Jolly Tevoru Nyame V. Federal Republic of Nigeria (2009)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A.
By way of an application dated and filed on the 10th October, 2007, the Appellant prayed the trial High Court presided over by Hon. Justice A.A.I. Banjoko for the following orders:-
“(1) AN ORDER quashing all the 41 count charges preferred against the Accused person with the leave of this Honourable Court obtained on the 13th July, 2007 for failure to disclose a prima facie case against the Accused person and for want of jurisdiction and competence by this Honourable Court to adjudicate on this case as constituted.
(2) AND FOR SUCH further or other order or orders as this Honourable Court may deem fit and just to make in the circumstance of this case.”
On the face of the motion paper the Appellant listed 16 (sixteen) grounds for making the application which can be summarized as follows:-
(i) That since none of the proceedings, offences or elements thereof originated at the Federal Capital Territory, Abuja, and then by the provisions of Section 257 (1) & (2) of the 1999 Constitution, the Federal Capital Territory High Court clearly has no jurisdiction to entertain the case.
(ii) That following (i) above only the Taraba State High Court sitting at Jalingo has the requisite jurisdiction to try the case as constituted against the accused person in accordance with section 272 and 299 of the 1999Constitution since all the offences and elements thereof originated in Taraba State.
(iii) That the mere insertion of the words ”at Abuja” in all the 41 count charges is a mere embellishment by the Respondent. On the basis of the fact that you cannot place something on nothing and expect it to stand and in view of the overwhelming evidence in the proof of evidence witnesses statements and documentary exhibits, the insertion of the words “at Abuja” cannot in itself, clothe the High Court of the Federal Capital Territory, Abuja with territorial jurisdiction.
(iv) That in the foregoing premises, the mere entry or presence of the Appellant into or within the Federal capital Territory without more is not enough to confer jurisdiction on the trial court to hear and determine the case.
(v) That in respect of the offences of accepting gratification in respect of Official Act, Obtaining a valuable thing without consideration as a public servant. Misappropriation and Criminal Breach of Trust contrary to Sections 115,119,309 and 315 respectively of the Penal Code Law for which the Appellant was being charged, no prima facie case has been disclosed against him in the proof of evidence, witnesses, statements and entire documentary exhibits attached to the charge sheet dated 13th July, 2007.
(vi) That the Respondent-Federal Republic of Nigeria- not being the owner of the monies for which the Appellant was being charged, has no locus standi to prosecute the charges thus depriving the trial court of jurisdiction to try the case.
(vii) That in the absence of due consideration of the entire charges viz-a-viz the proofs of evidence and documentary evidence placed before the trial court on the 13th July, 2007, the jurisdiction of the trial court was not properly invoked when leave was granted on the same 13th July 2007.
In respect of the application and grounds above stated, the trial court, High Court of the Federal Capital Territory, Abuja in a considered ruling refused to decline jurisdiction to try the Appellant on the 41 count charges even though the entire offences originated at Jalingo, Taraba State. Also the court refused to discharge the ppellant for reason of non disclosure of a prima facie case against him in the proof of evidence attached to the charges dated 13th, July, 2007.
The Appellant being dissatisfied with the Ruling of the trial court appealed to this court vide a Notice of Appeal filed on the 26th November, 2007 and the grounds without particulars are stated as follows:-
“GROUNDS OF APPEAL
GROUND ONE
The Honourable Trial Judge erred in law when she held that the High Court of the Federal capital Territory, Abuja had the requisite territorial jurisdiction to try the offences alleged against the Appellant even in the face of overwhelming evidence that clearly showed that none of the offences and or ingredients of the alleged offences and indeed the criminal proceedings originated in the Federal Capital Territory, Abuja thereby occasioning a serious miscarriage of justice to the Appellant.
GROUND TWO
The Learned Trial Judge erred in law when she held that the Respondent even though not owner of the funds allegedly misappropriated has the locus standi to prosecute the case against the Appellant thereby occasioning a miscarriage of justice to the Appellant.
GROUND THREE
The Learned Trial Judge erred in Law when she refused to quash the entire 41 count charges alleged against the Appellant even though no prima facie case in respect of any of the alleged offences was disclosed in the proof of evidence, witnesses statements and documentary exhibits placed before the trial court thereby occasioning a serious miscarriage of justice to the Appellant.
GROUND FOUR
The ruling/decision of the trial court was against the weight of evidence adduced.
At the hearing of this appeal on 13/1/09, learned counsel for the Appellant, Farouk Asekome adopted the Appellant’s Brief filed on 29/4/08. In that Brief the Appellant framed three issues for determination which are:-
- Whether the learned trial Judge was right to have assumed jurisdiction to try the Criminal charges/offences alleged against the Appellant in the light of the clear provisions of Section 257(1) & (2) of the 1999 Constitution which limits the court’s jurisdiction to only criminal offences/proceedings which originate in the High Court of the Federal Capital Territory, Abuja even in the face of overwhelming evidence that showed that none of the offences or elements thereby originated within the Federal capital Territory, Abuja.
- Whether the Learned Trial Judge was right when she refused to quash the entire 41 count charges alleged against the Appellant even when no prima facie case was disclosed against the Appellant in the entire proof of evidence placed before the trial court.
- Whether the trial court was right to have refused to strike out the charges brought against the Appellant by the Respondent even when the Respondent clearly has no locus standi to bring the charges and prosecute the cases against the Appellant.
Mr. Rotimi Jacobs for the Respondent adopted the Respondent’s Brief which was filed on 28/5/08 and urged the court to dismiss the appeal and in the Brief distilled three issues also:-
- Whether the learned trial Judge was wrong to have assumed the jurisdiction to entertain the charges preferred against the Appellant on spurious allegation that none of the elements of the offences occurred within the Federal Capital Territory, Abuja.
- Whether the Respondent herein, has no locus standi to prefer the charges against the Appellant on the ground that the Federal Republic of Nigeria is not the owner of the sums of money for which the Appellant is being charged.
- Whether having regard to the entire proof of evidence before the lower court, it can be said that no prima facie case was disclosed against the Appellant as to enable the lower court to quash the charges preferred against the Appellant.
For convenience I shall make use of the issues as distilled or formulated by the Respondent.
ISSUE ONE
Whether the learned trial Judge was wrong to have assumed the jurisdiction to entertain the charges preferred against the Appellant on the spurious allegation that none of the elements of the offences occurred within the Federal Capital Territory, Abuja.
Learned counsel for the Appellant stated that a court is competent to adjudicate on any matter brought before it only when the following conditions have been fulfilled by the plaintiff:
(i) It is properly constituted as regards members and no member is disqualified for one reason or another; and
(ii) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(iii) The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
He cited the following cases:-
- Madukolu v. Nkemdilim (1962) 1 SCNLR 342;
- Osafile v. Odi (NO1) (1990) 3 NWLR (pt. 137) 230.
- Odofin v. Agu (1992) 3 NWLR (pt. 229) 350
- Ogwuche v. Mba (1994) 4 NWLR (pt. 336) 75.
He said it is trite law that a court of law cannot exercise civil or criminal jurisdiction in respect of an action or case that is not within its jurisdictional competence. That it is for that reason that the trial court can only hear civil or criminal matters that originate within the Federal Capital Territory, Abuja and has no territorial jurisdiction to hear any cause or matter that originated outside the Federal Capital Territory, Abuja such as in the instant case which originated in Jalingo Taraba State of Nigeria. He cited Attorney-General Abia State v. Attorney-General Federation (2006) 16 NWLR (pt. 1005) 205 at 349 – 351; Section 257 (1) & (2) of the 1999 Constitution which provision were straight forward and unambiguous words which should be given their simple ordinary and literal interpretation and no more. He cited Fawehinmi v. I.G.P. (2002) 7 NWLR (pt. 767) 606; Ararume v. INEC (2007) 9 NWLR (pt. 1038) 127.
Mr. Asekome for the Appellant further stated that it is the claim of a party and in this instance complainant that determines whether the court has jurisdiction to try the matter or not. He referred to Adeyemi v. Opeyori (1976) 9 – 10 SC 31; Iwuagolu v. Azyka (2007) 5 NWLR (pt. 1028) 613.
He submitted further that a careful perusal of all the 41 counts charge and evidence placed before the trial court will reveal that the Appellant was never linked or connected with collecting or misappropriating any alleged sum of money constituting the entire 41 count charge anywhere near the jurisdiction of the Federal Capital territory Abuja. That the Statement of the entire witnesses and documents, exhibits including the Bank cheques/instrument never placed the Appellant within Abuja and he was never linked with any offence that originated in the Federal Capital Territory, Abuja. That the Appellant was not a signatory or beneficiary of any of the cheques attached to the proof of evidence. He referred to the charges at the trial court; Sea Trucks (Nig) Ltd v. Anigboro (2001) 2 NWLR (pt. 696) 159; Attorney-General Lagos State v. Dosunmu (1989) 3 NWLR (pt. 111) 552; Ogunmokun v. Military Administrator, Osun State (1999) 3 NWLR (pt. 594) 262.
Mr. Asekome said that the proper High Court that has territorial jurisdiction to try criminal proceedings that originated from Jalingo Taraba is the High Court of Taraba State in accordance with Section 272(1) and (2) of the 1999 Constitution; Section 4 (1) of the Penal Code Act, Cap 532 LFN 1990; Njovens & ors v. The State (1973) All NLR 317; Waziri v. State (1997) 3 NWLR (pt. 496) 689; Akinrisola v. Attorney-General Anambra State (1980) 2 NCLR 17; Okoro v. Attorney-General Western Region (1966) NMLR 13.
In response, learned counsel for the Respondent, Mr. Jacobs submitted that from the provisions of Section 4 of the Penal code Act, some of the elements of the offences charged must occur in the Federal Capital Territory, Abuja before the High Court in Abuja can assume jurisdiction. That Section 4 of the Penal Code Act is identical with Section 12(2) of the Criminal Code of Southern Nigeria and the cases decided on those Sections would also be applicable to the construction of Section 4 of the Penal Code Act. That the authorities seem unanimous that once one of the elements of the offence or offences happens in a particular State, the High Court of that State would be competent enough to assume jurisdiction. He cited Waziri v. State (supra) 715; Okoro v. Attorney-General Western Nigeria (1966) NMLR 13 at 15 – 16; Maigaji v. Cop (1971) NNLR 13; Haruna v. State (1972) NSCC 550 at 560 – 561; Adeniyi v. State (2001) 13 NWLR (pt. 37S) 392 – 393.
Learned counsel for the Respondent went in search of what the term “element” refers to in Section 4 of the Penal Code Act and said it refers to the “act, omission or event. He cited Njovens v. State (supra) p. 80; Al-Mustapha v. State (2001) 8 NWLR (pt. 715) 414 at 422; Mattaradona v. Alu (1995) 8 NWLR (pt. 412) 225 at 235.
Mr. Jacobs said from the record it is clear that essential elements of the offences charged occurred in the Federal Capital Territory, Abuja which thereby clothed the Abuja High Court with the jurisdiction to adjudicate. Some of these essential elements were the initiation and payment of cheques from the Accountant at the Taraba State Liasion Office in Abuja. He further referred to Section 257(1) & (2) of the 1999 Constitution which provisions are unambiguous. He cited F.B.N. Ltd v. Njoku (1995) 3 NWLR (pt. 384) 457 at 474.
He contended that by the words of sub-section 2 of Section 257, the criminal proceedings which the High Court of the Federal Capital Territory, Abuja can entertain includes that which originates in the High Court of the Federal Capital Abuja, that it goes without saying that the Section does not exclude or purport to exclude offences which may originate in any other State and be completed or be partly performed in the Federal Capital Territory Abuja. He cited Mandara v. Attorney -General Federation (1984) 1 SCNLR 311 at 343 – 344; Ugwu v. Ararume (2007) 12 NWLR (pt. 1047) 367 at 438; Zimit v. Mahmoud (1993) 1 NWLR (pt. 267) 71 at 85; Egbwe v. Araka (1996) 2 NWLR (pt. 433) 688 at 711.
From the arguments of counsel within the con of their respective positions what is in issue is whether or not the High Court of the Federal capital territory Abuja has territorial jurisdiction to adjudicate on the charges against the Appellant as against the High Court of Taraba State where the offences originate, relate and of which the Appellant was Governor at the times material. The constitutional provisions at the root of this argument being Section 257(1) & (2) of the 1999 Constitution which provision. I shall quote hereunder:-
257-(1)- Subject to the provisions of Section 251 and any other provisions of this constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory, Abuja shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this Section includes a reference to the proceedings which originate in the High Court of the Federal Capital Territory, Abuja and those which are brought before the High Court of the Federal Capital Territory, Abuja to be dealt with by the Court in the exercise of it appellate or supervisory jurisdiction”.
Also by virtue of Section 64(c) of the Criminal Procedure Act, 1990, 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 or inquired into by a court having jurisdiction in the division or district in which it happened, or in which the offence with which it was so connected happened. Al-Mustapha v. State (2001) 8 NWLR (pt. 715) 414 at 422 per Oguntade JCA (as he then was)
In Al-Mustapha v. State (2001) 8 NWLR (pt. 715) 414 at 420 – 421 it was held by the Supreme Court:-
“The law which deals with venue for the trial of offences committed in States in Nigeria is section 64 of the Criminal Procedure Act; Cap 80, Laws of the Federation of Nigeria, 1990. In this regard, section 12 of the Criminal Code Laws of Lagos State only deals with application of the Criminal Code Laws to offences wholly or partially committed in Nigeria. It does not deal with the trial venue for offences committed in other States within Nigeria. A fortiori, Section 12A of the Criminal Procedure Code Laws of Lagos State does not also deal with trial venues for offences committed in other States in Nigeria. Being a state law, it cannot have effect beyond the frontiers of Lagos State”.
Following these provisions and judicial authorities the question to be determined is what the statutory provisions inclusive of the Constitutional amount to.
In order to achieve a satisfactory result in construction of statutes, the words of the relevant sections of the statute in question must be read as a whole. The courts will always construe a statute or any written instrument consisting of diverse parts or clauses, by looking at the whole so as to ascertain and carry out the intention of the legislature. Egbue v. Araka (1996) 2 NWLR (pt. 433) 694 at 702; Salami v. Chairman L.E.D.B. (1989) 5 NWLR (pt. 123) 539; Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (pt. 91) 633 at 641.
The first approach to the interpretation of a statute is for the court to discover the intention of the legislature from the words used in their ordinary and natural sense when there is no doubt or ambiguity about their meaning. It is a safer and more correct course of dealing with a question of construction to take the words themselves and arrive, if possible at their meaning without, in the first instance reference to cases. It is not in such circumstances permissible to go beyond what the words themselves actually convey and to consider what other things they are capable of and could mean. This is known as the literal rule of interpretation. Egbue v. Araka (1996) 2 NWLR (pt. 433) 688 at 701 – 702; IBWA v. Imano (Nig) Ltd (1988) 3 NWLR (pt. 85) 633.
A corollary to the general rule of literal construction is that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted. A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. Egbue v. Araka (1996) 2 NWLR (pt. 433) 688 at 706.
The duty of the court is to interpret the words that the legislature has used in a statute. Those words may be ambiguous, but even if they are, the power and duty of the court to travel outside them on a voyage of discovery is strictly limited. For any attempt by the court to fill any gap in a statute is a naked usurpation of the legislative function and is the less justifiable when it is guess work with respect to what material the legislature would, if it had discovered the gap, have filled it. If a gap is disclosed, the remedy lies in an amending Act. Egbue v. Araka (1996) 2 NWLR (pt. 433) 688 at 706; I.B.W.A. v. Imano (Nig) Ltd (1988) 3 NWLR (pt. 85) 633. See Olafisoye v. Federal Republic of Nigeria (2004) 4 NWLR (pt. 864) 580 at 670 per Tobi JSC:
“Where a constitutional provision is clear and unambiguous the courts cannot read into the provision an implied term, because by the clear and unambiguous provisions an implied term is impliedly forbidden to be part of the Constitution. This is moreso as a constitution is not a transient agreement like contract where implied terms could be read into the workings in the interest of the commercial transactions of the parties. Thus, where a constitutional provision is clear and unambiguous and the courts read into them so-called implied terms the courts will be going outside their interpretative jurisdiction and will be branded as making the law in a bad way”.
There is a distinction between territorial limits of the Penal Laws with which Section 4 of the Penal Code Law is concerned and the territorial limits of the jurisdiction of the criminal courts governed by Section 134 of the Criminal Procedure Law. This distinction is sometimes overlooked when the territorial limits of application of the law and of the jurisdiction of courts are practically identical for example in the case of the State High Court and the Laws of the State. Waziri v. State (1997) 3 NWLR (pt. 496) 689 at 714 – 715.
Few judicial authorities need be perused as guide in this appeal.
In Njoevns & ors v The State (1973) All NLR 371, it was held:
That in the con of Section 4(2) of the Penal Code Law the word ‘element’ therein is more duly conceived and is not limited either to an actus reus or the mens rea in conventional jurisprudence. For the purpose of applying the subsection it is necessary to look for the initial element of the offence, that is the initial act or omission concerned; if that initial act or omission occurs in the State even though the other ‘elements’ do not, the person who does or makes that initial act or omission is punishable by the State under the Penal Code; on the other hand, if that initial act or omission occurs outside the State, the other or others occurring within the State, and the person who does or makes that initial act or omission afterwards enters the State, he is by such entry triable by the State under the Code.
“On a charge of abetment of an offence, the initial element is the instigation or positive act of encouragement to do or make the act or omission which constitutes the offence. In this case, the initial element took place outside Kwara State, but the commission of the act of abetment which is an element of a charge under Section 85 of the Penal Code (as opposed to Section 91), took place in Kwara State; and, on the evidence, the defendants were apprehended in that State. They were therefore properly triable in Kwara State by virtue of section 4(2) (b) of the Penal Code”. Njovens & ors v The State (1973) All NLR 371. In Lawani Maigaji v. Commissioner of Police (1971) NNLR 13.
One example with the facts in a judicial authority relevant hereto: See the case of Maigaji v. COP (supra). A lorry was journeying from Lagos to Kaduna carrying cement near Ilorin the lorry was involved in an accident and remained there unrepaired for forty-four days. The driver, Lawan Maigaji remained with the lorry and sold some of the cement to cover his expenses which he said included bail and his salary. He resides in Kano and was convicted by the Upper Area Court, Kano of criminal breach of trust of the cement he sold.
It was held on appeal that: –
“(1) the offence; if any was committed during the forty-four days when the lorry remained unrepaired. This was not ‘in the course of that journey” within the terms of section 136 Criminal Procedure Code.
(2) The words ”resides, is or” added to Section 136 Criminal Procedure Code by Criminal Procedure Code (Amended NO.2) Law 1964 must be interpreted to be qualified by the words “in the course of that journey or voyage” which qualifies the whole Section. Kano was not “in the course of that journey or voyage”. The Kano court had no jurisdiction. Haruna v. The state (1972) NSCC 550.
Also stated by this court per Edozie JCA (as he then was):-
“1. While the agreement reached by the accused persons in Lagos to obtain payment in Bida, in the North-Western State, for fictitious purchases by means of forged vouchers may well constitute the offence of conspiracy under common law in Lagos, it also constitutes, by virtue of section 96(2) of the Penal Code in force in the North-Western State the offence of criminal conspiracy in Bida as soon as one of the accused submitted the first payment voucher in Bida and received a cheque in payment of the amount stated therein; notwithstanding the fact that the agreement to do the illegal act was reached in Lagos, were properly tried and convicted in the North-Western State for the said offence of criminal conspiracy.
- Section 221(d) of the Criminal Procedure Code of the Northern States, when read with Section 96 of the Penal Code, is intended to apply to a case such as this one; and in order to constitute one transaction within the meaning of the said Section 221(1) (d) all the acts in question should from the very beginning be either in contemplation or should form component parts of a while. Bearing in mind the original agreement in Lagos and the elaborate arrangements made for the overt acts which followed at Bida, the conspiracy was hatched and the overt acts were done undoubtedly in the course of the same transaction, and it was therefore right and proper to charge and try all the accused together.
A criminal court of Plateau State cannot have jurisdiction in respect of an offence wholly committed outside Plateau State without any element occurring in Plateau State. The mere fact is that the offender happens to enter into the State is immaterial. In the instant case, the trial court was wrong to have exercised jurisdiction over the appellants merely on the fact of their entry into Plateau State when the trial court had already found rightly that all the offences with which the appellants were charged; viz: Conspiracy, breach of trust and receiving stolen property happened in Okigwe in Imo state outside Plateau state and no element of the offence was shown to have taken place in Plateau State”. Waziri v State (1997) 3 NWLR (pt. 496) 689 at 716 Okoro v Attorney-General Western Nigeria (1965) 1 All NLR 283; Maigaji v Cop (1971) NNLR 13; Njovens v. State (1973) 5 SC 17.
Jurisdiction is a radical and crucial question of competence, hence, any defect in the competence of a court to entertain a matter is fatal and the defect is extrinsic to the adjudication. Madukolu V Nkemidilim (1962) 2 SCNLR 341; Iwuagolu v. Azyka (2007) 5 NWLR (pt. 1028) 613.
Once a court is satisfied that it has no jurisdiction to make any pronouncement other than to say it has no jurisdiction over a matter, the proper orders is to either strike out the case or transfer it to a court with the requisite jurisdiction for hearing. Iwuagolu v. Azyka (supra) pp. 631 – 632.
Part of the judgment dealing with this Issue NO1 which has to do with territorial jurisdiction reads as follows:-
“Once one of the elements of the offence happens in a particular State, the High Court of that state would be competent enough to assume jurisdiction. Sections 6(m) and 7(2) b of the Economic and Financial Crimes Commission empowers the Economic and Financial Crimes Commission to take charge, supervise, control and co-ordinate the investigation and prosecution of offences under Section 7(1) and (2) (a – f) and under Section 4(2) (a) and (b) territorial jurisdiction is conferred on Federal Capital Territory High Court to hear and determine the cases where the initial or other elements occur within the Federal Capital Territory. The court is interested in looking at the act or omission that constituted the offences to determine whether any of them occurred within the Federal capital Territory, Abuja and the bundle of documents are referred to for guidance. If any element purportedly occurred in Abuja then the Federal Capital Territory High Court, Abuja will have the requisite jurisdiction to try the case. The reference to Section 257(2) (Constitution) on the words “proceedings which originate and the respective address are noted and it is clear that the word ”includes” signifies that the contents of the Section are not exclusive. It could capture other civil or criminal proceedings that did not originate in the High Court of the Federal capital Territory… In the light of the above, I find that there is both subject matter as well as territorial jurisdiction. The proof of evidence has already shown that some of the acts were allegedly committed within the Federal Capital Territory thus conferring jurisdiction on this court in the terms of Section 4(2) (b) of the Penal Code Act and Section 6(m) and Section 7(2) of the Economic and Financial Crimes Commission Act”.
It is to be noted that the process of the court must not be made to oppress a citizen so that to charge a citizen with an offence with a view to harassing him will be an abuse of the process of that court. This is borne in mind in the consideration of the Proof of Evidence together with the application. See Ikomi v. State (1986) 3 NWLR (pt. 28) 340.
From the Proof of evidence as contained in the statement of a witness Abdulraham Mohammed at page 295 some salient elements of the offence as the initiation and cashing of relevant cheques and the allegation that the monies were made available to the Accused/Appellant in Abuja specifically in the Taraba State Government Lodge, Asokoro Abuja. That being so the learned trial Judge was right in not declining jurisdiction. Her court had the territorial jurisdiction to adjudicate and it is of no moment that the Appellant in his Statement denied being connected with the alleged disbursements and collection of the cash referred to. This is because that is a matter to be adequately dealt with at the trial of the offences charged. I place reliance on Section 257(1) & (2) of the 1999 Constitution and Section 4(2) (b) of the Penal Code Act Sections 6(m) and 7(2) of the Economic and Financial Crimes, Commission Act and the cases of Waziri v. The State (supra) at 715; Okoro v. Attorney-General Western Nigeria (1966) NMLR 13 at 15 – 16; Maigaji v. COP (1971) NNLR 13; Haruna v. State (1972) NSCC 550 at 560 – 561; Adeniji v. State (2001) 13 NWLR (pt. 375) 392 – 393.
I hereby resolve this issue as to the competence and jurisdiction of the High Court of Abuja in favour of the Respondent and against the Appellant. For indeed the Abuja High Court had the jurisdiction with which she proceeded.
ISSUE TWO
Whether the Respondent herein, has no locus standi to prefer the charges against the Appellant on the ground that the Federal Republic of Nigeria was not the owner of the sums of money for which the Appellant was being charged.
Learned counsel for the Appellant stated that the Federal Republic of Nigeria is a Federating unit consisting of 36 States and by the provisions of the Section 3(1) of the 1999 Constitution and Taraba State is considered as one of the 36 States that make up the Federation. He cited Section 2(1) & (2) of the 1999 Constitution. He said that the Respondent- Federal Republic of Nigeria is not the owner of the entire funds allegedly misappropriated and/ or corruptly embezzled by the Appellant and which funds are the subject matter of the entire 41 counts charges dated 13th July, 2007 brought against him, as a result of which it has no locus standi to file and prosecute the criminal charges against him. Learned counsel submitted that only the owner of property logically has a right to that property and to seek redress for any threatened breach of its proprietary rights over any such property. That only the owner of that property has the competence and/or locus standi to institute criminal proceedings against anyone who commits any offence in respect thereto. That by virtue of the clear provisions of Section 120 of the 1999 Constitution, all revenue or funds or money received by a state, Taraba State inclusive belongs to that State and only that State has the powers and control over such funds to the exclusion of any other authority. That it is the Taraba State Government through its Attorney -General in accordance with Section 211 (a) of the 1999 Constitution. That locus standi is a threshold issue which denotes the legal capacity to institute proceedings (civil or criminal) in a court of law. He cited Owodunni v. Celestial church of Christ (2000) 10 NWLR (pt. 675) 325; Adenuga v. Odumeru (2002) 8 NWLR (pt. 821) 163.
The Appellant further contended that it was not enough for the Respondent to allege criminal and illegal acts against the Appellant, it must establish how its (Federal Republic of Nigeria) rights and obligations have been breached or threatened by the misappropriation of funds belonging to a different entity with constitutional rights to sue and or prosecute criminal proceedings against any person who has unlawfully and illegally deprived it of them and in this instance, the Taraba State Government. He referred to Attorney-General Adamawa State v. Attorney-General Federation (2005) 18 NWLR (pt. 958) 581 at 648; Attorney-General Bendel State v. Attorney-General Federation (1981) 12 NSCC 314; Adefulu v. Oyesile (1989) 5 NWLR (pt. 1220) 377; Thomas v. Olufosoye (1986) 1 NWLR (pt. 18) 669; Lekanmi v. Adene (2003) 10 NWLR (pt. 88) 353.
Learned counsel for the Respondent in response submitted that the power to prosecute for offences committed within the Federal Capital Territory, Abuja is exercisable by the Federal Republic of Nigeria either through the Attorney General or any other agency of the Federal Government vested with prosecutorial powers. That charges filed at the High Court of the Federal capital Territory, Abuja can only be initiated in the name of the Federal Republic of Nigeria and not in the name of the Taraba State. He referred to Oluwatoyin Doherty in her book Criminal Procedure in Nigeria, Law and Practice p. 175.
Mr. Jacobs said that the Appellant is being prosecuted by the Economic and Financial Crimes Commission (EFCC) on behalf of the Federal Republic of Nigeria and has powers in matters which include fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting and any form of corrupt practices. That those crimes cover even what Appellant is charged with. Also that the EFCC Act provides that the Commission shall be the co-ordinating agency for the enforcement of the provisions of any law or regulation relating to economic and financial crimes including the Criminal Code and Penal Code. See Section 6(m), 46, 7(2) (f) of the EFCC Act 2004; Olafisoye v. FRN (2004) 4 NWLR (pt. 864) 580 at 656- 651; Attorney-General Abia State v. Attorney-General Federation
(2006) 16 NWLR (pt. 1005) 265.
Learned counsel for the Respondent further contended that the prosecutorial power of the Attorney General of Taraba State under Section 211 of the 1999 Constitution cannot by any stretch of imagination be extended to the Federal Capital Territory, Abuja. That although part of the element of the offences might have occurred in Taraba State while other elements happened in the Federal Capital Territory, Abuja that does not preclude the prosecution from charging the accused who entered the Federal Capital Territory, Abuja having regard to the provision of Section 4(2) (b) of the Criminal Procedure Code Act. That it is the responsibility of the Federal Republic of Nigeria to take appropriate steps to abolish all corrupt practices and abuse of power as was observed by the Supreme Court in Attorney-General Ondo State v. Attorney General Federation (supra) page 392.
Mr. Jacobs contended further that the power to prosecute for an offence in the Federal Capital Territory, Abuja just like any other jurisdiction is not determined by the ownership of the property allegedly stolen or misappropriate or even the subject matter of the charge, what is however relevant to determine are the following:
(a) Who can exercise prosecutorial power over the offence?
(b) The nature of the offence charged;
(e) Where the offence is committed.
That where the offence charged is a Federal offence irrespective of the ownership of the subject matter of the offence, the Attorney General of the Federation or any relevant Federal Agencies may by the provisions of Section 174 of the Constitution 1999 prosecute the accused in any court in Nigeria except court martial. Also that where the offence charged is committed or partly committed within the Federal Capital Territory, Abuja, the Attorney General of the Federation or any Federal Agencies may by Sections 299 and 174 of the Constitution prosecute the accused in the High Court of Federal Capital Territory, Abuja.
Section 211(1) of the 1999 Constitution empowers the Attorney-General of a State 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 law of the House of Assembly. However, the power of the Attorney- General to bring information is conferred by Sections 72 and 77(b) (i) of the Criminal Procedure Law. Per Belgore JSC (as he then was) Abacha v. The State (2002) 11 NWLR (pt. 779) 477 at 478, 482.
A Judge is hired to interpret the laws of the country which include the Constitution and statutes. Where there is infraction of the law, he has a constitutional duty to say so. Therefore, the court will not be blind to a situation where an Act which is out to check corruption is enacted in contravention of the Constitution. In such a situation, the court will stoutly rise to condemn such an Act, even though an Act on corruption is designed to promote the highest good and economic well-being of the society.
The courts have no jurisdiction to question the law making power of the National Assembly and the House of Assembly of States. This is because the power to make law is vested in them and the courts cannot by or through the common law remove the power from them. But where a statute is enacted in breach of the Constitution, the courts must come in to stop the breach. This, the courts can do, only by one or more parties seeking the court’s jurisdiction to declare a statute void. Supreme Court in Attorney-General Abia State v. Attorney-General Federation (2006) 16 NWLR (pt.1005) 265 at 382 – 383, 385; Attorney -General Ondo State v. Attorney-General Federation (2002) 9 NWLR (pt. 772) 222; Attorney-General Bendel State v. Attorney-General Federation (1983) 1 SCNLR 239.
The more I consider the issue No.2 as to whether the Federal Government cannot through any of its agents including the Federal Attorney General initiate prosecution or prosecute the Appellant since the money in question does not belong to the Federal Government, the more considered alongside the arguments, the more cautious I am inclined to be since the court cannot at this stage delve into matters that are best suited at the full trial and the proper venue. This is so because in an interlocutory application, the court must refrain from making an order which has the effect of deciding the substantive issues or reliefs in the case. Per Kalgo JSC Adenuga v. Odumeru (2002) 8 NWLR (pt. 821) 163 at 187-188; Orji v Zaria Industries Ltd (1992) 1 NWLR (pt. 216) 124; Egbe v. Omogun (1972) 1 All NLR (pt.1) 951.
I would want to recapture the provisions of Section 174 of the 1999 Constitution.
section 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
(e) 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) of this Section may be exercise 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 abuse of legal process.
As a follow up, the Attorney-General is empowered to bring information pursuant to Sections 72 and 77(b) (1) of the Criminal Procedure Law. See Abacha v. The State (2002) 11 NWLR (pt. 779) 477. This interpretation of those Constitutional provisions stem from the fact that the words were plain, clear and unambiguous and left nothing for meanings other than what the framers of the Constitution intended. Egbue v. Araka (1996) 2 NWLR (pt 433) 694; IBWA v. Imano (Nig) Ltd (1988) 3 NWLR (pt. 85) 633.
In the pursuit of crime prevention and prosecution we cannot run away from carrying out those assignments in full view of the necessary jurisdiction of court. The issue here is not who owns the money in question, but how the prosecution in the light of an alleged criminal infringement of the Penal Code Act or the EFCC Act can be handled properly on the balance of justice.
Therefore the answer to whether the Respondent has locus standi or not cannot arise since in the enforcement of the law especially that of the criminal law the Federal Government or its agencies can initiate and prosecute once the relevant statute so authorises and in the case before us the Constitution of the Federation 1999 vide Sections 174 and 299 so provide. I place reliance upon Sections 6(m), 46, 7(2) of the EFFC Act 2004; Sections 174 and 299 of the 1999 Constitution; Olafisoye v. FRN (2004) 4 NWLR (pt. 864) 580; Attorney-General Abia State v. Attorney-General Federation (2006) 16 NWLR (pt. 1005) 265.
This issue No.2 is therefore resolved in favour of the Respondent.
Issue No.3 cannot be taken since it raises the matter of whether or not the charges ought to be quashed for a prima facie case not being made out. This is because it is premature at this stage to consider the prima facie status of a matter which trial has not yet kicked off, and what is at play being the Proof of Evidence. Also the Constitutionality or otherwise of the Economic and Financial Crimes Act cannot be undertaken in this appeal.
This appeal fails and is hereby dismissed. I affirm the decision of the Court below the High Court of the Federal Capital Territory Abuja which court has jurisdiction and for now there is no basis to quarrel with her finding, and that the charge or information is properly before her instituted by the appropriate authority which in this instance is the Federal Republic of Nigeria or Attorney-General of the Federation.
Therefore there is a foundation upon which she can go on with the trial.
Other Citations: (2009)LCN/3129(CA)
