James Onanefe Ibori & Anor V. Federal Republic of Nigeria Ors (2008)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

The Appellants and the three Respondents/Accused Persons, who are limited liability companies, were arraigned before the Federal High Court, Kaduna on the 13th of December, 2007. They pleaded not guilty to 103-count charges of corrupt enrichment, money laundering, etc., leveled against them. They later pleaded not guilty to 129-count Amended Charges on the 11th of January, 2008. After the 1st and 2nd Appellants were admitted to bail on the 11th of February, 2008, the lower Court adjourned the matter to the 18th of February, 2008, for hearing.

However, before the commencement of trial, the Appellants filed an application dated 18th February, 2008, praying for the following Orders-

“(1) An Order transferring this matter to the Chief Judge of the Federal High Court for onward transfer and assignment to the Judicial Division where the 129 counts in this Charge were allegedly committed on the ground continuing with the trial in Kaduna is;

(i) Contrary to the provisions of the Federal High Court,

(ii) Grossly violates the Applicants’ right to fair hearing, particularly the right and opportunity to adequately prepare their defence to the 129 counts made against them.

(iii) Kaduna is a forum non convenient chosen by the EFCC for reasons of forum shopping.

(2) An order that the presiding Judge Hon. M. L. Shuaibu J recuse himself from further participation in the above trial on the ground that the infringements disclosed in (1) constitute sufficient likelihood of bias.

The Application is supported by a 20-paragraph Affidavit deposed to by the 1st Appellant and a 2 -paragraph Affidavit deposed by the 2nd Appellant, wherein they both averred that they were arrested by Officials of the Economic and Financial Crimes Commission [EFCC] on the 12th of December, 2007 accused of committing an offence within the jurisdiction of the Federal High Court, Kaduna, “in relation to certain amount of money, property of Delta State, which is alleged to have been transferred to a 3rd party for the benefit of the accused persons and which have been labeled ‘proceeds-of crime”‘. Furthermore, that none of the allegations have any connection with Kaduna and the alleged offences, properties, Bank accounts, documents, evidence and witnesses are not in Kaduna; that the EFCC filed the charges directly without following due process as required by the Federal High Court Act; and that the entire allegation is woven around legitimate expenditures of the Delta State Government. They both further averred as follows –

“That the said expenditures are justified by Government approvals and there exists a massive collection of documents needed to effectively defend either through cross examination and/or through my defence most of which were not adverted to by the Prosecution in the three volumes referred to above for obvious reasons and these documents include my personal record and various documents for which certified copies will be sought from several banks, underwriting agencies, stockbrokers, travel agencies, airline manifests, Delta State Government, Federal government of Nigeria etc include vouchers, approvals, minutes, gazettes, Executive Council Minutes, Security Council Minutes, House of Assembly Motions, executive mandates, authority to release expenditures mandates and other relevant government instruments- – (The 1st Appellant’s paragraph 12 and the 2nd Appellant’s paragraph 13)

“That it is both impracticable and impossible to gather these vital materials for my defence within one week for a variety of reasons-

(i) That my health suffered grievously while in prison and I am only now seeking appropriate medical attention.

(ii) That it is not possible to fully brief my legal team led by Mr. J.B Daudu SAN until I have fully recovered my health.

(iii) That I am aware that the 1999 Constitution guarantees that I should be given adequate time and facilities to prepare my defence.

(iv) That 7 days after release from the long incarceration I suffered is not adequate time for me to prepare my defence”. (1st Appellant’s paragraph 14 and 2nd Appellant’s paragraph 15)

“That the venue of the trial; Kaduna is inconvenient for me to prepare my defence as most of my witnesses (200 for the 1st Appellant and 50 for the 2nd Appellant) are public servants in Delta state and moving them a distance of over 700 Kilometers for the purpose of giving evidence will entail untold and unprecedented hardship:

(i) In that I do not have the funds to move such a large number of witnesses from one end of the country to the other.

(ii) That it will be risky to move such quantity of documentary exhibits from one end of the country to the other.

(iii) That great doubt exists whether the present administration of Delta State would willingly permit the movement of her sensitive documents across such a vast distance.

(iv) That I cannot afford to move over (200 witnesses for 1st Appellants and 50 witnesses for the 2nd Appellant) who are willing to testify in my defence subject to the provision of basic logistics such as transport and accommodation because of the unbearable expenditure involved—

(v) That there are several divisions of the Federal High Court in and proximate to Delta state and the insistence of the EFCC to try me in Kaduna raises a presumption that they are looking for a favourable forum to prosecute.

(vi) That my fundamental rights will be totally and comprehensively violated if this trial continues at the Federal High Court, Kaduna before the Hon. M. L. Shuaibu, J.

(vii) That I desire to defend myself of these allegations made against me so require adequate opportunity and a level playing field for this purpose. (1st Appellant’s paragraph 15 and 2nd Appellant’s paragraph 16)

“That it will be in the overall interest of justice if this matter is transferred by the Chief Judge of the Federal High Court to a judicial Division of the Federal High Court proximate to Delta State. (1st Appellant’s paragraph 18 and 2nd Appellant’s paragraph 19)

“That modern principles of justice is to bring the latter; justice closer to the people and not to remove it to a very distant place. (1st Appellant’s paragraph 19 and 2nd Appellant’s paragraph 20) (Highlights mine)

In opposing the Application, the Respondent/Complainant (hereinafter referred to as the Respondent) filed a 33-paragraph Counter Affidavit deposed to by one Bello Yahaya, a Superintendent of Police attached to the EFCC, wherein it was averred as follows in paragraphs 15 to 25 –

15.That on each of the dates, when the matter came up before this Honourable Court, hundreds of Applicants’ supporters came to the Court from Delta State and other parts of the country.

16.That the newspapers reported how the Applicants’ supporters bussed into Kaduna from Delta State and how they came to the Court in large numbers – –

17.That the 1st and 2nd Accused/ Applicants have been sponsoring and financing the transportation of hundreds of their supporters from Delta State and other parts of the country to Kaduna on the successive dates of adjournment

18.That Senior Officials of Delta State Government Including Commissioners, both past and present have been coming to Court with the supporters of the 1st Accused/Applicants in large numbers on every adjourned dates.

19. That I know – – that there is no Federal High Court sitting in Delta State.
20. That the supporters of the 1st and 2nd Accused/Applicants have been showing violent disposition Doth- in Court and outside the Court premises thereby endangering the lives of both the Prosecution and the proposed prosecution witnesses.
21. That the 1st -and Accused/Applicants’ supporters attacked the Prosecution counsel and pulled down the wall of the Court premises on 17th December, 2007 when the oral application for bail was refused.
22. That since then, the 1st and 2nd Accused/Applicants’ supporters have been showing violent disposition in the Court premises by singing war songs and uttering unprintable words against prosecution counsel and the Court.
23. That investigation conducted by my team in conjunction with other security agencies in Delta and other neighbouring States revealed that the 1st Accused/Applicant has a squad comprising militant young men in the Niger Delta.
24. That on each adjourned dates, not less than five hundred anti-riot Policemen are usually deployed to quell the hostility of the 1st and 2nd Accused/Applicants’ supporters’
25. That in view of the foregoing, it would be dangerous to conduct the trial of the Accused/persons in Delta State or any other States close to their area of influence. (Highlights mine)

The deponent, Bello Yahaya, further averred as follows in paragraph 28- “That I was informed by Rotimi Jacobs Esq., the lead Prosecution Counsel on 28th February, 2008 – – and I verily believe him as follows –

(a) That this Honourable Court has the jurisdiction to try the 1st and 2nd Accused/Applicants for the offences alleged against them.

(b) That it is not for an accused person to dictate or choose the venue for his trial.

(c) That this Application is brought mala fide with the intention to frustrate the order of accelerated hearing made by this Honourable Court.

Both Appellants filed similar Replies of 17-paragraphs, wherein they denied most of the averments in the Respondent’s Counter Affidavit. The Application was argued on the 5th of March, 2008, and in his Ruling dated 10th March, 2008, the learned trial Judge, Shuaibu, J., held that the Federal High Court, Kaduna, is the proper venue for the trial and that the charges against the Appellants were validly filed in the Court. Dissatisfied with the decision, the Appellants appealed to this Court with Notices of Appeal containing six Grounds of Appeal each, and in the

Appellants’ brief of argument settled by J.B Daudu, SAN, it was submitted that the following Issues for Determination arise therefrom –

1. Whether the provisions of Section 45 of the Federal High Court Act read along with Section 19 of the same Act which prescribe as a condition precedent to the exercise of the Federal High Court’s jurisdiction in criminal matters that trials shall be initiated in the judicial divisions where the offences are alleged to have been committed are subordinated to and do not derogate from the general jurisdiction of the FHC to try certain criminal matters as provided for in section 249-352 of the 1999 Constitution?
2. Whether the initiation of criminal proceedings in Kaduna hundreds of kilometers away from the venue of the alleged offences and the special choice by the Prosecution of the judex will not or has not impaired the Accused Persons’ constitutional right to be tried by an independent and impartial Tribunal or court and in addition thrown into jeopardy their fundamental right to adequate facilities and time for the preparation of their defence?
3. Whether the act of the Prosecution in directly filing the 170 court charge in the FHC Kaduna in contravention of the provisions of Sections 19 and 45 of the FHC Act amounts to forum shopping capable of being viewed by reasonable persons as occasioning a strong likelihood of bias on the part of the learned trial judge Hon. Shuaibu, J?
4. Where the Court of Appeal resolves the above issues against the Prosecution and in favour of the Appellants what is the appropriate consequential order to make and whether the subsequent proceeding of amending the charge after the Ruling was read is not void?

The Respondent initially raised an objection to the competency of the appeal in its own brief prepared by Rotimi Jacobs, Esq., however, Mr. Jacobs withdrew the objection at the hearing of this appeal and it is accordingly struck out. Nonetheless, the Respondent formulated two Issues that it submitted calls for determination in this appeal, that is –

1. Whether the Federal High Court sitting in Kaduna is not competent to hear and determine the offences of money laundering preferred in Charge No. FHC/KD/81/2007 against the Appellants on the ground that the alleged offences were not committed within Kaduna Judicial Division.
2. Whether the learned trial judge was wrong to have held that a likelihood of bias to justify his refusal from the matter was not established by the Appellants.

It is my view however, that apart from the Appellants’ Issue 4 on the consequential order to make all the other issues are easily subsumed into – whether the Federal High Court, Kaduna, is the right forum to try the Appellants for offences allegedly committed in Delta State, and concerning money/property belonging to the Delta State Government.

The Appellants’ position is that Sections 19 and 45 of the Federal High Court Act read together mandatorily places the venue of their trial in the Federal High Court exercising jurisdiction in the area or place where the offences alleged against them were allegedly committed.

However, the Respondent’s stance is that there is only one Federal High Court in Nigeria, and an action filed in a particular Division of the said Court cannot strip it of jurisdiction to try the case. In agreeing with the Respondent the learned trial judge held as follows on this Issue –

“- – Section 19 (1) of the Federal High Court Act – emphatically states that the Court shall have and exercise jurisdiction throughout the Federation. Also, the provision of Section 249 of the 1999 Constitution established one Federal High Court. — Thus, a community reading of Sections 19 and 45 of the Federal High cout Act does not take away the jurisdiction of the Federal High Court irrespective of where it is sitting. The Court of Appeal decision in Abiola V. Federal Republic of Nigeria (1995) 3 NWLR (Pt.382) 203 per JCA Opene aptly stated the position – – as follows:

“As there is one Federal High Court, it follows that the jurisdiction of the Court extends throughout the whole country.”

And even if the provision of Sections 19 and 45 of the Federal High Court Act are meant to limit the venue of the trial in this Court to an area or place where the offence is allegedly committed, which is not the correct position, such cannot still be the case on the strength of the unequivocal positions of Section 19 of the Money laundering (prohibition) Act Also, the said Section 19 and 45 of the Federal High Court Act cannot derogate from the provisions of the Sections 249 to 252 of the 1999 Constitution”. (Highlights mine). The Appellants argued that the lower Court erred in relying on Section 249 of the 1999 constitution, which prescribes the general jurisdiction of the Federal High Court to justify the assertion of jurisdiction in Kaduna; that the Court’s duty is to interpret the clear provisions of the Act by giving them their ordinary interpretation; and that it is not its function to sympathize with a party in the interpretation of a statute merely because the language of the statute is harsh or will cause hardship, citing Kraus Thompson Org v. NIPSS (2004) 17 NWLR (Pt. 901) 44.

It was further argued that the literal and ordinary interpretation of Sections 19 and 45 of the Federal High Court Act, which the learned trial Judge agreed with, is that offences shall be tried in the judicial divisions where they are alleged to have occurred and that as far as distribution of business, whether civil or criminal, is concerned the -power to distribute them is vested exclusively in the Chief Judge of the Federal High Court, who is empowered to act through administrative Judges appointed for the judicial division. Consequently, that reading both statutory provisions together, the charges ought to have been instituted in the judicial division where the offences were allegedly committed.

In arguing that the lower Court was right to hold as it did, the Respondent made copious reference to the case of Abiola V. FRN (supra), and it was submitted that by the doctrine of stare decisis, it would be wrong for the lower Court not to apply the decision of this Court in that case; that the arguments and laws considered therein are the same ones considered by the lower Court in this case; that lower Courts have an obligation to follow the decisions of higher Courts, and it would amount to judicial impertinence for a lower Court to refuse to follow the decision of a higher court, thus the lower Court was perfectly in order to have followed the decision of this Court in Abiola’s case.

The Appellants however submitted in their Reply brief that the Respondent’s argument that the lower Court was bound by the decision in Abiola V. FRN (supra), “is based essentially on a misunderstanding of the decision in that case and an attempt to contort the facts of this case to fit into the decision in the ABIOLA CASE” and that the facts and circumstances of that case are clearly different from this case, so the principles of law to be applied in both cases cannot be the same.

Furthermore, that the 1st Respondent’s arguments creates the wrong impression that the Section 45 of the Act is otiose and without meaning or importance; and that the delimiting of the territorial jurisdiction of each Court is for the better administration of justice and cannot be circumvented without just cause, but taking them “from Delta State to Kaduna, bypassing several Federal High Courts in Benin, Akure, Enugu, Port-Harcourt, Minna and Abuja and heading straight to Kaduna cannot be considered to be in the best interest of the administration of justice”,

To resolve this issue, we will have to look closely at the reasoning of the lower Court, bearing in mind that there is a distinction between judicial powers and jurisdiction, which in turn is also of various types. Judicial Power constitutes the authority a Court has to adjudicate and decide any matter before it which is within its jurisdiction. Thus, a Court cannot exercise judicial powers on matters outside its jurisdiction. Jurisdiction, on the other hand, refers to “the authority a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision” – see Mobil Producing (Nig.) Unlimited V. LASEPA (2002) 18 NWLR (Pt. 798) 1. Jurisdiction may be territorial or substantive, inter alia. Substantive jurisdiction refers to matters over which the Court can adjudicate, and it is usually expressly provided by the Constitution or enabling statutes.

Territorial or geographical jurisdiction refers to the geographical area in which matters brought before the Courts for adjudication arose. Courts are usually not seized of matters that occur outside their territory. Thus, where ingredients of an offence occur outside the territorial jurisdiction of the Court asked to adjudicate over the matter, such a Court will not assume jurisdiction over the offence for apparent lack of jurisdiction. The Application in this case was brought pursuant to Sections 19 and 45 of the Federal High Court Act. Section 19 provides and follows –

1. The Court shall have and exercise jurisdiction throughout the Federation and for that purpose the whole area of the Federation shall be divided by the Chief Judge into such number of Judicial divisions or part thereof by such name as he may think fit.
2. For the more convenient dispatch of business, the Court may sit in any one or more Judicial division as the Chief Judge may direct, and he may also direct one or more Judges to sit in anyone or more off the Judicial division.
3. The Chief Judge shall determine the distribution of the business before the Court amongst the Judges thereof and may assign any judicial function to any Judge or judges or in respect of a particular cause or matter in a judicial division.
4. Subject to the directions of the Chief Judge of every Judge of the Court shall sit for the trial of civil and criminal causes or matters and for the disposal of other legal business the Chief Judge may think fit (Emphasis mine)

And Section 45 of the Federal High Court Act further provides as follows-

“Subject to the power of transfer contained in this Act, the place for the trial of offences shall be as follows.

(a) An offence shall be tried by a Court exercising jurisdiction in the area or place where-the offence was committed (Emphasis mine)

(b) When a person is accused of the commission of any offence by reason of anything which has been omitted to be done, and of any consequence which has ensued, such offence may be tried by a Court exercising jurisdiction in the area of place in which any such thing has been done or omitted to be done –

(c) When an act is an offence by reason of its relation to any other act which is also an offence, a charge of the first-mentioned offence may be tried by a Court exercising jurisdiction in the area or place either in which it happened, or in which the offence with which it was so connected happened; or

(d) When-

(i) It is uncertain in which of several areas or places an offence was committed or

(ii) An offence is committed partly in one area or place and partly in another; or

(iii) An offence is a continuing one and continues to be committed in more areas or places than one; or

(iv) An offence consists of several acts committed in different areas or places,

Such offence may be tried by a Court exercising jurisdiction in any of such areas or places) or

(e) An offence committed while the offender is in the course of performing a journey or voyage, may be tried by a Court in or into the area or place of whose jurisdiction the offender or person against whom or the thing in respect of Which the offence was committed resides, is or passed in the course of that journey or voyage.”

In its Ruling, the lower Court examined the reliefs sought, and after considering the Affidavit evidence and arguments of counsel, held that –

“- – The issue of designation is not borne out of the case of the Accused/Appellants and hence the Court is called upon only to determine the issue of venue and propriety or otherwise of filing the Charge directly in this Court The provision of Section 45 of the Federal High Court Act as well as Section 64 of the Criminal Procedure Act no doubt deals with the venue of the trial in which it provides that an offence will be tried by a Court exercising Jurisdiction in an area or a place where the offence was committed. Then the obvious question that follows is which Court exercises jurisdiction to try money laundering or other related matters in Delta State where the offences in the one hundred and twenty nine were allegedly committed? I have also in the course of this Ruling reproduced the relevant provisions of Section 19 (1) of the Federal High Court Act which emphatically states that the Court shall have and exercise jurisdiction throughout the Federation. Also the provision of Section 249 of the 1999 Constitution established one Federal High Court. The provision of Section 252 (2) of the Constitution also confers additional powers on the Federal High Court thus:-

“(2) Notwithstanding subsection one of this Section, the National Assembly may by law make provisions conferring upon the Federal High Court powers additional to those conferred by this Section as may appear necessary or desirable for enabling the Court more effectively to exercise its jurisdiction.

Thus, a community reading of Section 19 and 45 of the Federal High Court Act does not take away the jurisdiction of the Federal High Court irrespective of where it is sitting. And even if the provisions of Sections 19 and 45 of the Federal High Court Act are meant to limit the venue of the trial in this Court to an area or place where the offence is allegedly committed, which is not the correct position, such cannot still be the case on the strength of the unequivocal positions of Section 19 of the Money Laundering (Prohibition) Act – – “. (Highlights mine)

In other words, the lower Court assumed jurisdiction to hear the matter because there is only one Federal High Court and Section 19 of the Economic and Financial crimes Commission EFCC Act and Section 19 the Money Laundering (Prohibition) Act vests the Federal High Court with exclusive jurisdiction over cases of Economic and Financial Crimes, which includes money laundering. But that is wrong. The provisions of Section 19 and 45 of the Federal High Court Act have absolutely nothing to do with the provisions of the said Sections 19 of the EFCC Act and Money Laundering (Prohibition) Act; they deal with completely different aspects of the jurisdiction of the Federal High Court.

The EFCC Act established the Economic and Financial Crimes Commission [EFCC], which is “charged with the responsibility of coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in Nigeria”. Section 19 (1) of the Act reads as follows-

“The Federal High Court or High Court of the Federal Capital Territory has jurisdiction to try offenders under this Act”

Section 19 of the Money Laundering (Prohibition) Act also provides that “the Federal High Court shall have exclusive jurisdiction to try offences” under the Act. These are general provisions in the Acts of the National Assembly on the statutory or substantive jurisdiction of the Federal High Court; they subtract nothing from the provisions of the Federal High Court Act dealing with the geographical jurisdiction of its Divisions. Section 45 of the Federal High Court Act specifically provides that offences are to be tried by a Court exercising jurisdiction in the area or place where the offences were committed. In this case, the offences were allegedly committed in Delta State, and the Respondent filed the charges against the Appellant is directly in the Kaduna Division of the Federal High Court without going through the Chief Judge or any one.

There is nothing in the Respondent’s Counter Affidavit setting out the criteria used or reason for choosing the Federal High Court in Kaduna.

The Respondent merely averred as follows in paragraphs 19 to 25 –

19.That I know as a fact that there is no Federal High Court sitting in Delta State.

20.That the supporters of the 1st and 2nd Accused/Applicants have been showing violent disposition both in Court and outside the Court premises thereby endangering the lives of both the Prosecution and the proposed prosecution witnesses.

21. That the 1st and Accused/Applicants’ supporters attacked the Prosecution counsel and pulled down the wall of the Court premises on 17th December, 2007 when the oral application for bail was refused.

22.That since then, the 1st and 2nd Accused/Applicants’ supporters have been showing violent disposition in the Court premises by singing war songs and uttering unprintable words against prosecution counsel and the Court.

23.That investigation conducted by my team in conjunction with other security agencies in Delta and other neighbouring States revealed that the 1st Accused/ Applicant has a squad comprising militant young men in the Niger Delta.

24. That on each adjourned dates, not less than five hundred anti-riot Policemen are usually deployed to quell the hostility of the 1st and 2nd Accused/ Applicants’ supporters’
25. That in view of the foregoing, it would be dangerous to conduct the trial of the Accused/persons in Delta State or any other States close to their area of influence (Highlights mine)

The Appellants however averred as follows in paragraphs 6 to 8 of their respective Replies to the Respondent’s Counter Affidavit –

(6)That in respect of paragraph 19 of the Counter Affidavit, it is a matter of common knowledge that even though there is no Federal High Court in Delta State, there is such a Court with several Judges in Benin-City, Edo State, which serves Delta State.

(7)That paragraphs 20 – 23 of the Counter Affidavit is untrue as most of the demonstrators that I saw on those dates were those carrying placards prepared by the EFCC, which unjustly and unfairly painted me as a criminal or corrupt person.

(8) That the FGN has the resources as shown in paragraph 24 of the Counter Affidavit to provide security in any part of the Federal Republic of Nigeria. The Respondent conceded in its brief that the nearest Court to Delta State is the Benin Division of the Federal High Court, but without any explanation the Appellants were picked up and taken to Kaduna where they were arraigned over offences allegedly committed in Delta State.

The lower Court relied on the decision of this Court in Abiola V. FGN (supra), to justify the Respondent’s action in choosing its Court directly, but Abiola’s case is easily distinguishable from this one. To start with, the charges against Abiola related to treason, which is “the offence of attempting to overthrow the government of a State to which one owes allegiance, either by making war against the State or by materially supporting its enemies” – see Black’s Law Dictionary, 8th Ed. Treason, as the Appellants rightly submitted, therefore “relates to the entire country and can consequently be tried in Abuja which is the seat of Government”. This case, on the other hand, relates to offences of corrupt enrichment and money laundering, which were allegedly committed by the Appellants when the 1st Appellant was the Governor, of Delta State, and the charges are therefore localized to Delta State.

If the Respondent felt so strongly that it would not be safe for it to try the Appellants in the Benin Division of the Federal High Court, which oversees Delta State, then it should have taken the matter to the Chief Judge of the Federal High court for assignment to any other division. Filing the charges against the Appellants directly at the Kaduna Division of the Court for offences allegedly committed in Delta State, without recourse to the Chief Judge or any directive to that effect goes against the spirit and essence of the provisions of the Federal High Court Act, which vests the Chief Judge of the Federal High Court with the power to create and assign any judicial function to any Judge or Judges in a Judicial Division and which also stipulates that offences shall be tried in the judicial divisions where they are alleged to have been committed. The Appellants also complained that initiating criminal proceedings in Kaduna drastically abridged their fundamental right to fair hearing. They submitted as follows at page 17 of their brief-

It is a matter of great concern how the Appellants will transport their over 250 witnesses and volumes of documents, which appear to be relevant for their defence. The Prosecution’s answer is to say; well the Appellants are rich and can afford the cost of such defence anywhere in Nigeria. Assuming for a moment (though not conceded) that this is the correct position and that in reality the Appellants can afford to foot the cost of the unwholesome jamboree of ferrying witnesses from one end of the country to the other, has the Prosecution taken into consideration the state of mind of the civil servants who would undertake the journey? How can anyone guarantee the integrity of the mass of documentary exhibits, which are still in the custody of the Delta State Government and intended for use at the trial in the defence of the accused persons after such an unnecessary and arduous journey? The Prosecution in reality had no answer to these fundamental issues “.

On its part, the Respondent averred in paragraphs 26 (a) to (i) and paragraphs 27 (i) to (vi) of its Counter-Affidavit that after investigations carried out with the London Metropolitan Police, it found that the 1st Appellant has properties, monies and companies in Nigeria, England, South Africa, Switzerland, Panama, British Virgin Island and other Islands; and that the 2nd Appellant is also very wealthy with properties and money in Nigeria and the United Kingdom. It then argued in its brief that it is untenable for the Appellants to argue that Kaduna was not a proper forum for them to present their witnesses due to lack of funds, and that the provisions of the Criminal Procedure Act and Evidence Act are replete with provisions on how witnesses can be brought to Court.

Now, the right to fair hearing is a fundamental constitutional right guaranteed by the Constitution. Section 36 (1) provides as follows –

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

And Section 36 (6) (b) of the same Constitution also provides as follows-

“Every person who is charged with a criminal offence shall be entitled to –

(b) Be given adequate time and facilities for the preparation of his defence”.

Thus, an accused person is not only entitled to a fair hearing by an independent and impartial court, he or she must be given adequate time and facilities by that Court for the preparation of his or her defence.

The Appellants’ grouse is that it would be oppressive and injurious to their fundamental right to fair hearing to continue the trial in Kaduna. They referred this Court to Nwankwo V. State (1983) 1 NCR 366 where this Court deprecated in strong terms the attitude of the prosecution in looking for a favourable judex to prosecute a person, particularly the condemnation of Belgore JCA (as he then was), thus –

“- – It is true that one would normally frown at the procedure whereby the accused is based at Enugu &, the complainant is similarly based at Enugu, ‘the accused directly gave copies of the offensive publication to one of the witnesses, Emmanuel okala, at Enugu, the victims of the publication – the Government of Anambra – are based at Enugu, and presumably ‘the application for consent was made at Enugu, yet one finds the case being sent to a particular Court in Onitsha. It does not augur well for the independence of the judiciary to indulge in this practice. There are capable and eminent Judges in Enugu who who could have taken the case. – – In a democracy, the executive may falter, the legislature may overstep its bounds, it is the judiciary that holds the balance between two. It is the norm in Nigeria that once a person’s right seems threatened he says “I shall go to Court.” When one of the two arms starts choosing which Court to go to, and goes to one far away when many are at ‘his doorstep, the impartiality of the judiciary could be questioned. It beats my imagination how the case found its way from Enugu. With the attitude of the learned trial Judge to the preliminary objections on matters touching squarely on the foundations of the propriety of the procedure whereby the case was brought, and thus whether it was validly brought, I fear the Judge left much to be desired”, (Highlights mine) Olatawura JCA (as he then was) also stated as follows in that case-

“A lot of time was spent considering whether the Appellant had a fair hearing – – Where an accused can be easily tried in his place of residence and where nearly all the five witnesses reside in the same town, but he is made to travel about 100 km to answer a charge which carries a maximum punishment of two years’ imprisonment, he cannot be said to have a fair hearing. A fair hearing as postulated by the Attorney-General in his able submission on the point does not stop with the accused’s opportunity to cross-examine, give evidence and have a lawyer of his choice, but should include the opportunity to have the case against him heard in a place where the offence was committed, and not where jurisdiction is conferred by manipulations. – – The question whether there has been a fair hearing is one of substance and not form and must be decided in the light of he prevailing circumstances in a particular case. – – I will add that the Prosecution should never give the impression that they will always prefer to behave like a shopper who will naturally choose a seer whose market price is less'(Highlights mine)

In arguing that all the cases cited by the Appellants are not applicable to this case, the Respondent submitted that Nwankwo’s case (supra is easily distinguishable from this case for the following reasons-

(1) In Nwankwo’s case, the original application to prefer the charge was made to the Enugu division of the High Court and there was no order of Court or even administrative directive from the Chief Judge transferring the case to Onitsha Division where it was heard and decided. But in this case, the charges against the Appellants were meant to be filed and were actually led at the Kaduna Division of the Federal High Court.

(2)The provisions of the Federal High Court Act and the Criminal Procedure Act, that where were considered in this case, was not considered in that case.

(3)There was no provision in the High Court Law of Enugu State, which specifically vested the High Court of Onitsha presided over by Nwokedi J. with the jurisdiction to hear and determine the class of offences with which the Appellant in that case was charged. But in this case, by virtue of Section 19 (3) of the Federal High Court Act and Section 19 (3) of the EFCC (Establishment) Act 2004, the Chief judge of the Federal High Court can designate and has in fact designated the lower Court to hear and determine cases such as the one with which the Appellants herein are being charged

(4) In Nwankwo’s case, the comments by the learned Justices were mere obiter. In fact, the case was decided on the preliminary objection challenging the competence of the charge filed against the Appellant in that case which objection the lower Court glossed over.

Fair hearing envisages that both parties to a case must be given the opportunity of presenting their respective cases without let or hindrance from the beginning to the end – see Newswatch Comm. Ltd. V. Atta (2006) 12 NWLR (Pt. 993) 144 SC, where the Supreme Court added –

“–The primary duty of a judge in the adjudication of cases is to do justice to the parties without fear or favour. He or she should not be carried away by sentiment or undue adherence to legal technicality. He or she must be impartial, fair and just to both parties and because of the double sided nature of justice and fairness, the Judge must be even handed’. (Italics mine) In this case, the lower court held as follows on this issue –

“The law is settled that a Court of law cannot decline jurisdiction vested on it simply because of a complaint the unfriendliness of the environment of the trial of the accused person. Thus it is m view that a complaint of funds and risk of bringing witnesses from far and movement of documents cannot divest this Court of its jurisdiction to the alleged offences. And there is nothing placed before the Court, to conclusively suggest that the movement of witnesses and documents is hereby hindered”. (Highlights mine)

The lower Court appears to have missed the point entirely. The issue is not about the unfriendliness of the environment of the trial; it is about the inconvenience to the Appellants and the hardship entailed in moving over 250 witnesses and volumes of documents from Delta State, where the offences were allegedly committed, to Kaduna, 700 kilometers away. The Respondent argued that In Nwankwo’s case there was no order of Court or even administrative directive from the Chief Judge before the case was transferred from the Enugu Judicial Division of the High Court of Anambra State to the Onitsha Division where it was heard, but that is exactly what the Respondent did in this case. The High Court of a State is one Court but it has judicial divisions, same as the Federal High Court, which is one Court but with Judicial divisions. “It did not obtain an order of Court or even’ an administrative directive from the Chief Judge of Federal High Court before it bypassed the Benin Division of the Court, which oversees Delta State, and filed the charges relating to offences allegedly committed in Delta state directly at the Kaduna Division.

The Respondent also argued that in Nwankwo’s case learned Justices’ comments were obiter, meaning they were made “by the way” – that is, incidentally or collaterally, and not directly upon the question before the Court – see Black’s Law Dictionary: 7th Ed. But that is neither here nor there, even if the scathing remarks made by the learned Justices were obiter; it is the principles enunciated that counts. We are talking about fair hearing and the issue of fair hearing is one of substance and not form, this each case is decided on its own merits. The main thing is that that condemned a similar situation as in this case, where the EFCC hand picked a Court and filed its charges there 700 kilometers away from where the offences were allegedly committed. The principles enunciated in that case are quite apt and very instructive .

For instance, Olatawura, JCA(as he then was) clearly stated that fair hearing does not stop with the accused person’s opportunity to cross-examine and give evidence, “but should include the opportunity to have the case against him heard in a place where the offence was committed, and not where jurisdiction is conferred by manipulations”. In this case, the lower Court concluded as follows in its Ruling of 10th March, 2008

“Having arrived at the Conclusion that the venue of the trial in this case is a proper venue and that the charge was validly filed, the Applicants’ prayer one has failed. And considering the fact that the allegation of bias is not on the basis of the pecuniary interest of the Presiding Judge, Honourable M. L. Shuaibu, J., the Applicants had an onerous burden of providing clear, positive, the equivocal and solid evidence which they also failed to provide in this case. Thus, the facts in the instant case are distinguishable from the facts in – – Abiola V. Federal Government of Nigeria.The present facts are also distinguishable from those in Nwankwo V. State and Anyebe V. Adesanya (supras). – – On the strength of the foregoing and considering the absence of any justifiable reason(s) why the Presiding Judge, M. L Shuaibu J. should recuse himself from further anticipation in the trial of this case, the Application is hereby dismissed.” (Highlights mine)

Again, the lower Court missed the point. The Appellants did not allege any bias “on the basis of the pecuniary interest of the presiding Judge if, what they said is that the lower Court’s conditions can be construed in the eyes of a reasonable man as occasioning a real likelihood of bias and I agree. Fair hearing is all about fairness. Fairness as the Supreme Court observed in A.-G. Rivers State V. Ude (2006) 17 NWLR Pt. 1008) 436 “is the determining factor for the application of principles of natural justice. In other words, natural justice is fair play in an action” See also Ezechukwu V. Onwuka (2006) 2 NWLR (Pt. 963) 151 where this Court held that “fair hearing entails doing during the course of trial all that will make an impartial observer to believe that the trial has been balanced and even to both sides”. Fair hearing is also about perception. Thus, the true test of fair hearing is the impression of a reasonable man, whether from his own observation justice has been done in the case.

In this case, if a reasonable man is told that the Appellants were arraigned before a Court in Kaduna for offences allegedly committed in Delta State, and on the day they were granted bail after two months in prison custody, the Court gave them one week to prepare their defence, would he be able to say that they were treated fairly by that Court? How would the reasonable man see it if he also told that within that one week, the Appellants were expected to brief their lawyers and see to the movement of about 250 witnesses and volumes of vital documents from Delta State to a Court in Kaduna that the EFCC hand picked to try them? Surely, any reasonable man would say that proceeding with their trial in that Court would jeopardize the Appellants’ rights to a fair hearing/trial. The major plank of the Appellants’ contention is the presiding Judge was not designated to hear EFCC cases and for the prosecution to seek him out and file the charge directly before him is forum shopping.

“Forum shopping” occurs when a party attempts to have his action tried in a particular Court or jurisdiction where he feels he will receive the most favourable Judgment of verdict – see Black’s Law Dictionary 6th Ed. Forum non convenient is Latin for “an unsuitable Court”. It is -“The doctrine that an appropriate forum – even though competent under the law – may divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place also” – see Black’s Law Dictionary” 8th Ed.

See also The Longman Dictionary of Law 7th Ed., where it is defined as-

“Doctrine whereby the Court refuses to exercise its right of juristic on because, for the convenience of parties and in the interest of justice, a claim should be brought elsewhere. The phrase means, not that the English Court ”is not convenient’ but the some other Court is more suitable.”

The Respondent submitted that unlike the situation in Nwankwo’s case, by virtue of the Acts mentioned, the Chief judge of the Federal High Court can and did designate the lower Court to hear and determine cases such as the one with which the Appellants are being charged.

The Appellants however countered in their Reply brief that there is nothing in the printed record to establish the designation alleged by the Respondent, thus, it must be a fact within the personal knowledge of the Respondent, which draws attention to the issue of forum shopping.

I agree; there is nowhere in the said Acts mentioned it at specifically designated “Hon’ Justice M. L. Shuaibu” as an “EFCC Judge”. There is nothing on record, no gazette, no circular, no order or even an administrative directive from the Chief Judge of the Federal High Court showing that he was so designated, and can hear the matter in Kaduna. The only conclusion or reasonable inference one can draw is that EFCC preferred his Court and the only reason must be for forum shopping.

I do not see how the learned trial Judge could justify assuming jurisdiction in this case. Why was his Court chosen? What were the criteria used to determine Why he should be the one to hear the matter? I hold the firm view that it is not in any Judge’s interest to be identified as an EFCC Judge, Customs Judge or Police Judge, etc. The natural law of self preservation envisages that no one will deliberately go where his interests will be adversely affected or derailed, so the impression any one would have is that the Judge so chosen will do the EFCC’s bidding. So, the Appellants’ apprehend on as to the real likelihood of bias if they are to be tried at the Kaduna Division of the Federal High Court is valid.

I must also comment on the Respondent’s argument that the Appellants should not complain because they can afford to move the said 250 witnesses and relevant documents from Delta State to Kaduna. This line of argument is quite disturbing and has no basis in our law. Justice is justice for all, rich and poor alike and without fear or favour.

The fact that the 1st Appellant is a former Governor should have no bearing whatsoever on where he is tried as an accused person.

He is a Nigerian citizen and should be tried where others are being tried. There is definitely no room in our criminal justice system for different laws and different Courts for different categories of Nigerian citizens.

The Respondent also argued that the 2nd Appellant should not complain because the Delta State Government paid several sums of money is to her account, which was later transferred abroad. But these are the very allegations for which she is standing trial. She is presumed innocent until proven guilty, and the respondent cannot use the allegations that are yet to be proved by it to argue against her right to a fair hearing.

The Appellants urged this Court to nullify the proceedings and strike out the charge, but that is a tall order. As the Respondent rightly submitted, they applied for a transfer, and that is what they will get.

There is merit in this appeal and it is hereby allowed. The decision of the lower Court in its Ruling delivered on the 10th of March, 2008 is hereby set aside. In its stead, I do hereby order that this matter be transferred to the Chief Judge of the Federal High Court for onward transfer and assignment to the Judicial Division where the 129 Counts in the charges leveled against the Appellants were allegedly committed.

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Other Citations: (2008)LCN/3028(CA)