Rev. Fr. Silas C. Nweke V. The Federal Republic Of Nigeria (2019)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

The Appellant alongside one Rev. Dr. E. C. Obiorah were arraigned at the Federal High Court Awka on offences bordering on conspiracy, obtaining by false pretence contrary to Sections 8(a),1(1) (b) and 3 of the Advance Fee Fraud and Other Fraud Related offences Act, 2006. They were also charged with issuance of dud cheque, an offence punishable under Section 1 (1) (b) (1) of the Dishonoured Cheques (Offences) Act Cap DII Law of the Federation of Nigeria 2007. The Appellant and his co-accused were arraigned before the trial Court on 4th February, 2011 for their plea. The charges were read to them but they refused to enter their plea. The matter was adjourned to a later date but before that date, the appellant and his co-accused filed a notice of Preliminary Objection challenging the jurisdiction of the Court on the following grounds: –

1. The respondent has no competence and authority to institute the proceedings;
2. The arrests and detentions of the applicants upon which this proceeding is predicated is unconstitutional, illegal and unlawful;

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This charge is brought in bad faith and is a malicious criminalization of the applicants in order for the respondent’s EFCC to collect private debts from the applicants in favour of the complainants;

4. The Court lacks subject matter jurisdiction to hear this matter which is malicious conversion of a private debt collection exercise into criminal offences;
5. The arrests, detentions, undertakings and bail bonds and arraignment notices founding this proceedings, the instant charge and entire proceedings, were commenced and continued in contempt of the orders of Courts of competent jurisdiction, in suit NoA/MISC.155/2008, suit No. A/MISC.53/2009 and suit No. FHC/AWK/157/2009;
6. The present proceedings, including the charge filed herein, constitutes an abuse of Court process;
7. The Court lacks personal jurisdiction over the person of the applicants.
8. The respondent has no probable or reasonable cause to bring this charge against any of the applicants.
9. The entire proceedings being instituted herein are incompetent.
10. The institution and continuation of the proceedings are unconstitutional, null and void.”

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This was backed up with an affidavit. The Respondent herein filed a counter affidavit of 18 paragraphs and a written address.

On 11th November, 2011, the learned Trial Judge delivered his ruling on the preliminary objection and held that it has jurisdiction to entertain the matter. The preliminary objection was thus dismissed. Dissatisfied with the dismissal of his objection, each accused filed notice of appeal at the Court below challenging the decision of the trial Court.

The Court of Appeal delivered its judgment on 2nd June, 2016 wherein the appeal succeeded partially and the Court below set aside the ruling of the learned trial Judge. It ordered that the case be remitted to the trial Court for trial de novo before another Judge.

Further being dissatisfied with the judgment of the lower Court, the appellant has appealed to this Court vide Notice of Appeal filed on 15th June, 2016 which said notice contains five grounds of appeal. From the five grounds, the appellant has distilled four issues for the determination of this appeal. The four issues are as follows: –

1. Whether the Court of Appeal was right in holding that the Federal High Court has jurisdiction to

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try the offences alleged in charge No. FHC/AWK/75C/2011 because they are termed Advance Fee Fraud when the purported offences arose from mere civil breach of simple contract between private individuals among themselves a subject matter the Federal High Court has no jurisdiction to entertain.

2. Whether the Economic and Financial Crimes Commission (EFCC) did not act outside the confines of its authority and competence by instituting the alleged Advance Fee Fraud offences against the Appellant, which offences have nothing to do with ‘Economic and Financial Crimes’ for which the EFCC was established but are mere mechanisms employed by the said EFCC to collect simple debt, allegedly owed by the Appellant to private individuals.
3. Whether the Court of Appeal was right in holding that the advance fraud offences alleged in charge No. FHC/AWK/75C/2011 did not constitute abuse of Court process in charge No.MAW/1C/2009 alleging the same offences against the Appellant concerning the same subject matter.
4. Whether the Court of Appeal was right in failing to quash charge No.FHC/AWK/75C/2011 which was instituted in violation of Court orders by stating that

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no Court has the power to prevent the police or other law enforcement agencies from performing their constitutional and statutory duties.

The above issues are contained on page 4 of the Appellant’s brief filed by Dr. E. S. C. Obiorah, of counsel on 15th August, 2016 which was adopted in this Court on 12th December, 2018 when this appeal was argued.

In the Respondent’s brief settled by Joshua Saidi Esq and filed on 14th December, 2016 but deemed filed on 12th December, 2018, two issues are formulated for the determination of this appeal. The issues are: –

1. Whether the Federal High Court has jurisdiction to try the Appellant on the offences contained in the charge.
2. Whether the charge filed at the Federal High Court Awka for which the Appellant was arraigned, constitutes an abuse of Court process.

In view of the peculiar facts of this case and the judgment of the Court below appealed against and in view of the final orders made in the said judgment, it is my view that the two issues as distilled by the Respondent captures the complaint of the appellant as espoused in the grounds of appeal and I intend to adopt the two issues in determining this appeal.

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However, before going into the appeal proper, there is a preliminary objection by the Respondent to the 5th ground of appeal and I intend to resolve this preliminary issue in accordance with the rules and practice in this Court.

The issue is whether ground 5 of the grounds of appeal is not premature at this stage when no evidence has been led at the trial. This is sequel to the appellant’s ground 5 which states: –

“The decision is unreasonable and cannot be supported having regard to the evidence.”

Without much ado, I wish to state clearly that this is a criminal matter which is yet to commence at the trial Court eight years after it was filed and yet issue of jurisdiction has travelled from that Court to this Court while the victims are still waiting for justice. I hope everything will be done with dispatch in order that justice be served without further delay.

In an application which the appellant (as applicant) filed at the trial Court challenging the jurisdiction of that Court, there was an affidavit in support of that motion. The Respondent herein also filed a counter affidavit. Based on these affidavits,

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the trial Court was able to resolve the issue of jurisdiction, of course in addition to the address of both counsel and the statute creating the Court and endowing it with jurisdiction. No motion or application to the Court can be countenanced or held to be competent without an affidavit attached to it. Such an affidavit must of course be duly sworn before an appropriate authority. See Opobiyi & Anor v Muniru (2011) 18 NWLR (pt 1278) 387, Mobil Producing Nig. Unlimited v Monokpo (2003) 18 NWLR (pt .852) 346, Chief of Air Staff v Iyen (2005) 6 NWLR (pt 922) 496 at 546.

The depositions in the affidavit in support of a motion is not like pleadings, which if no evidence is led in support is deemed abandoned. Every fact deposed to in an affidavit is akin to evidence given by a party in litigation which a Court can rely upon in taking a decision. This much was held by this Court in B. V. Magnusson v K. Koiki & Ors (1993) LPELR – 1818 (SC) per Kutigi (JSC) (as he then was) on pages 11 – 13 as follows: –

“An application or motion on the other hand is usually supported by an affidavit or affidavits with or without exhibits, depending on the nature of

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the application. It is necessary for an applicant to state fully in an affidavit the facts he intends to rely upon in seeking the prayers or order contained in the motion paper because except with the leave of Court, he will not be heard in respect of facts not contained in the affidavit…

An affidavit evidence upon which application or motions are largely decided are not the same thing as pleadings in a civil suit which are written statements (and not evidence) generally of facts relied upon by a party to establish his case or his answer to his opponent’s case. It is only in exceptional cases for example where there are irreconcilable affidavits from both sides, that oral evidence will be allowed to be led in support of interlocutory application (see Falobi v Falobi (1976) 9 – 10 SC 15, Eboh & Ors v Oki & Ors (1974) 1 SC 179, Uku & Ors v Okumagba & Ors (1974) 3 SC 35) unlike pleadings which will have to be supported by evidence at the trial as stated earlier.”

My view is that whether evidence is given in Court by a witness after he was sworn or such evidence is deposed to in a sworn affidavit, they are both evidence before the Court.

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The difference is that the former is oral evidence while the later is affidavit evidence. The preliminary objection by the learned counsel for the Respondent has no weight and is accordingly overruled. I shall now determine the appeal on the two issues adopted for the determination of this appeal.

ISSUE 1

This issue is whether the Federal High Court has jurisdiction to try the Appellant on the offences contained in the charge.

In his argument, the learned counsel for the appellant submitted that the Federal High Court has no jurisdiction to try matters relating to simple contract between parties. That such jurisdiction is given to State High Courts by Section 272 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He relies on Onuorah v K. R. P. C. (2005) 6 NWLR (pt. 921) 393, Nospeto Co. Oil & Gas Ltd vs Olorunnimbe (2012) 10 NWLR (pt. 1307) 115.

Learned counsel faulted the decision of the Court of Appeal that the provisions of Section 251(1) of the 1999 Constitution(as amended) and Section 14 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 must be read together and that when that is done, it is

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clear that the Federal High Court has jurisdiction to try any offences under the Act.

It is his view that a conjunctive reading and interpretation of Section 12 of the Act and Section 251 (3) of the 1999 Constitution shows clearly that Section 12 did not extend the scope of the jurisdiction of the Federal High Court as conferred by Section 251 (1) of the Constitution. According to him, the inclusion of count 13 about dishonoured cheque in the charge does not salvage the situation because the EFCC is already trying the appellant over the same offence in the State High Court in charge No. A/53C/2012 which is still pending. He urged this Court to resolve this issue in favour of the appellant.

In response, the learned counsel for the Respondent submitted that the EFCC was established via an Act of Parliament through its Establishment Act of 2004 and that by Sections 1, 6, 7, 12 and 13 of the Act, the Commission possesses the necessary powers to cause an investigation to be conducted on any person whose lifestyle is above his means and where the commission of crime is established, it can prosecute such offender. He contended that the offences

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which the commission shall prosecute must not be confined to the activities of government alone as argued by the appellant. He opined that any contract tainted with fraud and false pretence becomes an economic crime.

Learned counsel submitted that Section 14 of the Act confers jurisdiction on the Federal High Court, High Courts of the State and of the Federal Capital Territory to hear offences created by the Act, referring to Mobil Oil Nig Plc v IAL36 Inc. (2000) 6 NWLR (pt. 659) 146. It is his view that instead of Section 12 cited by the Appellant, it is Section14.

Learned counsel concluded that to trivialize an offence of obtaining money by false pretence to mere civil transaction between parties and since it does not relate to Government activities shows a serious misconception of Section 1 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 and that such argument should be ignored. He urged the Court to resolve this issue in favour of the Respondent.

The law is trite that jurisdiction is a threshold issue. Where a Court has no jurisdiction to hear a matter and it proceeds to hear the matter, the decision arrived at, no matter how

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brilliantly conducted and delivered, is a nullity. Because of its fundamentality, issues concerning the jurisdiction of a Court, can be raised at any stage of the proceedings on appeal or even for the first time in the Supreme Court. See NURTW & Anor v RTEAN & Ors(2012) 10 NWLR (pt. 1307) 170, (2012) LPELR 7840 (SC), Usman Dan Fodio University v Kraus Thompson Organisation Ltd (2001) 15 NWLR (pt.736)305, Onyemeh & Ors v Egbuchulam & Ors (1996) 5 NWLR (pt 448) 255.

The question may be asked: from where does the Federal High Court derive its jurisdiction It is under Section 251 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which states: –

“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters.”

The Constitution then lists Subsections 1(a) (s), 2, 3, and 4 regarding matters which the Federal High Court has exclusive jurisdiction.

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These are not issues which concern us in this appeal. Therefore, I do not intend to examine them.

The issue in this appeal relates to the phrase, “in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly.” In consequence thereof, the National Assembly enacted the Advance Fee Fraud and other Fraud Related Offences Act 2006 wherein by Section 14 thereof, jurisdiction to try offences and impose penalties under the said Act is vested in the Federal High Court, the High Court of a State and the High Court of the Federal Capital Territory. I agree with the Court below that when the provisions of Section 251 (1) of the 1999 Constitution (as amended) and Section 14 of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 are read together, it is crystal clear that the Federal High Court has jurisdiction to try the appellant under Section 1 of the Advance Fee Fraud and other Fraud Related Offences Act 2006 with which he is charged.

I must state that the law is well established that interpretation of statutes should always be given its ordinary meaning. Where the words of a statute are clear and

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unambiguous, any addition or subtraction will be tantamount to introducing illegal back door legislation or amendment. See Skye Bank Pic v Victor Anaemen Iwu (2017) LPELR – 42595 (SC), Elabanjo & Anor v Dawodu (2006) 15 NWLR (pt 1001) 76. For the avoidance of doubt, let me reproduce Section 14 of the Advance Fee Fraud and other Fraud Related Offences Act 2006 as follows: –

“14. The Federal High Court or the High Court of the Federal Capital Territory and the High Court of the State shall have jurisdiction to try offences and impose penalties under this Act.”

There is no doubt as to the intention of the legislature that all matters emanating from the said Act shall be ventilated at the Federal High Court, High Court or the High Court of the Federal Capital Territory and the High Court of the State. In other words, the three Courts have concurrent jurisdiction. The learned counsel for the appellant had argued that the Economic and Financial Crimes Commission can only investigate economic and financial crimes which relate to the activities of the government and its administration and not private citizens. Learned counsel for the respondent however

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disagreed and submitted that the Commission’s activities are not limited to government but to all financial crimes irrespective of their origin. Let us go to the Act setting up the EFCC to find out their functions and limitations. The functions and powers of the commission are prescribed in Sections 6 and 7 of the EFCC (Establishment) Act, 2004. I shall reproduce the two sections as follows:

6. The Commission shall be responsible for: –

(a) “The enforcement and the administration of the provisions of this Act.

(b) The investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instrument, computer credit card fraud, futures market fraud, contract scam,etc;

(c) The co-ordination and enforcement of all economic and financial crimes laws and enforcement functions conferred on any other person or authority;

(d) The adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crime offences or the properties the value of which corresponds to such proceeds;

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(e) The adoption of measures to eradicate the commission and financial crimes;

(f) The adoption of measures which include coordinated preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related crimes;

(g) The facilitation of rapid exchange of scientific and technical information and the conduct of joint operations geared towards the eradication of economic and financial crimes;

(h) The examination and investigation of all reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or group involved;

(i) The determination of the financial loss and such other losses by government, private individuals or organizations;

(j)Collaborating with government bodies both within and outside Nigeria carrying on functions wholly or in part analogous with those of the Commission concerning.

(i) the identification, determination of the whereabouts and activities of persons suspected of being involved in economic and financial crimes;

(ii) the movement of proceeds or propertiesderived

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from the commission of economic and financial and other related crimes;

(iii) the exchange of personnel or other experts;

(iv) the establishment and maintenance of a system for monitoring international economic and financial crimes in order to identify suspicious transactions and persons involved;

(v) maintaining data, statistics, records and report on persons, organization, proceeds, properties, documents or other items or assets involved in economic and financial crimes;

(vi) undertaking research and similar works with a view to determining the manifestation, extent, magnitude and effect of economic and financial crimes and advising government on appropriate intervention measures for combating same;

(k) dealing with matters connected with extradition, deportation and mutual legal or other assistance between Nigeria and any country involving economic and financial crimes;

7: 1. The Commission has power to: –

a. cause investigations to be conducted as to whether any person, corporate body or organization has committed an offence under this Act or other law relating to economic and financial crimes;

b. cause investigations to be conducted into the

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properties of any person it appears to the Commission that the persons lifestyle and extent of the properties are not justified by his source of income.

2. in addition to the powers conferred on- the commission by this Act, the Commission shall be the coordinating agency for the enforcement of the provisions of:

a. the Money Laundering Act,2004; 2003 No.7,1995 No. 13.

b. the Advance Fee Fraud and Other Related Offences Act, 1995.

c. the Failed Banks (Recovery of Debt) and Financial Malpractices in Banks Act, as amended;

d. the Banks and Other Financial Institutions Act, 1991. As amended;

e. the Miscellaneous Offences Act; and

f. any other law or regulation relating to economic and financial crimes, including the Criminal Code and Penal Code.

The above provisions which I have reproduced in extenso clearly show that the functions of the Commission are not limited to government activities only but wherever fraud and economic crimes have been committed. By Section 13 (2) of the Act, the legal and prosecution unit is created with functions to prosecute offenders. I agree with the Court

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below that the Commission not only has the power to investigate whether any person has committed an offence under any law relating to economic and financial crimes but it also has the power to enforce such law by virtue of Section 7 (2) of the Act set out above. What I am saying is that the Commission has the power of investigation, enforcement and prosecution of offences relating to economic and financial crimes under the Act, including the Criminal Code and Penal Code. There is nothing in those sections to suggest that it is only in relation to government activities can the commission act.

Specifically, Section 6 (b) of the Act empowers the commission to investigate financial crimes including advance fee fraud, which the appellant is charged with, money laundering, counterfeiting, illegal cash transfers etc. A person who has committed any of these offences against any other individual is subject to be investigated and prosecuted accordingly whether government or private citizens activities. Section 1 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 provides: –

1. Notwithstanding anything contained in any other enactment or law, any person who by any false

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pretence, and with intent to defraud

a. obtains from any other person, in Nigeria or in any other country for himself or any other person; or

b. induces any other person in Nigeria or in any other country, to deliver to any person; or

c. obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act.

2. A person who by false pretence, and with the intent to defraud, induces any other person, in Nigeria or in any other Country, to confer a benefit on him or on any other person by doing or permitting a thing to be done on the understanding that the benefit has been or will be paid for commits an offences under this Act.
3. A person who commits an offence under Subsection (1) or (2) of this section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine.

The above provision is clear and there is no ambiguity at all. The appellant having been charged with the offence of obtaining money by false pretences under Section 1 of the

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Advance Fee Fraud and Other Fraud Related Offences Act, 2006, which the commission is empowered to investigate and prosecute, the argument by the learned counsel for the appellant that the offences must relate to the economic activities of government and its administration and not activities of private individuals is of no moment. The issue in this matter is gone beyond simple contract relationship between two individuals particularly with the allegation of issuance of a dud cheque when the appellant knew he had no money in the account. I agree with the position of the Court below that the Federal High Court has jurisdiction to try the appellant over the offence he is charged with and under the law he is charged. This issue, as it turns out, does not avail the appellant. It is resolved against him.

ISSUE 2: –

The second issue is whether the charge filed at the Federal High Court for which the appellant was arraigned constitutes an abuse of Court process. The appellant has argued this issue under his issue No. 3.

Appellant’s contention is that charge No.MAW/IC/2009, COP vs Rev. Fr. Silas Nweke still pending at the

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Magistrate Court, Awka is duplicated in the instant charge No. FHC/AWK/75c/2010. Learned counsel for the appellant referred the Court to page 74 of the record of appeal wherein the said charge at the Magistrate Court can be found.

The respondent on the other hand contended that the appellant was charged for conspiring with one Rev. Dr. E. C. Obiorah for obtaining various sums of money in different months from various persons under false pretence contrary to the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 contrary to the charge contained at page 74 of the record pending at the Magistrate Court Awka wherein the accused standing trial in the said charge is only one and the person alleged to have been defrauded is also one victim. Also, that the charge at the Magistrate Court relates to offence committed in the month of September, 2008 contrary to the charge against the appellant and others with different months and many victims.

The law is fairly settled that abuse of Court process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issue. In Abubakar v B. O. & A. P. Ltd (2007) 18 NWLR (pt 1066)

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319 at 377 paragraphs F – H, this Court defined abuse of Court process as follows: –

“The concept of abuse of court or judicial process denotes a perversion of the system by the use of a lawful procedure for the attainment of unlawful results. Abuse of judicial process manifests itself largely in the multiplicity of actions on the same subject matter between the same parties. It is not the existence of the right to institute these actions that is protested against, rather it is the manner of exercise of this right and the purpose of doing same that is abhorred. The term is generally applied to a proceeding, which is lacking in bona fide. It has a stinge of malice.”

See also Oyeyemi v Owoeye (supra); Chief B. A. Allanah & Ors v Mr. Kanayo Kpolokwu & Ors (2016) LPELR – 40724 (SC).

After reviewing the facts of this case, the Court below made the following findings: –

“The elements of malice, want of bona fide, frivolity, vexation and oppression are completely lacking in this case. I say so because a careful perusal of the two count charge before the Magistrate Court and the 13 count charge before the Federal High Court clearly

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show that the allegations in the charge before the Federal High Court is that the Appellant obtained various sums of money under false pretences from various persons on diverse dates. The charge in the Magistrate Court is in respect of the sum of N990,000 allegedly obtained from Patrick Uyanwune in September, 2008 and N830,000 allegedly obtained from Chinedu Ajulu-Chukwu on 1st August, 2008. The offences contained in the charge before the Magistrate Court are not duplicated in the charge before the Federal High Court. Apart from Patrick Uyanmune and Chinedu Ajuluchukwu from whom various sums of money were allegedly obtained on diverse dates, the appellant is also alleged to have obtained various sums of money on diverse dates by false pretences from Franca Uyanwune, Ifeoma Ajuluchukwu and Francis Okoye, and then he is alleged to have issued a bank cheque for N1,200,000= (one million, two hundred thousand naira) when he knew that he had insufficient money in his account. Since the offences in the charge before the Magistrate were alleged to have been committed on different dates from those alleged offences before the Federal High Court, stricto senso,

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the charge before the Federal High Court cannot and does not amount to abuse of process of Court.”

The above summation by the Court below captures the totality of the grouse of the appellant in this issue. Having had the opportunity to peruse both the charge at the Magistrate Court and those before the Federal High Court, I agree entirely with the above views expressed by the Court below that there is no evidence of any abuse of Court process. The appellant has not shown that any of the charges is wanting in bona fide, or is frivolous, vexatious or oppressive. It is trite that a party complaining about abuse of Court process must go further to establish that the suits were motivated mala fide. See Central Bank of Nigeria v Ahmed (2001) 11 NWLR (pt.724) 369, Amaefule v State (1988) 2 NWLR (pt 75) 156.

On the whole, I agree with the Court below that there is no element of abuse of the process of Court by the Respondent in this case. Issue two is thus resolved against the Appellant.

Having resolved the two issues adopted for the determination of this appeal against the appellant, I hold that there is no merit in this appeal and is hereby dismissed. I affirm the

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judgment of the Court of Appeal delivered on 2nd June, 2016 which remitted the matter to the trial Court for trial de novo before another judge. In view of the fact that issue of jurisdiction and abuse of process of Court have been settled, there is no need for the trial Court to embark on it again. It should commence trial without further delay. Appeal Dismissed.

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SC.542/2016