Jonah Onyebuchi Eze V. Federal Republic Of Nigeria (1987)
LawGlobal-Hub Lead Judgment Report
ESO, J.S.C.
The point involved in this appeal has been considerably narrowed down, especially by the briefs filed by both learned counsel for the Appellant and the Respondent. However, I would have to state the facts relevant to the issue now before this court.
The issue itself is whether jurisdiction lies in the Federal High Court or the State High Court in regard to the case against the Appellant, Jonah Eze. There were four counts charge against the Appellant, but only two are relevant for the purpose of this appeal. They are counts 3 and 4 and they read as follows-
“COUNT 3:
That you, Jonah Onyebuchi Eze of No. 18 Obun Eko Street, Lagos, in the Lagos Judicial Division on or about the 8th day of September, 1980 at Apapa Port, Lagos, knowingly delivered to a Customs Officer a document produced for the purposes of Customs to wit, a duplicate copy of an expired firearms import licence which is untrue in a material particular and thereby committed an offence contrary to Section 142(1)(a) and punishable under Section 142(3) of the Customs and Excise Management Act No. 55 of 1958.
COUNT 4:
That you, Jonah Onyebuchi Eze of No. 18, Obun Eta Street, Lagos, in the Lagos Judicial Division on or about the 8th day of December, 1980 at Tin Can Island Port, Lagos, knowingly delivered to a Customs Officer a document produced for the purposes of Customs to wit, a duplicate copy of an expired firearms import licence which is untrue in a material particular and thereby committed an offence contrary to Section 142(1)(a)and punishable under Section 142(3) of the Customs and Excise Management Act No. 55 of 1958.”
The charge which, as I said, contained four counts was laid before the Federal High Court, Lagos. However, after protracted hearing and applications, this Court, in the interim, and on 10th June 1983, had given its decision in the case of Bronik Motors v. Wema Bank. As a result of that decision the Complainant, who is now the Respondent in this Court, applied through learned counsel, Mrs Folami, for a transfer of counts 1 and 2 to the Lagos State High Court on the ground of lack of jurisdiction on the part of the Federal High Court. On 24th February, 1984, the learned Chief Judge of the Federal High Court, Anyaegbunam C.J., struck out counts 1 and 2. He said-
“I have not, however, found any rule in the Lagos State High Court (Civil Procedure) Rules 1972 which empowers a transfer from the Lagos State High Court to another State High Court. Furthermore, from the contention of learned Senior State Counsel, Mrs Ekpo, it is clear to me that they did not wish to continue with counts 1 and 2. I would therefore strike them out.”
As regards counts 3 and 4, which I have set out supra, the learned Chief Judge held-
“The next points to be decided are in respect of counts 3 and 4 in my earlier ruling on these two counts, I held that I had jurisdiction. I referred to section 142 of C.E.M.A. with particular reference to marginal notes – “untrue declaration, etc,” I said, among other things that:-
“The title of CEMA referred to above is an important part of the Act. It is useful in ascertaining the general scope of the Act. See Jones v. Sherrington (1908) 2 K.B. 539 and Fisher v. Raven (1964) A.C. 210. I have no doubt in my mind that this court has jurisdiction to deal with counts 3 and 4 of the Charge. The documents in question must surely have something to do with duty. After all what is the purpose of submitting these documents to the Customs It is either to show that duty is payable or that the goods are duty free.”
What is the meaning of ‘customs and Excise duties’ as contained in Section 7(1)(b )(ii) of the Federal High Court Act 1973. In Earl Jowitt Dictionary of English Law, customs’ is defined among other things as ‘duties charged upon commodities on their importation into or exportation out of the country.’ In words and Phrases Legally Defined Second Edition, ‘Customs duties’ are defined as ‘Duties of Customs or customs duties are duties or tolls payable upon goods imported into this country, as opposed to excise duties, which are payable upon articles produced and consumed at name.’
It is clear, therefore, that section 7(1)(b)(ii) is, to my mind, within the jurisdiction of this court. I have already said so and I have not heard any new argument to make me shift my ground.
In the result, I overrule the submissions that I have no jurisdiction to entertain counts 3 and 4. I would ask Mr. Dolu Segun to proceed with his defence on count (sic).
Both parties appealed to the Court of Appeal. That court, (Ademola, Nnaemeka-Agu and Kutigi J.J.C.A.) in a lead judgment, delivered by Nnaemeka-Agu, dismissed the appeal. Nnaemeka-Agu J.C.A. held that when the two counts that is 3 and 4 aver that the documents delivered by the defendant were “knowingly delivered to a Customs Officer for the purpose of customs”, they amount to an averment that the documents were knowingly delivered for the purposes of ‘Customs duties’.” He then said-
“This to my mind puts the charge as laid squarely within the four corners of the criminal jurisdiction of the Federal High Court as adumbrated in Bronik Motors Ltd. v. Wema Bank (supra) and Mandara v. Attorney-General of the Federation (1984) 4 S.C. 8”
Even if the charges were not proved, the learned justice of the Court of Appeal held the view that –
“that will not take the matter out of the jurisdiction of the Federal High Court. For, if the charge as laid shows that jurisdiction lay in the Federal High Court that jurisdiction cannot be taken away by failure to prove any ingredient of any averment in the charge. ”
There was some caveat though, for it was the view of the learned Justice of the Court of Appeal, that ‘E2’80”
“It would be different if evidence called at the trial shows positively that the documents were not delivered for the purposes averred, but for other purposes which would take the matter out of the jurisdiction of that court of limited jurisdiction.”
Nnaemeka-Agu J.C.A. then examined the submissions of learned counsel for the Appellant in regard to the evidence. He referred to the cross-examination of the 2nd prosecution witness which was as follows
“To import Arms and Ammunition, a dealer must have his licence to import. He must produce to the Customs his licence to import before he clears his goods from the port. He must make sure that his licence is from the Police. Once this is done the importer or his agent can now submit his Bill of Entry which will be accepted by the Customs. We will check from the licence the quantity of goods to be imported. The quantity imported will he endorsed at the back of the licence so as to know when he exhausted the quantity allowed by his licence.”
and then held –
“It appears clear from the above evidence that without the documents it would have been impossible to know the quantity firearms imported by the appellant.”
He went on-
“There was relationship between the quantity of goods endorsed on the licence (that is quantity of goods imported) and the rate and amount of duty payable”
And ended that the evidence showed that in substance it was a purely customs case.
Kutigi J.C.A., in concurring with the judgment, would appear to limit his considerations to the charges before the Court. The learned Justice of the Court of Appeal was of the view that his view accords with the view of this Court in the case of State v. Williams 1978 2 SC.9. A second test Kutigi, JCA held is that –
“the charges herein are in accordance with the law or section of the law which created the offence.”
The defendant has therefore appealed to this Court relying on seven grounds of appeal.
It is more interesting to examine the briefs filed by learned counsel in pursuance of the grounds of appeal. Mr. G.O.K. Ajayi (S.A.N.), learned counsel representing the Appellant, in a full brief, submitted that the only “real issue” to be determined in this appeal is whether or not the evidence led at the trial shows that the documents were delivered for the purposes of customs duties. He dealt extensively on the evidence adduced at the trial and concluded –
“The Appellant submits that the above-quoted evidence for the prosecution shows that the import licence was in fact produced for the primary purpose of satisfying the customs officials that the Appellant had a licence which covered the importation of the arms and ammunition being imported and not for the purpose of discovering whether or not duty was payable.”
Having dealt with the only “real issue”, learned Senior Advocate, strangely enough, dealt with a sub-heading which he termed “THE FEDERAL HIGH COURT COULD NOT ACQUIRE JURISDICTION THROUGH ARTIFICIALLY FRAMED CHARGES.” With respect,I think this subheading is so important that it would appear to belie the fact that there is only one real issue. With the so called only one real issue, one would have to wait till evidence is led before an objection could be raised to jurisdiction. I do not think so. Indeed, the decision of this Court in The State v. Dr. L.E. Williams (1978) 2 SC.9 which incidentally Mr. Ajayi relies upon heavily, is enough to counter the proposition. Issue of jurisdiction in this case, as in any other case, could be raised at any time, whether at the stage of the charge, evidence or even when judgment is being delivered. In many cases, it is not raised until the matter is on appeal and yet that creates no derogation to its potency.
For his part, Mr. Oladapo, learned counsel for the Respondent, relied on the Williams case and submitted that the charge, as laid, avers that the document, that is an expired Firearms licence was presented to a Custom Officer for purposes of customs which have been held to mean the same thing with customs duty the document is said to be false not in the sense of section 465 of the Criminal Code but under section 142 of the Customs and Excise Management Act. Learned counsel concluded that the decision of this Court in Bronik Motors v. Wema Bank Ltd. (1983) 1 Sc. N.L.R 296 and Mandara v. Attorney General (1984) 1 SC. N.L.R. 311 do not affect the jurisdiction of the Federal High Court in this case.
I have already set out the charges in this case. I will now state the facts. They are beautifully, though succinctly recorded, by Nnaemeka-Agu JCA, in his judgment and I will just repeat them.
“The appellant, a licensed importer of firearms, had issued to him by the police, a licence for the importation of firearms dated 8th January, 1976, for 1,050 pieces of firearms with ammunition (See exh.C). No expiry date was stated on the face of the licence. Endorsements thereon showed that he used the licence to import quantities of firearms at various dates from 1976. On the 8th of September, 1980, he imported some quantities of firearms into Apapa Port and presented to Customs Officers at the port a duplicate copy (Exh. A) of the licence (Exh. C) as authority for the importation. He was later arrested and charged on four counts, two contrary to Section 20(d) of the Firearms Amendment Act, 1956, and the other two under Section 142(1)(a) of the Customs and Excise Management Act No. 55 of 1958 (hereinafter called C.E.M.A.) When the issue of jurisdiction was raised at the conclusion of evidence during the trial, the learned Chief Judge of the Federal High Court ruled that he had no jurisdiction to try counts 1 and 2 but that he had jurisdiction to try counts 3 and 4. This appeal relates to his ruling that he had jurisdiction to try counts 3 and 4.
The real problem with the Court of Appeal, as well as the trial Court in this case, is the understanding of the length to which this Court had gone in both the Bronik case (supra) and the Mandara Case (supra) in so far as the jurisdiction of the Federal High Court is concerned. This Court made no bone about it. The jurisdiction of the Federal High Court is severely limited to issues of Revenue generating apart from specific jurisdiction conferred upon that Court by the Constitution and the Parliament (at present by a Decree passed by the A.F.R.C.) I think the language employed by Irikefe J.S.C. as he then was, in the Bronik case, though terse, is apt. The learned Justice of the Supreme Court (as he then was) said-
“I must add that the Federal Revenue Court and its successor the Federal High Court derive existence from the need, to have a court for the more effective and expeditious “garnering” of Federal Revenue. In this regard, the Federal High Court differs from the State High Court, which under section 236 of the 1979 Constitution enjoys unlimited jurisdiction, unless jurisdiction is expressly excluded by Statute or the Constitution itself.”
In the same case, I traced the historical background to and the evolution of the Court. I think I will repeat it again here for the purpose of emphasis.
“In 1973 by the Revenue Court Decree 1973 No. 13, the Federal Revenue Court was established to have original jurisdiction in certain specific revenue matters such as taxation of companies, customs excise duties, banking, foreign exchange, currency, and fiscal measures of the Government. The purpose of the Decrees as its title connotes, to provide a separate court to deal with revenue matters. The problem at that time was that it was felt that there was delay by the courts in dealing with the revenue matters of the Federal Government and as there was a necessity to provide expeditious handling by the Courts, the Federal Revenue Court provided the answer. However, with the promulgation of the 1979 Constitution, the Revenue Court ceased to have any place in the scheme of things.”
And so, the Federal High Court was established, inheriting the jurisdiction, on its inception, the jurisdiction of the Federal Revenue Court.
I will therefore examine the issue of jurisdiction, not only on the narrow compass of what evidence was available, but also on the charges as laid. On the evidence available there is no dispute that there was no question of “garnering” revenue in this case. The evidence was that duty was correctly paid. What is left is the forgery, or rather uttering a forged document which charge, though had not been laid under the Criminal Code, carries the same element. I am impressed by the collection of evidence present in Mr. Ajayi’s brief. The Chief Superintendent of Police dwelt on the expired nature of the Firearms licence, and importation of arms without licence. The Appellant was “brought” to the police station for only the offence of unlawful importation of firearms. The Assistant Superintendent of Customs had decided
“There was no loss of revenue.” Correct dues were paid on the items.”
And so, what revenue was there left to be garnered
I hold the view that Nnaemeka-Agu J.C.A., directed himself properly upon the nature of the evidence when he said-
“It does appear to me that Mr. Oladapo is right. P. W.2 said under cross-examination:
“…..To import Arms and Ammunition a dealer must have his Licence to import. He must produce to the Customs his licence to import before he clears his goods out of the port. We must make sure that the licence is from the police. Once this is done the importer or his agent can now submit his Bill of entry which will be accepted by the Customs. We will check from the licence the quantity of goods to be imported. The quantity imported will be endorsed at the back of licence so as to know when he exhausted the quantity allowed by his licence..”
But the learned Justice of the Court of Appeal read the words ‘customs and customs duties’ to be the same and or inter- changeable. The learned Justice relied on Blacks Law’s Dictionary and Earl of Jowitt Dictionary of English law. With respect, there is no need for this exercise. In so far as the evidence goes, no question whatsoever of complaint of customs duty. It is not for the Curt to stretch itself by interpretation to seek jurisdiction for itself or for another court. The issue of jurisdiction is one for the Constitution and the Law. Having regard to the limited jurisdiction of the Federal High Court vis-a- vis the unlimited jurisdiction of the State High Court, it must be so plain before the Federal High Court could nimble into the State High Court jurisdiction. That limited jurisdiction of the Federal High Court is not that easy to scale over.
But even, diverting ones mind to the charge only. The charges are clear and unambiguous. It is-
” Knowingly delivered to a Customs Officer a document produced for the purpose of customs, to wit a duplicate copy of an expired firearms import licence which is untrue in a material particular ..”
What is it that savours of revenue garnering in this charge The document is not a mystery. It is-
“a duplicate copy of an expired firearms import licence.”
What revenue concept surrounds an expired import licence.”
What is the revenue to the Federal Government Why must there be a strain in the interpretative Stance Such strain could be there for the purpose of giving the Federal High Court jurisdiction. If the prosecution complains of revenue why did they not charge the Appellant with its loss or its evation Or even to examine the “material particular” which the charge alleges, there is no suggestion of loss of revenue.
I do not think the words “produced for purpose of customs” should send panic to any court If a document produced for the purpose of customs duty to a customs officer is forged, and the complaint is limited only to forgery or uttering a forged document it is only that complaint that is relevant for the purpose of jurisdiction. Is the forgery for the purpose of evading customs duty If it is so, it must be so charged before a Court with such limited jurisdiction could assume jurisdiction in the matter. It is a different matter if the jurisdiction is not so limited and controlled. This Court has made it clear, as per Sowemimo J.S.C. as he then was, in the Williams case (supra). The learned Justice of the Supreme Court had said –
“In short it is his contention that the documents are so relevant to the proof of the charges contained in the information, that the High Court of Lagos State could not assume jurisdiction because all the offences, if properly laid, would come under Federal Laws. We have given careful consideration to the arguments and submissions of Mr. Sogbesan and to the several sections of both the Exchange Control Act, 1962, and Customs and Excise Management Act- which provides similar or analogous offences to those charged in the information, but are unable to agree with him that in determining jurisdiction with regard to the offences charged in the information, the character of the documents is relevant, except for the purpose of determining punishment.”
The character of the document, that is one produced for purpose of customs, is irrelevant for the determination of jurisdiction.
I have no doubt this appeal must succeed and it is hereby allowed. The judgments and orders of the Court of Appeal and the Federal High Court are hereby set aside. The charges of two counts are hereby struck out. The Appellant is hereby discharged but not on the merit.
SC.174/1985
