in Section 167 of the Criminal Procedure Law of Lagos State to raise an objection to a charge immediately after the charge is read, is applicable only where the defect complained of is as to form and not where the defect touches on the substance of the charge or the jurisdiction of the Court, in which case the defect cannot be waived by the parties. He referred to: Obiuweubi vs. CBN (2011) 7 NWLR (Pt. 1247) 465 per Adekeye, JSC; APGA vs. Anyanwu (2014) 7 NWLR (Pt. 1407) 541 @ 548 H-B; Ukpong & Anor vs. Commissioner for finance & Economic Devt. & Anor. (2006) LPELR 3349 (SC). He maintained that the challenge to the Courts jurisdiction could be raised at any stage of the proceedings.
In reaction to the above submissions, learned counsel for the respondent submitted that the issue of
16
whether the EFCC could prosecute cases under the criminal code Law of Lagos state had been finally decided by this Court in the case of Amadi vs FRN (supra). He referred particularly to page 276 D – H.
Learned counsel noted that the power given to the EFCC to prosecute offences under the criminal code Law of Lagos State was reproduced at page 275 C – E of Amadi’s case (supra). He submitted that in the circumstances, it was not necessary to tender evidence of the delegation of power. He supported the position of the Court below that it was sufficient to cite Amadi’s case, which decision satisfies the requirement of Section 33 of the Interpretation Act. He contended further that the power of deregation given to the respondent is not the same as a fiat given to a private legal practitioner to prosecute a case on behalf of the Government. He submitted that the situation in this case is the delegation of power between two levels of government. He submitted that the decision in Amadi’s case is a binding precedent on all other Courts and the trial Court ought to have taken judicial notice of it.
17
In further submission on this point, learned counsel referred to the case of: Shema & Ors. Vs FRN (2018) 1 SC (Pt.1) 1 47 lines 5 – 15, where this Court examined the provisions of Section 211 of the 1999 Constitution and Sections 7 and 13 (1) of the EFCC Act in relation to the EFCC’s power to prosecute economic and financial crimes in Nigeria, to wit:
“To the extent of the above provisions of the law, it is our considered view that the lower Court applied the law correctly. The law evinces a clear intention that, with or without express delegation from the Attorney-General of Katsina State, the EFCC could validly prefer the present charges and prosecute the Appellants in the name of the Federal Republic of Nigeria as a common Agency of both the Attorney-General of the Federation and the Attorney-General of Katsina State. We agree with the respondent that a community reading of provisions of Sections 15(5) and 211 (1)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Sections 6 (m), 7(f), 13(2) (a) and (d) and 46 of the EFCC (Establishment) Act, 2004 and Section 185 (a) of the Criminal Procedure Code (CPC), Cap. 37 Laws of Katsina State, 1991 gives the EFCC power
18
to do what it sought to do by attempting to prosecute the appellants.” (Emphasis mine)
He referred to the concurring judgment of Galinje, JSC (now Galumje, JSC) at pages 91 – 92 of the record, which is to the effect that even without the fiat of the Attorney-General of Katsina State, the EFCC, as an agent of the Federal Government had the power to prosecute the appellants in the name of the Federal Republic of Nigeria before the Katsina State High Court for offences committed under the Penal Code of Katsina State.
He also referred to: Saraki Vs FRN (2016) 3 NWLR (Pt. 1500) 531 @ 627. He submitted that the law has moved away from the requirements that the Attorney-General of the Federation or the State must grant a fiat to the EFCC before it could prosecute economic and financial crimes. He referred to: Dariye Vs FRN (2015) 2 SC (Pt. 1) 120; Kalu Vs FRN 1- 3 SC (Pt.1) 162 and Nyame Vs FRN (2010) 3 SC (Pt.1) 8. He noted that learned counsel for the appellant has not invited this Court to depart from its earlier decisions on the issue.
On the issue of when to raise an objection to the EFCC’s authority to prosecute the appellant on counts 5 and
19
6, he submitted that it would be of no moment in any event because the issue has already been settled by this Court. He urged the Court to resolve the issue against the appellant.
The purport of the submissions of learned counsel for the appellant under this issue is that the production and tendering of a fiat issued by the Attorney-General of Lagos State to the Economic and Financial Crimes Commission to prosecute the appellant for offences under the Criminal Code Law of Lagos State is a condition precedent to the exercise of jurisdiction by the trial Court to try the appellant for those offences. This submission is derived from settled principles that govern jurisdiction, as stated in: Madukolu Vs Nkemdilim (1962) 2 SCNLR 341, to wit:
A Court is competent when:
a. it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or the other;
b. the subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
20
the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
It was also held per Bairamian, JSC that “any defect in competence is fatal, for the proceedings are a nullity, however well conducted and decided; the defect is extrinsic to the adjudication.” See also: A.G. Lagos State Vs Dosunmu (1989) 6 SC (Pt. II) 1.
If indeed there has been an omission to fulfill a condition precedent to the exercise of the Court’s jurisdiction, it would not matter at what stage of the proceedings the objection is raised, as the proceedings would be a nullity. Jurisdiction is a threshold issue. This is why it has been held severally by this Court that an objection to the Court’s jurisdiction can be raised at any stage of the proceedings and even for the first time on appeal to the Supreme Court. See: Petrojessica Ent. Ltd. Vs Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675; Elabanjo Vs Dawodu (2006) 15 NWLR (Pt. 1001) 76; Nwankwo & Ors. Vs Yar’adua (2010) 12 NWLR {Pt. 1209) 518.
However, where the defect complained of is procedural, the complaint must be made timeously otherwise the party complaining would be deemed to have
21
acquiesced in the irregularity and waived his right to complain. See:Madukolu Vs Nkemdilim (supra); Duke Vs Akpabuyo L.G. (2005) 19 NWLR (Pt. 959) 130; Saude Vs Abdullahi (1989) 4 NWLR (Pt. 116) 387; Okoye Vs The State (1972) ANLR 938.
The first issue to consider is the extent of the power of the Attorney General of the Federation or of a State to undertake criminal prosecution. Section 174 of the Constitution of the Federal Republic of Nigeria, 1999 provides as follows:
“174. (1) The Attorney-General of the Federation shall have power –
(a) to institute and undertake criminal proceedings against any person before any Court of law in Nigeria, other than a Court-martial, in respect of any offence created by or under any Act of the National Assembly;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceeding instituted or undertaken by him or any other authority or person.
(2) The powers conferred upon the Attorney-General of the Federation under Subsection (1)
22
of this section may be exercised by him in person or through officers of his department.
(3) In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent the abuse of legal process.”
(Emphasis mine)
Section 211 of the Constitution makes similar provisions for the office of the Attorney-General of a State in relation to offences created by or under any law of the House of Assembly. Section 174 (1) (b) & (c), which refers to proceedings initiated by “any other authority or persons”, is a clear indication that the power of the Attorney-General, Federal or State, to institute criminal proceedings is not exclusive to his office. See: FRN Vs Adewunmi (2007) 4 SC (Pt. III) 30 at 42 – 43 & 53 – 54; Saraki Vs FRN (2016) 1 – 2 SC (Pt. V) 59 @ 105 lines 9 27; 167 lines 22-27.
In Amadi Vs FRN (2008) 12 SC (Pt. III) 55, this Court had cause to resolve an issue almost identical to the issue in contention in this appeal. In that case, an amended information was filed against the
23
appellant before the High Court of Lagos State in the name of the Federal Republic of Nigeria (FRN) for offences committed under the Advance Fee Fraud and Other Related Offences Act Cap. A6 Vol.1, LFN 2004 and under the Criminal Code Law of Lagos State Cap. C17 Laws of Lagos State, 2003. The appellant’s contention was that it is only the Attorney General of the State or an officer in his department to whom he had delegated his powers who could undertake criminal proceedings before any Court in Nigeria, other than a Court Martial, for offences created by or under any laws of the State House of Assembly.
The Attorney General of Lagos State had issued a fiat (Exhibit A) to the Chairman of the EFCC and the Attorney General of the Federation delegating his prosecutorial powers in relation to offences under the Criminal Code Law and Criminal Procedure Law of Lagos State to them. It was argued that the Federal Republic of Nigeria had no authority to prosecute him notwithstanding the fiat, as the delegation of power was addressed specifically to the Chairman of the EFCC and the Attorney General of the Federation. The contention was that the learned State counsel
24
who signed the information was neither the Chairman of the EFCC nor the Attorney General and it could therefore not be presumed that the delegation of authority applied to him.
In resolving the issue, this Court, per Mukhtar, JSC (as he then was), reproduced an excerpt of the fiat issued by the Attorney General of Lagos State at page 66 of the report thus:
“I therefore have his further instructions to inform you that in the spirit of our collective resolve to reverse the country’s negative image, he does formaly (sic) delegate his prosecutorial powers in relation to offences under the Criminal Code Law and Criminal Procedure Law of Lagos State to both the Attorney General of the Federation and the Economic and Financial Crimes Commission effective from the date of this letter.”
After considering the arguments of learned counsel on the validity or otherwise of the delegation of power vide Exhibit A, His Lordship endorsed the submission of learned counsel for the respondent to the effect that the use of the word “may” in Section 211 of the Constitution does not restrict the delegation of the Attorney General’s powers to only officers
25
in his department and furthermore, on the authority of Nafiu Rabiu Vs The State (1980) 8 – 11 SC (Reprint) 85; (1980) NSCC 291; State Vs Ilori (1983) NSCC 69 and Ibrahim & Anor. Vs The State (1986) 1 NSCC 231, the powers of an Attorney General under Sections 174 and 211 of the Constitution cannot be questioned by any Court. The fiat issued by the Attorney General of Lagos State was held to be valid.
At page 68 lines 9 – 32 (supra), the reasoning of the Court of Appeal was quoted with approval as follows:
“The position in criminal trial is different. In view of the high premium attached to speedy disposal of criminal cases, the Attorneys General of the States delegate their powers to the various States Commissioners of Police who institute and prosecute criminal matters in the name of the Commissioners of Police. Such powers are also delegated to the Federal Board of Internal Revenue, Nigeria Customs Service and lately EFCC by the Attorney General of the Federation. This arrangement is made possible subject to the provision of Sections 174 (1) (b), (c) and 211 (1) (b), (c) of the Constitution of the
26
Federal Republic of Nigeria, 1999, which provide that the Attorney General of the Federation or State, as the case may be, shall have power to take over and continue any such criminal proceedings instituted by any other authority or person, and to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by any other authority or person.” (Underlining by His Lordship)
By virtue of Section 168 (1) of the Evidence Act, 2011, there is a presumption of regularity in favour of any official act carried out by the Attorney General. It follows therefore, that in the absence of proof that the said fiat has been expressly revoked by the Attorney General of Lagos State, the authority delegated to the EFCC to prosecute offences under the Criminal Code Law of Lagos State remains sacrosanct and cannot be questioned by any Court.
The authority of the EFCC to prosecute offenders in the name of the Federal Republic of Nigeria for offences constituting financial crimes committed under the Criminal Code or the Penal Code was further acknowledged by this Court in its recent decision in: Shema Vs FRN (2018) 1 SC (Pt.1) 1 @ 38 – 39, where it was held, inter alia, per Bage, JSC:
27
“… I wish to reiterate the well settled position of this Court in Nyame Vs FRN (2010) 3 SC (Pt.1) 78.
In this case, this Court indicated and very clearly, that there is nothing here that prevents the EFCC from prosecuting offenders in the name of the “Federal Republic of Nigeria” being the agency responsible for co-ordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in the Federal Republic of Nigeria by virtue of Section 1 (2) (c) of the EFCC Act.
The effect of our clear and [un]ambiguous stance in Nyame Vs FRN (supra) and which we have no reason to depart from, is that the commission (the EFCC) is the coordinating agency for the enforcement of the provisions of any other law or regulation on economic and financial crimes, including the criminal code and the penal code. The Commission has power under Section 13 (2) of the Act to prosecute offences so long as they are financial crimes.” (Emphasis mine)
28
The decisions of this Court in Amadi Vs FRN (supra) and Shema Vs FRN (supra) constitute a complete answer to the first issue for determination in this appeal. The presumption, which has not been rebutted, is that the EFCC has the requisite authority, donated by the Attorney General of Lagos State, to prosecute the appellant for offences allegedly committed under the Criminal Code Law of Lagos State. The authority cannot be questioned. As rightly held by the lower Court, this Court has taken judicial notice of the fact of the delegation, which is binding on all.
On the appropriate stage to raise an objection of this nature, this Court in Amadi’s case (supra) relying on Section 167 of the Criminal Code Law, held that it amounts to an objection to a defect on the face of the charge, which ought to have been raised immediately after the charge was read. In other words, it is a procedural issue that does not affect the jurisdiction of the Court to hear the case. I am guided by that decision in this case.
This issue is accordingly resolved against the appellant.
ISSUE 2
In support of issue 2, which deals with the finding that the prosecution established a prima facie case in respect of counts 5 and 6,
29
learned counsel for the appellant submitted that the offences comprised in those counts are not capable of being committed in the con of the facts before the Court. He contended that the sums alleged to have been stolen or converted are not capable of being stolen or converted. He submitted that there is no evidence to support the charge that Donatus Dunu entrusted the money to the appellant and Chyfrank Nig. Plc. and that they stole or converted it. He referred to: Adeyemi Vs The State (1991) 6 NWLR (Pt.195) 1. He referred to the ingredients of the offence of stealing as provided for in Section 383 (1) and (2) of the Criminal Code and submitted that to establish a prima facie case, all the elements of the offence must be present and the Court is not entitled to rely on any extraneous occurrence not contemplated at the time the offence was allegedly committed.
He contended that the crime of stealing by conversion aims to protect the proprietary rights of the victim or owner of the property and therefore can only be sustained by the existence of a clear and identifiable owner of the alleged stolen property. He referred to:
30
Adejobi & Anor. Vs The State (2011) 12 NWLR (Pt. 1261) 347; Oyebanji Vs The State (2015) LPELR-24751 (SC). He contended that the crime of stealing cannot be established where the alleged owner totally disclaims ownership or interest in the property. He submitted that although counts 5 and 6 alleged that the money stolen belonged to Donatus Dunu, the evidence led tends to show that the money belonged to (or was intended for) Alhaji Abubakar Mallam (PW4). He noted that since PW4 testified that he neither applied for nor owned No. 7 Bell Avenue, and that he did not authorize anyone to sell it for him, the sums alleged to have been stolen neither belonged to Donatus Dunu nor Alhaji Abubakar Mallam and therefore there was no identifiable owner.
He submitted that there was evidence before the trial Court that Donatus Dunu (PW3) voluntarily paid the alleged sums into the account of the 2nd accused, Chyfrank Nig. Plc. after the terms of the contract of sale were agreed upon. In other words, there was an element of consent in the transaction between the appellant and PW3. He submitted, relying on the case of Smart Vs The State (1974) 1 SC 173, that where the parting with
31
possession of the property in issue (money in this case) is voluntary, the offence of stealing would not be made out. He also contended that there was no evidence of mens rea on the part of the appellant, as the transaction was concluded and PW3 got value for his money. He submitted that the cancellation of the sale of the houses by the Federal Government was an unforeseen event and that such unforeseen event, after the consummation of a legitimate transaction, cannot convert it into a crime. He referred to Section 33 (B) of the 1999 Constitution.
With regard to stealing by conversion, he submitted that the initial consent of the owner in parting with possession is presumed but that the owner in parting with possession must not have also parted with the property in the thing stolen. He submitted that in this case PW3 voluntarily parted with both possession and property by issuing the bank drafts in favour of chyfrank Nig. Plc., and that the subsequent cancellation of the sale by the Federal Government could not revive his property in the monies. He argued that whether or not PW3 is entitled to a refund of the monies is a matter of contract and a question
32
for the civil Courts. He submitted that the lower Court, having upheld the finding of the trial Court that the offence of obtaining by false pretences was not made out, erred in sustaining the charge of stealing by conversion since stealing and obtaining by false pretences both contain an element of fraud.
In response, learned counsel for the respondent referred to the essential elements required to prove stealing by fraudulent conversion as charged in counts 5 and 6, to wit:
- Ownership of the thing stolen.
- That thing stolen is capable of being stolen.
3.That the accused person has the intention of permanently depriving the owner of the thing stolen.
- That the accused was dishonest.
- That the accused unlawfully appropriated the thing stolen to his own use.
He relied on: Babalola Vs The State (1989) 4 NWLR (Pt. 115) 264; Onwudiwe Vs FRN (2006) 10 NWLR (Pt. 988) 382; Adejobi Vs The State (2011) 12 NWLR (Pt. 1261) 347; Oyebanji Vs The State (2015) LPELR-24751 (SC).
On the ownership of the money allegedly converted, he submitted that the respondent led oral and documentary evidence to show that the
33
money paid into Chyfrank’s account by PW3 and withdrawn by the appellant, was intended for Alhaji Abubakar Mallam and remained the property of PW3 until it was paid to the said Alhaji Abubakar Mallam. He submitted that in the circumstances of this case, ownership of the money did not pass to the person who converted it. He relied on: Adewusi Vs The Queen (1963) NSCC Vol. 3 254; Onwudiwe Vs FRN (supra). He also maintained that the sum of money withdrawn by the appellant and paid to the Federal Government Implementation Committee for the purchase of the property at No. 22 Thompson Avenue, Ikoyi, Lagos, constituted property capable of being stolen.
He submitted that the intention of permanently depriving the owner of the thing stolen was evident in the fact that when pressed for proof of his authority to sell the property at No. 7 Bell Avenue, the appellant produced a power of attorney purportedly executed in his favour by Alhaji Abubakar MaIlam and it was on this basis that the sum of N102,400,000.00 was paid into Chyfrank Nig. Plc’s account for onward transmission to the said Alhaji. That the prosecution tendered evidence to show that the appellant is
34
the alter ego of Chyfrank Nig. Plc., and sole signatory of its account. That the representation made via the power of attorney and the subsequent withdrawal of N86,900,000.00 and N7,900,000.00 out of the N102,400,000.00, which was used to pay for the property at No.22 Thompson Avenue, Ikoyi, evinced an intention to permanently deprive PW3 of his money. He submitted, relying on R V. Shadrokh-Cigari (1988) Crim. L.RI 465 and Sagoe Vs Queen (1963) 2 SCNLR 210, that it is a settled principle of law that once a person represents to another that he is acting on behalf of a third party and collects money on behalf of the third party, he becomes a trustee to the person paying the money.
He submitted further, that deception, mistake of fact, fraud and misrepresentation vitiate consent. See: R V. Shadrokh-Cigari (supra).
He submitted that contrary to the submission of learned counsel for the appellant, there is a distinction between the type of fraud required to prove the offence of obtaining by false pretences and the type of fraud that would ground a conviction for stealing. He submitted that there are instances where a person has been convicted of stealing
35
but discharged and acquitted for obtaining money by false pretences. He referred to: Babalola Vs The State (supra) and Oyebanji Vs The State (supra); R V. Carpenter (1911) 22 Cox CC 618 @ 624.
He argued that the evidence on record shows that PW3 was deceived into paying the sums stated in counts 5 and 6 into the account of Chyfrank Nig. Plc., and that consent given as a result of such deception is no consent. He referred to: R V. William (1953) 1 QB 660.
With regard to the submission that PW3 got value for his money and would not have complained if the sale had not been cancelled, learned counsel submitted that the offences in counts 5 and 6 had been consummated before the cancellation. He submitted that it was the cancellation of the sale that exposed the offence. He submitted that the cancellation by the Federal Government did not alter the fact that the appellant represented to PW3 that he was acting on behalf of Alhaji Abubakar Mallam and that he had his authority to sell the property on his behalf.
He submitted that the appellant had the mens rea to commit the offence because at all material times he knew he was not acting on behalf of
36
Alhaji Abubakar Mallam and had no intention of paying the sum of N102,400,000.00 to him. He submitted that the evidence showed that he intended to convert and did in fact convert the money to his own use. That the lower Court was right in holding that a prima fade case had been made out to warrant an explanation from the appellant.
Section 286 of the Criminal Procedure Law of Lagos State provides:
“286. If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence, the Court shall, as to that particular charge, discharge him.”
The purport of a no case submission is that, in law, there is no evidence on which, even if believed, the Court could convict. See: Ibeziako Vs C.O.P. (1963) 1 All NLR 61; Ajidagba Vs I.G.P. (1958) 3 FSC 5;, Tongo Vs C.O.P. (2007) 12 NWLR (Pt. 1049) 525; Fagoriola Vs FRN (2013) 17 NWLR (Pt. 1383) 322.
The question whether or not the evidence is believed is immaterial and does not arise. Furthermore, the credibility of the witnesses is not in issue.
37
It is also important to note that at the stage of a no case submission the Court is not required to express an opinion on the evidence before it. The reason is that at that stage, the trial has not been concluded. See: Adeyemi Vs The State (1991) 6 NWLR (Pt. 195) 1; Agbo Vs The State (2013) 11 NWLR (Pt. 1365) 377; Igabele Vs The State (2006) 6 NWLR (Pt. 976) 100; Aituma Vs The State (2007) 5 NWLR (Pt. 1028) 466.
A submission that the accused has no case to answer will succeed in the following circumstances:
a. Where the prosecution fails to prove an essential element of the offence;
b. Where the evidence led by the prosecution has been so discredited as a result of cross-examination, or is so manifestly unreliable that no reasonable tribunal would safely convict on it.
See: Ajiboye Vs The State (1995) 8 NWLR (Pt. 414) 406 @ 414 – 415; Daboh Vs The State (1977) 5 SC 197 @ 209; Tongo Vs C.O.P. (supra); Ajuluchukwu Vs The State (2014) 13 NWLR (Pt. 1425) 641; C.O.P. Vs Amuta (2017) LPELR- 41386 (SC) @ 28 – 29 G – F.
38
In counts 5 and 6 of the information, the appellant is charged with stealing by fraudulent conversion contrary to Section 383 (2) (f), 385 and 390 of the Criminal Code Law of Lagos State, Cap. C17 Laws of Lagos State of Nigeria. Section 383 (1) and (2) (f) 385 and 390 of the Law provide:
“383 (1) A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing.
(2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents:
(f) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.
- When a person receives, either alone or jointly with another person, any money or valuable security or a power of attorney for the sale, mortgage, pledge, or other disposition, of any property, whether capable of being stolen or not, with a direction in either case that such money or any part thereof, or any other money received in exchange for it, or any part thereof, or the proceeds, or
39
any part of the proceeds of such security, or of such mortgage, pledge, or other disposition, shall be applied to any purpose or paid to any person specified in the direction, such money and proceeds are deemed to be the property of the person from whom the money, security, or power of attorney, was received until the direction has been complied with.
Provided that if the person receiving the money, security, or power of attorney, and the person from whom he receives it, ordinarily deal with each other on such terms that in the absence of any special direction all money paid to the former on account of the latter would be properly treated as an item in a debtor and creditor account between them, the former cannot be charged with stealing the money or any such proceeds unless the direction is in writing.
- Any person who steals anything capable of being stolen is guilty of a felony, and is liable, if no other punishment is provided, to imprisonment for three years.”
It has been held that in the case of conversion, it is immaterial whether the thing converted is taken for the purpose of conversion or whether it is at the time of the
40
conversion in the possession of the person who converts it. It is also immaterial that the person who converts the property is the holder of a power of attorney for the disposition of it, or is authorised to dispose of the property. See: Oyebanji Vs The State (2015) LPELR-24751 (SC) @ 16 – 17 A – B; (2015) 14 NWLR (Pt. 1479) 270; Kenneth Clark & Anor. Vs The State (1986) 4 NWLR (Pt. 35) 381; Mohammed Vs The State (2000) FWLR (Pt. 30) 2623 @ 2626; Ayeni Vs The State (2016) LPELR- 40105 (SC) @ 26 B – E.
The ingredients of the offence of stealing are:
(i) Ownership of the thing stolen;
(ii) That the thing stolen is capable of being stolen;
(iii) The fraudulent taking or conversion.
See: Adejobi Vs The State (2011) 12 NWLR (Pt. 1261) 347; Oshinye Vs C.O.P. (1960) 5 SC 105; Ayeni Vs The State (supra).
It cannot be disputed that the sums of N86,900,000.00 and N7,900,000.00 referred to in counts 5 and 6 are capable of being stolen. The evidence led by the prosecution also showed that out of the sum of N102,400,000.00 paid by PW3, Donatus Dunu, to Chyfrank Nig. Plc. purportedly for the purchase of No. 7 Bell Avenue on
41
behalf of Alhaji Abubakar Mallam, the appellant, who is the alter ego of Chyfrank Nig. Plc., withdrew the sums stated in counts 5 and 6, paid same to the Federal Government Implementation Committee and purchased on his own behalf House No. 22 Thompson Avenue, Ikoyi, Lagos. The long and the short of the evidence led by the prosecution is that the appellant converted the money received from PW3 for a particular purpose to his own use. PW3’s money never reached its intended destination.
There was prima facie evidence that as far as counts 5 and 6 are concerned, there was an intention by the appellant to use the money collected from PW3 for his own use. PW4, Alhaji Abubakar Mallam, in whose name the sum of N102,400,000.00 was collected testified that he knew nothing about the transaction. In his statement, Exhibit 52, tendered by the prosecution, the appellant admitted that he did not know Alhaji Abubakar Mallam. There is thus prima face evidence of a fraudulent intent.
Learned counsel for the appellant made copious submissions on whether or not P W3 could still be held to be the owner of the sums of money allegedly converted,
42
having in his view, voluntarily parted with it to Chyfrank Nig. Ltd. Learned counsel for the respondent also made extensive submissions contending otherwise. It is my considered view that the submissions are not apposite at this stage. All that the Court is required to do when a no case submission is made is to determine whether the evidence adduced by the prosecution is sufficient to warrant an explanation from the accused person.
The Court below carefully examined the evidence on record and rightly, in my view, concluded that a prima facie case has been made out in respect of counts 5 and 6 of the information sufficient to warrant the appellant being called upon to make his defence thereto. The appellant has not persuaded me to interfere with the sound reasoning of the Court below. This issue is accordingly resolved against the appellant.
In conclusion, the appeal lacks merit. It is accordingly dismissed. The judgment of the lower Court remitting the case to the Chief Judge of Lagos State for assignment to another Judge of the High Court for trial on counts 5 and 6 is hereby affirmed.
SC.567/2016
